Mott v Philip[2017] QSC 212

SUPREME COURT OF QUEENSLAND

1. McMEEKIN J: Andrew Mott and Lauren Prosser were each injured in a head on collision between their respective vehicles. The trial involved two proceedings being heard together. In one (53/15) the plaintiff is Mr Mott. In the other (54/15) the plaintiff is Ms Prosser. Each proceeding involves a claim for damages for injuries allegedly suffered as a consequence of a breach of duty by one or other of the defendants. Each involves a determination of the question of liability.

2. Mr Mott was the front seat passenger in a Ford motor vehicle being driven by the first defendant Phoebe Philip when that vehicle struck a vehicle, a Nissan Navara, being driven by Ms Prosser. The collision occurred on Ms Prosser’s correct side of the road given her direction of travel. There is no suggestion that she is to blame for the accident. There is no plea of contributory negligence against Mr Mott.

3. The collision occurred on Grasstree Rd near Sarina on 3 November 2012. Sunset was at 6:15pm that day. The collision occurred perhaps 20 minutes later and approaching on or just after dark.

4. The collision occurred just to the north of a freshly laid section of bitumen and aggregate. The Mackay Regional Council (the third defendant in 53/15) had contracted that certain roadworks be performed there, the works to be undertaken by Downer EDI Works Pty Ltd (the fourth defendant in 53/15 and the third defendant in 54/15) who had in turn subcontracted some of the works to BRW Transport & Quarries Pty Ltd (the fifth defendant in 53/15 and the fourth defendant in 54/15).

5. The Mackay Regional Council is a party only in proceedings 53/15 but it is not argued that makes any material difference. I shall refer to the third, fourth and fifth defendants in 53/15 and the third and fourth defendants in 54/15 collectively as the “roadworks defendants”. They have resolved any differences between them and defended the suit jointly.

6. I am asked to determine the issue of liability as between the first and second defendants on the one hand and the roadworks defendants on the other. The liability issues are to be determined in accordance with the provisions of the Civil Liability Act 2003 (Qld). The arguments essentially are whether the accident was caused solely by Ms Philip’s negligent driving, or solely by the state of the roadway for which the roadworks defendants are responsible, or by some combination of the two.

7. The case against Ms Philip was that she was travelling too quickly and failed to maintain control over her vehicle.

8. The case against the roadworks defendants was that the presence of the aggregate on the road rendered it dangerous to motorists and that inadequate precautions had been taken by way of warning signs and speed control signs to protect oncoming motorists from the danger.

The Roadworks

9. A patch of bitumen on the north bound side of the carriageway near to a railway bridge overpass was removed in the weeks prior to 3 November 2012. It was about 67m long^[1] and 4m wide. The evidence suggested the road surface had been a dirt surface for at least several days prior to 3 November 2012.

10. On 3 November 2012, the resealing work was undertaken. The work involved the laying of bitumen, a layer of aggregate was then spread over the bitumen and then another layer of bitumen was then sprayed over the stone. A second layer of aggregate was then spread over the bitumen. The aggregate consisted of 7mm and 14mm stones. The average spread rate was very light – 165m³/m².^[2]

11. Each layer of aggregate was rolled into the bitumen by a rolling machine. Once the aggregate was spread and rolled into the bitumen, traffic was then allowed to pass over the path for approximately 30 minutes. The patch would then be swept using a sweeper tractor and, where necessary, additional manual sweeping took place. Excess aggregate was removed.

12. The excess gravel was to be again swept on Monday morning, 5 November 2012. The “seal crew” were off-road shortly before 4pm on the day of the subject accident. The patch which is the subject of these proceedings was the last patch completed on 3 November 2012.

13. The experts are agreed that the continued presence of some loose aggregate was inevitable for work of this type. It was common to have sweeping of excess aggregate performed over several days. There can be no criticism of the way the work was done, it conformed with good practise.^[3]

14. The effect of the resealing was to obscure the centre and the north bound edge white line markings. Curve alignment markers were in place facing Ms Philip.

15. The point of impact between the two vehicles was about 34m north of the northern end of the patch.

Speed limits and signage

16. The speed limit for the area was 100kph however on Ms Philip’s approach to the overpass there were two permanent signs - a sign showing a curved road ahead and an advisory speed sign indicating a 70kph speed. They were located about 90m before the start of the rail overpass or bridge.

17. On this occasion there was present, as well, a pictorial sign^[4] positioned at the base of the advisory speed sign indicating loose stones on the road ahead. It had been positioned there only on the afternoon of the accident.

18. This was the first occasion that Ms Philip was required to traverse loose aggregate on the road surface. It was the first time she would have seen the “loose stones” sign.

Ms Philip’s driving

19. Ms Philip has no recollection of the accident due to brain damage suffered in the collision.

20. The direct evidence as to Ms Philip’s driving on the occasion in question comes from Mr Mott and Ms Prosser.

21. Ms Philip had obtained her drivers’ license on 23 April 2009 – about three and a half years before the subject accident. Mr Mott is, and was at the time of the accident, Ms Philip’s de facto partner. At the time of the accident he was a 30 year old truck driver with about 14 years driving experience. He had had about two years’ experience of driving with Ms Philip when a passenger. He thought that Ms Philip in her habits was “a conscious, (sic) vigilant driver.”^[5] He had never known Ms Philip to exceed the speed limit save by more than a kilometre or two.

22. On the evening in question Ms Philip was driving more or less in a northerly direction on Grasstree Rd. She was only a short distance from her home at Campwin Beach heading towards Mackay. She had traversed this section of roadway safely hundreds of times before. For her direction of travel she proceeded up an incline, over a rail overpass on which was a sweeping right hand bend and then down a decline.

23. In his evidence in chief Mr Mott said that the vehicle being driven by Ms Philip was travelling at between 80 and 90 kph as it passed the advisory speed sign, that it decelerated as it travelled up the incline, and was at a speed of about 85kph at a point just passed the rail bridge i.e. at the place about where the loose aggregate commenced. He had no concern about his safety to that point. He described what then occurred:

“As soon as we passed over the new aggregate, the tail end of the car kicked to the left;  Phoebe tried to correct it and we swerved to the right – so fishtailed to the right – and then she corrected again.  We fishtailed back to the left and then slid sideways down the road, colliding head-on in the passenger front side with the white Navara.”^[6]

24. Mr Mott thought that Ms Philip lost control as soon as the vehicle entered the roadworks and at one point said that the vehicle had been decelerating to that point. At another point he said that he was unsure about the deceleration.

25. Ms Prosser said that she was traveling at about 80kph, slowed her vehicle as she neared a left hand bend and then:

“Can I then ask you to tell his Honour what happened as you approached this left-hand bend?   I just noticed a very quick flash of a black car and a flash of lights and I just recall ending up tossed around in the side of the – off the road, and I then realised I’d been hit by a car.

All right.  First of all, for how long did you see the black car before it collided with you?   Seconds.  It was literally a flash.

And what did you actually see?   I just saw a car fly – a black car flying towards me.

Right.  Was it flying towards you directly in front of you?  To your left?  To your right?  Where was it coming from?   It was directly in front of me.

Okay.  That’s the best you can remember?   Yeah.

Can you describe anything about the nature of the vehicle’s travel?   It was just flying towards me.

And when you say flying, do you mean flying as in airborne?   Nearly airborne.”^[7]

26. Ms Prosser expressed an opinion that the vehicle was travelling in excess of 100kph but it is apparent, and she conceded, that she had virtually no chance to form a reliable opinion of that speed. She also said in a pre-trial statement that the Ford appeared to be travelling on only two wheels. The experts are sceptical of that and again she had no real chance to make an accurate observation.

27. While I have no doubt that Mr Mott was doing his best to give an accurate account he was plainly protective of Ms Philip and, I am sure, reconstructing the speeds and events he spoke of. He had no reason at all to be conscious of the speed of the vehicle as it headed up the incline and towards the curve and the roadworks. While I am in no way critical of him he was very likely to be in a relaxed mood having had a few drinks of alcohol and was at the time heading off to a party. His claim that there was nothing untoward in Ms Philip’s manner of driving to attract his attention may be accepted but that does not assist greatly. It was his habit and hers to exceed the advisory speed as they approached the curve. Once the vehicle was in trouble events transpired very quickly giving him little chance to observe and record events. And he was involved in what he accepted was a “very nasty accident” and received a “fairly serious hit to the head” himself.

28. There are other reasons to doubt Mr Mott’s recollections as accurate. One reason is that he has departed to a degree from his earlier versions. In his Notice of Claim form signed on the 8^th January 2013^[8] the version that he gave does not have the vehicle fishtailing. And he nominates the driver of his vehicle as the cause of the accident acknowledging that the road conditions may also have played a part. His evidence rather reverses that emphasis.

29. A second reason is that there is a point of difference between the independent evidence and Mr Mott’s recollections. He has the Ford fishtailing with the rear of the Ford moving out to the left effectively as soon as it entered onto the loose aggregate. The marks later observed on the road surface were not consistent with such a movement. While it seems the Ford did move off the road surface to the left what marks there are suggest that occurred well along the patch – there are tyre marks at about 56m past the entry to the aggregate and towards the end of the aggregate.

30. A third reason is that there is other evidence which gives an arguably more accurate view of the likely speed, at least initially.

31. A counting device, known as a MetroCount classifier, was positioned across the road and immediately after the advisory speed sign (for the Ford’s direction of travel). It measured and recorded the speed of vehicles as they passed over it. There is no real dispute as to which of the vehicles recorded is the Ford. It can be identified by the comparative speeds recorded – the vehicles are recorded as travelling at a much slower speed after a vehicle passes the counter at 6:35:29, consistent with them approaching or departing an accident scene, and by the relatively long delay before the next south bound vehicle passes.^[9]

32. The counting device measured a speed of 94.9kph for the vehicle I find was the Ford driven by Ms Philip. It also recorded the wheelbase dimension - not directly but by a derived calculation presumed to be from the time interval of the crossing of the front and rear axles. The wheelbase measurement is too short for the Ford (2.5m measured cf. 2.829m as manufactured) but that would be consistent with the vehicle accelerating at that point. No expert called was familiar with the algorithms that underlay the programmes by which the counting device calculated the speed of the vehicles that traversed it. The discrepancy in the measurement of the wheelbase caused some doubt as to the accuracy of the device but that was satisfactorily explained by Mr Amos.

33. If accurate, the picture then is of the vehicle accelerating past the counter and already travelling at around 95kph. That is quite different to the picture that Mr Mott painted. The speed at the counter does not, of course, prove the speed as the Ford entered the aggregate or when control was lost, if that is a different time. The precise distance that the counting device was located from the points of interest are not known but was estimated by one of the expert engineers to be more than 150m from the commencement of the curve, more than 220m before the start of the freshly laid bitumen patch, and more than 300m to the estimated point of collision. Ms Philip may have accelerated further or braked or done neither after passing the counter. For present purposes the point is that Mr Mott’s evidence is not necessarily a good guide to what occurred.

34. The counting device is helpful in providing apparently reliable evidence of the relative speed of the Ford compared to other vehicles that travelled over the counter. The Ford was the 19^th such vehicle to cross the counter, travelling in Ms Philip’s direction, in the one half hour or so before the accident. She was recorded as the second fastest. No other driver lost control of their vehicles in the aggregate.

35. The experts were agreed that there was quite a high probability that the speeds of the two vehicles were similar at the time of impact, that the available evidence supported a speed of at least 60kph, and quite possibly as high as 80kph. That upper limit was derived from Ms Prosser’s evidence but it is I think relevant to note that Ms Prosser said that she had slowed from that speed as she approached the bend in the road ahead. These conclusions were not in contention.

The effect of the aggregate

36. There are three pieces of evidence that give some indication of the impact of the aggregate.

37. First, as just mentioned, the records of the traffic counter indicate that 18 vehicles had passed through the area travelling in the north bound direction and before Ms Philip. None had had any difficulty, so far as is known, with the aggregate.

38. Secondly, a Mr La Franchi was called. He was first on the scene after the accident occurred. He had travelled through the area several times on the day of the accident and once after the aggregate had been laid. At around five to five thirty that evening he had travelled through the roadworks at 100kph and without difficulty. He had observed a friend to also travel though that area without difficulty at the same speed. Mr La Franchi’s vehicle was fitted with off road tyres suited to extreme conditions. He said that in his experience a normal sedan could travel through roadworks of that type at 100kph without difficulty.^[10]

39. Thirdly, the engineers have examined the available evidence. They have not had the advantage of seeing the depth or extent of the aggregate that was in place at the time.

40. The experts advise that the minimum coefficient of friction available on the surface was in the order of 0.37. The study on which the opinion was based provided a range of likely coefficients of 0.37 to 0.47.^[11] The experts point out that if the Ford was travelling just to the left of the centre line as it rounded the curve, consistently with the usual practice and with the wheel marks in the aggregate, the drivers’ side wheels would have been travelling on very little aggregate and so subject to a higher coefficient of friction. The study they refer to was done assuming both sets of wheels were travelling on aggregate. It follows that the likely coefficient of friction available if the Ford followed the usual path was higher than 0.37.^[12]

41. Adopting the 0.37 coefficient of friction the experts concluded that given the radius of the curve, the camber of the road, and the known characteristics of vehicles of the type in question, the Ford would need to be travelling at a speed in the order of 115kph to lose traction – assuming no braking, accelerating or untoward movement of the steering wheel. That is, for a slide to occur simply because of the vehicle’s speed being too great to maintain its path of travel the speed would need to be at that level. Adopting a higher coefficient of friction – say 0.45 – the speed would need to be approaching 120 to 130kph.^[13]

42. The lack of any markings indicating that the Ford left the bitumen surface at or near the commencement of the patch suggests that the speed and manner of driving at that point did not create an excessive demand on the grip available.^[14] A speed of 80kph as may have been the speed at impact, or 95kph as suggested by the counter, would both comfortably fall within the expected margin of safety.

43. The evidence is all consistent in showing that a sedan of the type being driven by Ms Philip ought to have been able to traverse the roadworks safely if driven competently and within the speed limit. It also suggests that speed alone has not caused the accident, or if it did it was very high.

What caused the loss of control?

44. All this suggests that to initiate the loss of control that obviously occurred Ms Philip has accelerated, braked or steered the vehicle in some way to significantly lessen the available grip on the road surface and that she did this a good distance along the patch.

45. The experts concluded in their joint report^[15]:

“It appears that the Falcon travelled at least 56m along the patch before losing control and starting to slide sideways. Mr La Franchi’s observations suggest the Falcon strayed onto the shoulder prior to or during loss of control.

The manner of the loss of control described by Ms Prosser and the location at which it occurred suggests that the driver of the Falcon was travelling faster than 85km/h and/or she accelerated and/or tightened her turn radius after successfully negotiating at least 56m of the patch and thereby initiated a yaw.

Mr La Franchi’s observations suggest a scenario in which the Falcon strayed onto the unsealed shoulder and, in tightening the Falcon’s turn radius to return to the travel lane, lost control and initiated a yaw. This may have been a consequence of difficulty in detecting the edge of the lane in lighting conditions, at the speed involved, given the absence of road markings and guideposts until North of the patch. (Photo 2)

Had Ms Philip’s speed of travel been 60kph or less, the likelihood and consequences of loss of control on the patch would have been reduced compared to travelling at 85 kph. The curve had an advisory speed of 70 km/h, but no temporary speed limit was in place for the patch having been rolled, but unswept, at the time of the incident.”

46. Dr Grigg pointed out in a subsequent report^[16]:

“It is noted that the northern end of the patch occurs at about the location where it would be expected that a driver might start to accelerate after negotiating the curve and heading onto the straight. Such an action in a high-powered rear wheel drive car would have the potential to initiate a yaw, especially if the nearside was not a on a high friction surface such as on the shoulder of the road. In any case, in light of Mr La Franchi’s description, there appears to be a possibility that the loss of control was not initiated on the patch but slightly to the north of it.”

47. The reference in each set of opinions to Mr La Franchi’s observations or description is a reference to the witness’ earlier statement that he observed certain markings off the shoulder of the road. He repeated the fact of having made that observation in his evidence^[17] but by the time of trial could not recall their location. The marks were consistent with the Ford leaving the road surface and travelling onto the road shoulder at a now unknown location but, given the marks on the bitumen surface, more likely well along the patch.

48. In summary there are various possible scenarios and none can be shown to be necessarily more probable than any other.

49. It seems very likely that the Ford did enter onto the shoulder of the road at some location. One possible scenario is that Ms Philip steered her vehicle onto the shoulder of the road and accelerated from there as opined by Dr Grigg. Why her vehicle would have left the bitumen surface cannot be known. Ms Philip may have steered there deliberately or inadvertently. She may have accelerated deliberately or inadvertently.

50. Senior counsel for the first and second defendants submitted that the absence of edge and centre line markings contributed to such a manoeuvre. While that is a possibility, as the experts pointed out, I cannot see it as a probability. What markings there are on the road surface that appear to be related to the Ford’s movements indicate that the vehicle left the bitumen surface when well along the length of the patch. That would place the vehicle at a point after the first of the curve alignment markers and close to the second of those markers, I refer here to the prominent permanent yellow coloured signs indicating the presence of the curve.^[18] The patch was only 4m wide and its edge should have been obvious even given the failing light. It is difficult to see how a reasonably alert motorist could lose their bearings on the road in such a location and with those markers present.

Should a 60 kph sign have been erected?

51. The only complaint made against the roadworks defendants is that a compulsory speed sign limiting speeds to 60 kph through the area under repair was not erected after the sealing work was finished for the day.

52. One expert, Mr Hillier, was of the view that such a sign was essential to alert road users to the hazard ahead.^[19] He considered that the “loose stones” sign in conjunction with the advisory speed sign was “unusual, inappropriate and inconsistent with the post-laying operating conditions at that time, as per pertinent industry and State specifications”.^[20]

53. The reference to industry specifications I take to be a reference to section 14.8(b) of the QDTMR Technical Specification MRTS11 referred to at para 3.89 of his report^[21] which provides:

“in areas where the posted speed limit exceeds 60km/h and which are opened to  traffic prior to the final sweeping, the Contractor shall install temporary ‘loose stones’ and ‘slippery’ warning signs and temporary speed signs not exceeding 60km/h until the maximum allowable loose aggregate requirements…are met…”

54. The difficulty in accepting that the specification is applicable here is that I have no evidence that the “maximum allowable loose aggregate requirements” had not been met. As well proof of a failure to comply with some industry specification is not necessarily evidence that a person has breached a duty of care: Chicco v. Corporation of City of Woodville [1990] Aust Torts Reports 81-028 67,893, 67,895, 67,897; Finn v The Roman Catholic Trust Corporation For The Diocese Of Townsville [1997] 1 Qd R 29 at 36 per Thomas J (McPherson JA and Williams J agreeing).

55. What is in issue here is the practical effect on the driving behaviour of passing motorists of the combination of signage that was present on the day. The reason that Mr Hillier held the view I have quoted, I think was best expressed in the following exchange in cross examination:

“And can I put it to you that when you look at a combination of signs – that is, the advisory sign I’ve just referred to, and the loose stones sign, that warns a driver, does it not, that the driver’s going to (a) perhaps consider a speed of about 70 kilometres per hour, and also warns the driver that there is a flying stone hazard ahead;  that’s correct?   In practical terms it may well do, but it constitutes very poor traffic management practice.  The advisory speed plate is there to – or in harmony with the curved speed sign.  It has no relation to the loose aggregate sign, how the manual traffic control device is established and traffic management in general terms, and, in my opinion, as a professional, I think it’s very poor practice to have left the advisory speed sign.”^[22] (my emphasis)

56. If the signage in place in practical terms alerted motorists to consider a lesser speed and to be aware of the fact that the road surface ahead now contains loose stones – as is obvious – then the issue is what impact should that reasonably have had on motorists? It is not to the point to say that another effect of the advisory sign was to act in harmony with the “curved road ahead” indication. Nor is it accurate to say that the advisory sign “has no relation to the loose aggregate sign”. True it was a permanent sign and the other a temporary one. But the loose aggregate sign was positioned at the base of the advisory sign. It alerted motorists that the road ahead had two issues that needed to be brought into account rather than one – a curve and loose stones.

57. As well both the expert and lay evidence shows that the area could be traversed safely at the speed limit of 100 kph.

58. So I am not persuaded that there is a convincing reason proffered to support the need for a 60kph sign.

59. There is the further issue of the assistance an expert can give in this area. Experts may be able to assist with any studies that have been performed that inform the answer to the question of how a motorist is likely to behave. But absent some special study it seems to me that I am not obliged to act on the view of an engineer, no matter how experienced, and arguably am not permitted to do so if his opinion is not based on some special study: Dasreef Pty Ltd v Hawchaw (2011) 243 CLR 588 at 603-604 [35] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. In effect I am in as good a position as the expert to decide on the matter.

60. I note that under the contract the roadworks defendants were not obliged to have in place a compulsory 60 kph speed sign. That of course is no answer to the issue of whether a failure to place one was in breach of the duty owed to motorists. But it can inform the decision to know that those in charge of the procedure, who were also experienced in this form of work, did not think that the placement was reasonably necessary.

61. The need to place the compulsory speed sign turned, obviously enough, on the extent of the hazard presented by the roadworks. The evidence is that the spread of aggregate was light and minimal. The evidence that 18 motorists had traversed the area at varying speeds without incident, and Mr La Franchi’s evidence, both suggest that the aggregate that was there did not present a significant hazard even to motorists who ignored the advisory sign completely. The evidence of the behaviour of the 18 motorists in fact relates only to the last half hour before the accident. Traffic had been passing over much the same road conditions for two and a half hours by the time of the accident. Mr La Franchi said that it was a busy road. The probability is that many dozens of vehicles passed through the roadworks without incident.

62. I am not persuaded that the roadworks defendants breached their duty of care by failing to erect such a sign. It follows that the roadworks defendants are not in breach of duty.

63. Given my view it is not necessary to consider the effect of sections 34-37 of the Civil Liability Act 2003.

Would a compulsory 60 kph sign have made a difference?

64. In case I am wrong in that view I will consider the question of causation.

65. The issue here is whether the presence of a compulsory speed sign would have prevented the loss of control occurring or otherwise avoided or materially lessened the likely force of the collision between the vehicles sufficiently to have altered the outcome i.e. the level of injury?

66. The starting premise is that the presence of such a sign would have caused Ms Philip to drive at a lesser speed. This depends, to a degree, on acceptance of Mr Mott’s claim that Ms Philip had never driven over the speed limit by more than a kilometre or two per hour and Ms Philip’s evidence to much the same effect - that she was a careful driver who obeyed speed signs.

67. The difficulty in accepting the premise is that what evidence there is suggests that Ms Philip paid no regard to the advisory sign and quite evidently no regard to the “loose stones” sign. As Mr Mott conceded had he been driving and had he observed the “loose stones” sign he would have been alerted to the fact that there were changed conditions ahead and altered his usual behaviour in driving through the overpass. His answer reflects what any reasonable motorist should have thought and done. The presence of the “loose stones” sign did not appear to affect Ms Philips’ behaviour, so far as is known, at all.

68. It can be assumed reasonably confidently that Ms Philip ignored the advisory sign because of her experience that she could safely round the curve at speeds much greater than 70kph. This was her habit. One effect of the “loose stones” sign should have been to alert her to changed conditions ahead. The evidence suggests that she ignored that sign. The issue then is whether a speed control sign, similarly placed to alert her to changed conditions ahead, would have altered her ingrained habit and her apparent confidence in her ability to round the curve at speeds far above 70kph.

69. It can be acknowledged that the intended purpose of the “loose stones” sign was different in effect to the intended purpose of a speed limit sign. One commands a response the other does not. There are three reasons that I can identity for accepting the argument that the limiting sign may have had an effect. The first is that there is no doubting that a percentage of the population do comply with speed limits. However daily experience on the highways in this region show that the percentage is nowhere near 100%. Whether motorists do when confronted with a new sign in a location that they know well, and know they can traverse safely at 100kph, is the issue. I assume however that a majority would react by at least lessening their speed. The second is that Ms Philip had not had any speed infringement notices issued to her in her three years of driving. The third source is the evidence of Mr Mott and Ms Philip mentioned above. As mentioned I have significant difficulties with Mr Mott’s reliability when it comes to protecting Ms Philip.

70. The onus is on those asserting that the sign would have had a causative effect. I must be positively persuaded on the balance of probabilities that the causal effect is shown. The considerations seem to me to be very finely balanced. With some hesitation I conclude that if a 60 kph sign had been present it would have had the effect of at least causing some moderation in Ms Philip’s speed.

71. The second step in the reasoning is that if Ms Philip had been driving more slowly she would not have lost control. While as a general proposition it can be accepted that travelling at a slower speed would enhance the capacity of most drivers to preserve control over their vehicle there are two difficulties here.

72. The first is that it is not known what caused Ms Philip to lose control. It may have been a decision to suddenly accelerate as she neared the end of the patch as Dr Grigg surmised. It may have been that she was paying insufficient attention to her driving and wandered just off the bitumen onto the shoulder and decided to accelerate from there.

73. The second difficulty is that the available evidence is as consistent with Ms Philip travelling at a speed not necessarily much higher than 60 kph by the time of impact as at any higher speed. The experts agreed that there was a “high probability that both vehicles were travelling at approximately 60 to 80 km/h or so when they collided.”^[23] That range is consistent with Ms Prosser’s evidence (Ms Prosser had her vehicle as travelling at 80 kph before she commenced to slow for the approaching bend), the physics as explained by the experts (showing that the vehicles were doing about the same speed at impact) and the severity of damage (as opined by the experts).

74. I am conscious of the opinion the experts agreed on:

“Had Ms Philip’s speed of travel been 60kph or less, the likelihood and consequences of loss of control on the patch would have been reduced compared to travelling at 85 kph.”^[24]

75. The opinion must necessarily assume a lessening of speed between the time that control was lost and the time of impact, given the consensus that 60kph was a possible approximate impact speed. I am not sure of the basis for such an assumption. The further along the patch that the control was lost the lesser is the likelihood of there being a significant difference between the speed at the time control was lost and the speed at impact. However a major problem is that it is not known that Ms Philip was travelling at a speed of 85kph or greater at the time she lost control. That is, the difference between the speed of the Ford at the time control was lost and 60 kph may have been less and perhaps much less than the 25kph difference adopted in the opinion quoted. It would follow that the conclusion may not be a valid one – that is the outcome may not have been different

76. In my view it is not shown on the balance of probabilities that the placing of a speed control sign would have affected the outcome.

Was Ms Philip negligent?

77. The pleading of the case against Ms Philip involves very general allegations of negligence. Mr Mott’s pleading covers the ground: driving without due care and attention; driving at a speed which was excessive in the circumstances; failing to maintain proper control; causing, permitting or allowing the vehicle to yaw into oncoming traffic; and failing to stop, slow down or steer clear of oncoming traffic.

78. Senior counsel for Ms Philip contended that it was not shown that Ms Philip’s driving fell below the standard expected and so not shown that she did breach her duty of care to other road users or that any breach was causative of any injury. The submission was that the probabilities favour a finding that as the Ford traversed the patch it was travelling at about 80 to 85 kph, that the counter showed that many vehicles evidently travel at speeds equal to or greater than that through the overpass, that speed alone did not result in Ms Philip losing control, and that there was no evidence that Ms Philip had driven the vehicle in any way that fell below the standard expected.

79. I reject those submissions. They depend for their acceptance essentially on the evidence of Mr Mott being accepted, a premise which I am not prepared to adopt.

80. Once Mr Mott’s evidence is rejected as unreliable there is not a great deal that is known of what occurred and why. Each of the other parties urged that Ms Philip was negligent principally on the basis that the Ford was travelling at great speed. Uninstructed by the expert evidence I would have been inclined to accept the view that the speed of the Ford was very substantial. There are four pieces of evidence that point that way:

1. Ms Prosser’s impression that the vehicle was “flying”. While she may not have had an opportunity to form a view as to the actual speed of the vehicle one would expect that she could tell the difference between a vehicle travelling at 60kph and a vehicle going at the highway speed or greater;

2. The damage to the vehicles hardly seems consistent with two cars colliding at 60 kph – the vehicles are very substantially damaged;

3. The evidence of the counter – that the Ford was travelling at nearly 95 kph and accelerating some 300m back from the collision point;

4. The fact that vehicles could round the bend safely at speeds even greater than 100 kph – established by both the lay evidence and the experts – and that this vehicle did not.

81. Despite those features the experts are agreed that the evidence is consistent with the vehicles travelling at a similar speed at impact and Ms Prosser seems confident that she was traveling at something less than 80kph. There seems little prospect of much braking of the Ford from the time control was lost by Ms Philip to impact. Ms Prosser was plainly honest. Given the lack of contest concerning the reliability of Ms Prosser or of the expert’s opinions, I feel constrained to adopt the latter.

82. Effectively Ms Philip relies on the lack of evidence as to why she travelled onto the incorrect side of the road. It has long been the law that the unexplained veering out of control of a motor vehicle could itself bespeak negligence. So in Davis v Bunn (1936) 56 CLR 246 where Dixon J said at 260:

“In the present case, unless and until the cause of the vehicle's change of direction was explained, I think mere proof that it suddenly swerved from one side of the road to the other and hit the plaintiff's stationary car would constitute sufficient evidence of negligence. It is true that such a thing is consistent with more than one cause not implying negligence. For example, the driver might have fainted, or the steering gear have failed through no fault of the defendant. But such unavoidable events are sufficiently unusual to raise a probability that the erratic course of the vehicle is to be accounted for by some failure in due care, whether in its management on the roadway or in the maintenance of its mechanical efficiency. In the absence of all explanation, the probability would be high enough to justify an inference in the plaintiff's favour.”^[25]

83. The High Court re-examined the principles behind reasoning of this sort in Schellenberg v Tunnel Holdings Pty Ltd.^[26] Gleeson CJ and McHugh J there said of the inferential reasoning process summarised in the Latin phrase res ipsa loquitur:

“Piening v Wanless^[27] and Anchor Products Ltd v Hedges^[28] as well as other cases in this Court make it clear that a plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided that the tribunal of fact concludes that:

1.there is an "absence of explanation" of the occurrence that caused the injury;

2.the occurrence was of such a kind that it does not ordinarily occur without negligence; and

3.the instrument or agency that caused the injury was under the control of the defendant.”^[29]

84. Davis v Bunn^[30] does not decide this case. The decisions in other cases on the facts there cannot of course decide this case.^[31] I have examined the various issues that are relevant above.

85. Here, one inescapable fact is that Ms Philip managed to lose control of her vehicle. There is no suggestion here of mechanical failure, or a physical problem with Ms Philip that might suggest an explanation for the loss of control.

86. As analysed above there seems no reason why any competent driver would lose control of their vehicle merely because of the presence of the aggregate that was on the road surface. An inference can be drawn from the fact that at least eighteen drivers, and perhaps many more, had travelled through there before her without any difficulty. That is as one would expect given the coefficients of friction available. The argument that the traction available would have changed significantly from one car to the next is unsupported by any evidence and improbable.

87. The various possibilities seem to be that Ms Philip has either accelerated suddenly, or turned her steering wheel suddenly, or braked suddenly, or advertently or inadvertently put her vehicle out on to the road shoulder, or done some combination of these and so lost control. A competent driver should not have. Why she did so cannot be known.

88. In my view the conditions identified in Schellenberg are satisfied here.

89. I am satisfied that Ms Philip was negligent in her manner of driving.

Conclusions

90. Judgment should be entered for each plaintiff against the second defendant.

91. The claims against the roadworks defendants, by each of the plaintiffs and by the first and second defendants should be dismissed.

92. I will hear from counsel as to the appropriate orders in light of these reasons.