Carolyn Joan Flynn As Widow of the Late Leonard Thomas Flynn v Commonwealth of Australia [1987] ACTSC 75 (13 November 1987)

SUPREME COURT OF THE ACT

CAROLYN JOAN FLYNN as widow of the late LEONARD THOMAS FLYNN v. COMMONWEALTH
OF AUSTRALIA
S.C. No. 113 of 1984
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - action by widow on behalf of herself and dependent children of deceased - Compensation (Fatal Injuries) Ordinance 1968 - contributory negligence.

Negligence - motor vehicle accident - design construction and installation of traffic control device - role of National Capital Development Commission - role of Director of Traffic - National Capital Development Commission Act 1957 s.11; Seat of Government (Administration) Ordinance 1930 s.8(1); Motor Traffic Ordinance 1936 ss.109, 110.

Negligence - Commonwealth as highway authority - role of National Capital Development Commission - nature and scope of duty of Commonwealth to persons who suffer loss as a result of its failure to take action in accordance with its functions or as a result of the negligent carrying out of its functions - relevance of principles applying to public authorities.

Damages - claim under Compensation (Fatal Injuries) Ordinance 1968 - method of assessment of damages for loss of dependency.

McDonogh v. The Commonwealth of Australia (1985) Australian Torts Reports p.69,553

The Council of the Shire of Sutherland v. Heyman and Another [1985] HCA 41; (1984-1985) 157 CLR 424

McCauley v. Hamilton Island Enterprises Pty. Ltd. (unreported Federal Court of Australia, 10 June 1987)

Luntz, Assessment of Damages 2nd edition

HEARING

CANBERRA
13:11:1987

ORDER

The title of the proceedings be amended by striking out the words "as executrix of the will of Leonard Thomas Flynn" and replacing them with the words "as widow of the late Leonard Thomas Flynn deceased".

There be judgment for the plaintiff in the sum of $238,589.00.

Of the total judgment sum the defendant is to pay into court $49,500 from which is to be paid out to the Public Trustee the sum of $22,500 to be dealt with by him on behalf of the child Amanda Maree Flynn and the sum of $27,000 to be dealt with by him on behalf of the child Damien Patrick Flynn.

DECISION

This is a claim under the Compensation (Fatal Injuries) Ordinance 1968 by Carolyn Joan Flynn on behalf of herself and the dependent children of Leonard Thomas Flynn, deceased. The heading to the writ and statement of claim identify the plaintiff as the executrix of the will of Leonard Thomas Flynn. However, there is no allegation in the statement of claim nor was there any evidence that the plaintiff was appointed as executrix of the will of the deceased. In the absence of evidence I presume that no action was commenced by and in the name of the personal representative of the deceased within six months after the death of the deceased, and that the action is properly brought by the plaintiff pursuant to s.13(2) of the Ordinance, the plaintiff being a person for whose benefit an action under the Ordinance may be brought. I order that the words "as executrix of the will of Leonard Thomas Flynn" be struck out of the title of the proceedings and be replaced by the words "as widow of the late Leonard Thomas Flynn deceased".

2. Neither the death of the deceased nor the cause of death was admitted on the pleadings. There was admitted into evidence a record of the findings of the coroner on 25 June 1982 that the deceased died at about 10.35 p.m. on Friday, 11 June 1982 at Royal Canberra Hospital, Acton from brain injury accidentally sustained on 4 June 1982 in Lathlain Street, Belconnen at a point approximately 150 metres south of Luxton Street. The evidence was admitted without objection and, as the question of death and cause of death no longer seems to be in issue, I accept the coroner's findings.

3. It is clear that the injuries sustained by the deceased occurred when the vehicle he was driving north in Lathlain Street overturned. However, there were no witnesses to that occurrence and it is necessary to refer to the evidence in order to determine as best one can how it came about that the vehicle overturned.

4. The history of the construction of Lathlain Street is relevant, but it is necessary to say something further about its physical condition as at 4 June 1982. Lathlain Street then and now runs north and south on the western edge of the Belconnen Town Centre. In the language of the traffic engineers, it is classified, informally, as a collector street, that is to say its function is to pick up traffic from the local road network and feed it into a sub-arterial road which then in turn feeds the traffic into a major arterial road. On the eastern side of Lathlain Street there are public parking areas. On the western side there are a number of side streets which give access to commercial areas. Also on the western side in Lathlain Street itself are a number of public buildings including the Belconnen Police Station. At its northern end Lathlain Street forms the leg of a T-intersection with Luxton Street. More than three hundred metres south of that intersection there is a T-intersection with Cohen Street which runs to the west from the intersection. About half way between Cohen Street and Luxton Street there is a driveway-like entrance from the western side of Lathlain Street to the Belconnen Fire Station.

5. As at 4 June 1982 there was a median strip in Lathlain Street which ran south from the intersection with Luxton Street for a distance of 127 metres. The median strip was about 4.5 metres wide and 12 cm high. It was constructed of concrete. It bore no distinguishing features or structures, but what was remarkable about it, apart from its width, was its southern end. It terminated bluntly, the end shaped in a very shallow curve, a curve so shallow that to the casual lay observer the end might have appeared to have been cut off square, with the corners rounded. This southern end of the median strip was approximately forty metres north of the entrance to the fire station.

6. The median strip divided the carriageway into two lanes for northbound traffic and two lanes for southbound traffic. Each lane was 3.4 metres wide. Each of the two lanes on either side was divided one from the other by a broken white line. However, there was no marking on the road surface south of the southern end of the median strip, at least not in that vicinity. It was 216 metres to the south of the median strip, in the vicinity of Cohen Street, before there were double unbroken lines on the road surface to divide the southbound portion of the carriageway from the northbound. As far as the street lighting was concerned, I accept the evidence of those witnesses who stated that the lighting was reasonable in the vicinity. There is a suggestion that one street light in the immediate vicinity of the southern end of the median strip was out of operation, and whilst this may be so, there were other lights at distances of about fifty metres.

7. For vehicles proceeding north in Lathlain Street there is a slight rise approaching the median strip.

8. At the time of his death, the deceased was a Constable in the Australian Police Force. His duties involved the serving of summonses and the execution of warrants. He was based at the City Police Station. He lived with his wife and children in Southern Cross Drive, McGregor. His duties took him to the Belconnen Police Station regularly. He often worked shift work. I am satisfied that the deceased was reasonably familiar with the road conditions in Lathlain Street, but I am not satisfied that he had driven over it so frequently at night time that the deceased should be fixed with knowledge of the precise nature and condition of the southern end of the median strip.

9. In his spare time the deceased carried on business as a lawn-mowing contractor and fence stainer. On the evening of 3 June 1982 he had left home at about 5 p.m., informing the plaintiff that he was going to see someone about a contract.

10. At about 12.30 a.m. on Friday, 4 June 1982, Mr. Robert Joseph Lilley, a district officer of the ACT Fire Brigade, was on duty in the fire station. He heard the sound of a car crash and through the window saw a utility vehicle on Lathlain Street, on its wheels but rolling backwards towards the western kerb. He also saw the lower portion of a person rolling under the vehicle. After making an immediate call for help he attended the scene and found a male person under the vehicle tangled up in a large white cloth. Within a minute or two an ambulance had arrived from the ambulance station, which is also situated in Lathlain Street only a hundred metres or so away. An ambulance officer, Mr. Kenneth Henry Helmers, was unable to remove the body from beneath the vehicle until further assistance was received from the police and fire brigade whereby the front of the vehicle could be lifted. Mr. Helmers noticed what he described as a "reasonably prominent" smell of alcohol on the breath of the person. Breathing was shallow and there were obvious serious head injuries. Mr. Helmers did not recall seeing the person being entangled in a white cloth.

11. Police also attended the scene, notably in the person of Sergeant Geoffrey Graham Brown, who took a number of photographs and arranged for a scale plan to be drawn at a later stage. He saw a Toyota one ton utility facing in an easterly direction and a number of marks and features on the roadway that were incorporated in a sketch plan which was admitted into evidence. Sergeant Brown examined the southern extremity of the median strip and saw evidence of substantial and repeated damage, but none of that appeared so recent that it could be connected with the Toyota utility. Tyre scuff or burn marks were found on the roadway. One such mark led from a point about a metre south of the southern end of the median strip and five metres east of the western kerb to a point about nineteen metres to the north and finishing at about two metres east of the western kerb. Another tyre burn mark led from a point about seven metres north of the southern end of the median strip and just under five metres east of the western kerb to a point about thirteen metres north; that point was about four metres east of the western kerb. About three metres north of that point there then commenced two gouge marks on the road surface, quite close to each other, about fifteen metres in length leading from a point about three metres east of the western kerb, running northwards a distance of about fifteen metres, until they reached the western edge of the median strip. There was then another six metres to where the Toyota utility was observed to be facing roughly east across the carriageway and straddling the two lanes. There were a number of scattered items on the roadway in the vicinity including a substantial amount of a paintlike substance. It was apparent that these items had fallen from the back of the utility.

12. Over objection Sergeant Brown was allowed to give some opinion evidence as to the conclusions that he drew from his observations. In 1982 he had had over ten years experience in investigating motor vehicle collisions, and during about half of that time he was supervising police activities at accident scenes and attended virtually all serious accidents in the Australian Capital Territory during the last three years. Sergeant Brown formed the opinion that the marks on the roadway, together with the other material referred to, led to the conclusion that the southern most tyre marks were caused by the left wheel or wheels of the vehicle as the vehicle was swung to the right, that the vehicle then rolled over onto its side and slid along the road upside down on that portion of the road where the gouge marks appear, and then, at the northern end of the gouge marks and alongside the median strip, came back onto its wheels before it rolled backwards and finally came to rest. That sequence of events is indeed accepted in principle by all the other expert witnesses who gave evidence in the case. Where there was dispute among the experts, however, was on the question of what it was that caused the driver to swing hard to the right just south and west of the median strip. I am not satisfied that prior to the driver taking that action there had been any impact between the vehicle and the median strip. I shall turn to this question of causation later.

13. It is an essential part of the case for the plaintiff that the design and construction of the median strip did not measure up to the standard appropriate at the relevant time. The question of foreseeability of injury and the question of the lack of reasonable care taken to avoid injury are closely bound up on this aspect. I have little hesitation in coming to the conclusion that a median strip of such width without any warning sign or device at all constituted a foreseeable risk of injury to persons driving at night time northwards in Lathlain Street. Photograph No. 11 in exhibit A, although taken during daylight, is eloquent testimony, in my view, to that fact. I reject the argument, supported to some extent by the evidence of expert witnesses called on behalf of the defendant, to the effect that if the median strip presented a foreseeable hazard only to the careless driver then it fell outside the scope of a claim for negligence. I reject that argument insofar as it is intended in the first place to relate to the question of foreseeability. Foreseeability is directed towards the possibility of injury to any person who might reasonably be expected to be affected by a defendant's conduct. The concept of reasonableness is confined here to the extent of foresight. It has nothing to do with whether the persons who might be affected behave reasonably or unreasonably. If it were otherwise, then it would follow that no duty of care was owed to a person who failed to take reasonable care for his or her own safety, and there would be no need for rules relating to contributory negligence.

14. In the second place, the argument, as I apprehend it, is intended to relate to the standard of care to be expected of those concerned in the design, construction and installation of traffic control devices such as median strips. The most telling evidence on this aspect of the case came from a senior officer of the defendant, the Commonwealth, called in the plaintiff's case. He was Dr Edward Paul Ratcliffe, the Director of Traffic in the then Department of Territories. Dr Ratcliffe said that he, and his Department, would have expected certain features to have been incorporated in the design and construction of a median strip, all of which were lacking in the structure in question. All these features relate to the safety of the median strip, that is to say, to the risk presented to drivers and persons in vehicles approaching the end of the median strip. The first feature is that it is appropriate to mark the roadway approaching the median strip with a painted line and for that line to be flared to form a painted island. Prolongation of the centre line through the island should be in such a position that it passes to the lefthand side of the island, directing the motorist to do likewise. A second desirable feature in the design is that the shape of the nose should be such that it is offset to the left by about half a metre, which would have the effect of deflecting a vehicle which was driven into it. Yellow reflective pavement markers may be set into the centre line. Similar reflective markers may be set into the lefthand side of the median strip itself where it is flared. Both these features would warn the approaching driver of the existence and position of the median strip. The nose of the median strip may itself be painted with a reflective paint. A "Keep Left" sign may be installed within about five metres of the nose of the concrete island. The desirability and practicability for these steps to be taken emerges clearly by the fact that by 29 June 1982, less than a month after the incident, the Commonwealth, through its Department of Housing and Construction, had drawn up detailed plans for the carrying out of the steps and, according to the evidence of Dr Ratcliffe, they were all in fact subsequently carried out. Who carried them out I do not know. They are all recommended features for the design and construction of median islands as set out in the "Interim Guide for the Design of Intersections at Grade" published by the National Association of Australian State Road Authorities in 1979. Whilst the Commonwealth was not a member of the Association in 1982, it is clear from the evidence of Dr Ratcliffe that the standards adopted by the interim guide were at all relevant times the standards which the Commonwealth itself adopted for the purpose of the design and construction of median strips within the Australian Capital Territory. I reject the argument put on behalf of the Commonwealth that the plaintiff's case is one of being wise after the event and that there is no evidence that the acceptable practices to which Dr Ratcliffe made reference were recognized at the time the particular median strip was designed or constructed.

15. The evidence of Dr Ratcliffe was supported by that of Mr. John Jamieson, a very experienced and highly qualified traffic engineer. Evidence to the contrary, that is to say to the effect that the median strip did not represent an unreasonable danger and that it was not reasonable to expect those responsible for the design and construction of the median strip to incorporate in it the safety features to which I have referred, was given by Mr. Boris Osman and Mr. Bruce Ronald Fishburn. Mr. Osman of Oatley, New South Wales, whose qualifications and experience are well known, has experience and qualifications over a wide area, but his primary field of expertise is in mechanical engineering and more particularly in safety measures to be taken in factories and similar work places. Mr. Fishburn is a well qualified road engineer, but it has to be borne in mind that what is in question in this case is not so much the design of the roadway but the design, construction and installation of a traffic control device. Were it otherwise, the body responsible might not be the Commonwealth but the National Capital Development Commission, a subject on which I will say something further in a moment.

16. I proceed then from the conclusion that the design and construction of the median strip involved the creation of a risk to motorists on Lathlain Street which might have been avoided by the use of reasonable care. How is it then that the Commonwealth of Australia becomes liable, or would have become liable to the deceased had he lived, for that failure to exercise reasonable care? The case proceeded, and the written submissions were presented, as if the Commonwealth were a highway authority. Yet there is no allegation in the statement of claim to this effect. If the point had been taken on behalf of the defendant, I should have inclined to the view that the statement of claim is deficient in that it does not allege facts which establish that the Commonwealth owed the deceased a duty of care. Paragraph 1 of the statement of claim alleges that the deceased was the driver of the vehicle at the relevant time. Paragraph 2 alleges that the vehicle driven by the deceased rolled over at a nominated point north of the commencement of the median strip and that the deceased received injuries causing his death. Paragraph 3 alleges that the deceased's death was caused by the negligence of the defendant which would have entitled the deceased to maintain an action if he had lived. Paragraph 4 alleges that the plaintiff is the widow of the deceased and brings the action on her behalf and on behalf of the children. Paragraph 5 sets out particulars of negligence which are in essence a failure to take the various precautionary measures which would have constituted a proper warning to motorists at night of the existence and position of the median strip. The rest of the statement of claim is irrelevant for the point under discussion. Nowhere is it alleged that the Commonwealth was a highway authority or otherwise responsible for the design and construction of the road. Both parties made reference to the decision of the Federal Court in McDonogh v. The Commonwealth of Australia (1985) Australian Torts Reports p 69,553 but in my view that case is not to the point. The road under consideration in that case was in a remote mountainous area virtually on the border of New South Wales. There was no evidence as to how or when the road came to be constructed and indeed it could have been constructed before the excision of the Federal Capital Territory from the State of New South Wales. In any event, the case was decided upon the alleged negligence of the Commonwealth in maintaining the road. On page 69,556 of the Report, the majority judgment indicates that no firm conclusion was reached as to whether the Commonwealth was in the circumstances to be regarded as a highway authority at common law. The plaintiff's claim was nevertheless considered on the footing that the Commonwealth is only liable for what according to the highway authority cases is misfeasance. In contrast to the remote road under consideration in McDonogh's case, Lathlain Street was situated in an urban area of the National Capital. By s.11 of the National Capital Development Commission Act 1957, it is provided as follows:

"11.(1) The functions of the Commission are to

undertake and carry out the planning, development
and construction of the City of Canberra as the
National Capital of the Commonwealth.
(2) For that purpose, the Commission is
empowered to provide, or arrange for the
provision of, within the Australian Capital
Territory, buildings, roads, bridges, works for
the supply of water or electricity, sewerage or
drainage works and other matters and things for,
or incidental to, that purpose."

17. The frank evidence of Dr Ratcliffe that the median strip was of an unacceptable standard, was given in context of his further contention that the officers of his Department had nothing to do with the design or construction of that median strip. It was his contention that the road works were the responsibility of the National Capital Development Commission and of the agents whom the Commission had engaged for such design, construction and installation.

18. Dr Ratcliffe's evidence, which was unchallenged on this aspect, went to explain how it came about that the southern end of the median strip in Lathlain Street was in the condition in which it was on 4 June 1982. In essence what had happened was simply that no responsible person turned his or her attention to that matter. Lathlain Street had been constructed in two stages. Its construction was undertaken by the National Capital Development Commission who engaged consulting engineers and town planners for the purpose of design of the roadway including, so it would seem, traffic control installations. The proposals for the latter were subject to approval by the Director of Traffic. In the first stage, plans were drawn up by the consulting engineers for the design and construction of Lathlain Street northwards as far as and about ten metres beyond Cohen Street. The proposals of the consultants regarding traffic control installations were approved by the Director of Traffic on 2 April 1976. In the second stage plans for the design and construction of Lathlain Street south of Luxton Street were drawn up by the same consultants and approval of the proposals for traffic control installations was given by the Director of Traffic on 9 September 1981. The significance of the latter plans for the purposes of the present case, however, is that they do not link up with the plans approved on 2 April 1976. The plans approved on 9 September 1981 show a median strip extending some 150 metres south of Luxton Street and Lathlain Street itself is shown as extending beyond a hatched line marked "limit of contract". It is to be concluded, therefore, that there is a gap between this hatched line marking the southern most limit of the design appearing on the plans approved on 9 September 1981 and the northern most limit of the plans approved on 2 April 1976. Dr Ratcliffe said that there was a gap of about two hundred metres, and this would appear to be so in the light of a comparison of the plans just referred to and a scale plan drawn by the Australian Federal Police in evidence as exhibit C. How it came about that the construction of the road surface within this gap of two hundred metres or so was completed, I do not know, nor does Dr Ratcliffe. What does appear relatively clear is that the construction of the median strip simply came to an end at about the point of the hatched line marked "limit of contract" in the plans approved on 9 September 1981. There is no evidence that any thought was given at that stage by anybody as to whether the median strip should be regarded as completed or not.

19. There is clear and uncontradicted evidence that after the work on the road ceased and it was opened for traffic between Cohen Street and Luxton Street and before the injury to the deceased, a number of vehicles collided with the southern end of the median strip, causing observable damage to it. The incidents of collision and near collisions were sufficiently numerous and serious to cause a conscientious member of the police force, Senior Sergeant P.D. Neill, to write to the officer-in-charge at Belconnen Police Station on 29 November 1979 in the following terms:

"Traffic Hazard in Lathlain Street, Belconnen

Recently, the northern end of Lathlain Street,
Belconnen, at its junction with Luxton Street,
was opened to the use of traffic. I have found
that this area presents motorists with a
potentially dangerous intersection and would like
to draw the attention of the area to the Police
representative of the Traffic Co-ordination
Committee.
The part of roadway that extends from the
Belconnen Fire Station in Lathlain Street to
Luxton Street has no street lighting. Opposite
the Fire Station, a concrete traffic island has
been constructed to form the road into a dual
carriageway. There is no warning to road users
that the island exists and motorists unaware of
the stretch of road are suddenly confronted with
the island with little chance of avoiding coming
into contact with it. This is evident by the
amount of tyre skid marks that have appeared on
the concrete since its inception.
I am aware that installation of street lighting
cannot be done "post haste", but feel that even
as a temporary measure, some method of warning
could be introduced in the way of reflectorised
material or paint on the traffic island, possibly
combined with a "Keep Left" sign. An additional
hazard in the street near the island is the
presence of motor vehicles parked outside the
Fire Station. Perhaps some consideration could
also be given to the introduction of "No Parking"
signs in that part of the Street.
Perhaps this report could be forwarded to the
Officer-in-Charge, Traffic, for the attention of
Station Sergeant D. Halmarick, with a view to
having the area examined by the Traffic
Co-ordination Committee, to eliminate the
hazard."

20. This letter was admitted into evidence over objection. It was admitted as evidence not of the opinion of the writer, but of the awareness of the Commonwealth of an allegation of danger created in Lathlain Street by the median strip, a danger which has been proved on the evidence before me. That the letter in fact came to the attention of the Director of Traffic was acknowledged by Dr Ratcliffe in his evidence. The letter was brought to the attention of the Traffic Co-ordination Committee, of which Dr Ratcliffe was a member, on 10 December 1979. It appears that street lighting in the area was subsequently improved by the ACT Electricity Authority acting in consultation with the National Capital Development Commission, but leaving that aside, the only action that was taken was to have the matter listed for investigation within the Department. It may be noted that exhibit E bears an endorsement by the Director of Traffic, dated 9 September 1981 with a notation "replaces original J1660 approved 1979", but no explanation was given by Dr Ratcliffe in his evidence for this endorsement. In any event, nothing seems to turn on it.

21. The evidence leads me to the conclusion that the prime responsibility for the design and construction of the road was assumed by the National Capital Development Commission. The Commission engaged consulting engineers who drew up plans which included the design of traffic control installations. The plans were passed to the Director of Traffic within the Department of the Capital Territory for approval. It was the responsibility of the Director and his officers to ensure that the proposed traffic control installations, including median strips, did not constitute hazards to motorists which might be obviated by the use of reasonable care.

22. In the event of proposals which did not reach an acceptable standard for road safety purposes, it was the duty of the Director and his officers at the least to refuse to approve those proposals. If appropriate, the Director and his officers might have advised what safety measures ought to be taken, but that is not necessary to decide. Whilst it might have been that the submission of the plans to the Director by the National Capital Development Commission in 1979 was not sufficient to put the Director and his officers on notice that the median strip in Lathlain Street would be left in its uncompleted condition, the presentation on 10 December 1979 of Sergeant Neill's letter to the Traffic Co-ordination Committee, of which the Director was a member, put the Commonwealth on notice that the median strip in its then condition presented a hazard to motorists. It was encumbent upon the Commonwealth then, in my view, to at least enquire as to how serious the hazard was and to consider as to what steps, if any, might be taken to eliminate or minimise that hazard. No such steps were taken. Yet immediately after the deceased received his injuries action was taken so that within a month plans had been drawn by the Department of Housing and Construction for a re-designing of the southern most portion of the median strip together with the installation of the safety features to which I have made reference.

23. Although the Commonwealth was not responsible for the construction of the road it may, by the time of the deceased's injuries, have become liable as a highway authority in the sense that it assumed responsibility for the maintenance of Lathlain Street. There is nothing in the National Capital Development Commission Act which casts any responsibility on the Commission to maintain roads within the National Capital. There is no city, municipal or shire government and there is no statutory body charged with the responsibility of maintaining roads in the Territory. Dr Ratcliffe said in his evidence that he was the delegate of the Minister for the purpose of authorising the erection and construction of traffic control devices. Section 8(1) of the Seat of Government (Administration) Ordinance 1930 empowers the Minister by writing to delegate all or any of his powers and functions under regulations made under the Ordinance. Section 109 of the Motor Traffic Ordinance 1936 empowers the Minister to authorise the erection, placing or displaying of traffic signs and road markings. S.110 empowers the Minister to authorise the placing, marking, erection or construction on a public street of traffic islands for the purpose, inter alia, of separating traffic travelling in opposite directions, for the purpose of indicating the route to be followed by traffic or for the purpose of protecting from danger any person using the public street. The case may then be seen to raise the same sort of questions with which the High Court was concerned in The Council of the Shire of Sutherland v. Heyman and Another [1985] HCA 41; (1984-1985) 157 CLR 424. Those questions concern the nature and scope of duty of a public authority to persons who suffer loss as a result of the failure of the authority to take action in accordance with its functions or as a result of the negligent carrying out of its functions. The Commonwealth of Australia is not a statutory authority except in the sense that it was established by a constitution which itself was a statute of the Parliament of the United Kingdom. Nevertheless, I see no reason why the same principles do not apply. The questions that are raised, however, are difficult ones. The authorities were surveyed recently by Beaumont J. in McCauley v. Hamilton Island Enterprises Pty. Ltd. (unreported Federal Court of Australia, 10 June 1987). A duty of care on the part of such an authority may be more readily perceived where the claim in question is for personal injury (as it is here, where it must be considered whether the deceased, had he lived, would have had an action against the Commonwealth) than for economic loss.

In Heyman's case, Gibbs C.J. said at p.445:
"Once it is accepted, as it must be, that the
ordinary principles of the law of negligence
apply to public authorities, it follows that they
are liable for damage caused by a negligent
failure to act when they are under a duty to act,
or for a negligent failure to consider whether to
exercise a power conferred on them with the
intention that it should be exercised if and when
the public interest requires it.
Where a public authority has decided to exercise
a power, and has done so negligently, a person
who has acted in reliance on what the public
authority has done may have no difficulty in
proving that the damage which he has suffered
has been caused by the negligence."
Mason J., as he then was, said at p. 459-460:
"Generally speaking, a public authority which is
under no statutory obligation to exercise a power
comes under no common law duty of care to do so:
see Revesz v. The Commonwealth (1951) 51 SR
(N.S.W.) 63. But an authority may by its conduct
place itself in such a position that it attracts
a duty of care which calls for exercise of the
power. A common illustration is provided by the
cases in which an authority in the exercise of
its functions has created a danger, thereby
subjecting itself to a duty of care for the
safety of others which must be discharged by an
exercise of its statutory powers or by giving a
warning."

24. The remainder of the judgment of Gibbs C.J. and the other judgments in the case indicate, I think, that reliance by the plaintiff on the action or non-action taken by the public authority is not essential either to prove the existence of the duty of care, or of its breach, although reliance will materially assist the plaintiff's case.

25. I am convinced that there was a duty of care towards the deceased cast on the Minister and his delegate, the Director of Traffic, through the provision of the Motor Traffic Ordinance 1936. Furthermore, insofar as there was no action on the part of the Commonwealth in response to the letter of Senior Sergeant Neill and no action until after the injuries to the deceased to take the appropriate steps to cause the median strip in Lathlain Street to be completed to a reasonably acceptable standard (that is, to a standard which minimised the danger to motorists), the Commonwealth failed to discharge that duty.

26. The next question is whether the Commonwealth's failure caused or substantially contributed to the events which brought about the fatal injuries to the deceased. It was submitted on behalf of the defendant that the markings on the road did not permit of a conclusion that any lack of warning of the presence of the median strip contributed to the course of driving adopted by the deceased. I have already indicated that I accept the evidence of Sergeant Brown and Mr. Jamieson that the road markings and other indicia on the roadway establish that there was "a vicious swing" to the right on the part of the deceased when the vehicle was only a metre or so south of the median strip. I accept further their expert opinion that the most likely explanation of that violent swing to the right was an over-correction after having turned suddenly to the left. Of course there are other possible explanations but I do not think that to accept over-correction as the most likely explanation is to indulge in speculation. Furthermore, I think that the reason for the deceased seeking to swerve to the left before the over-correction was the sudden and late realization that his vehicle was about to collide with the southern end of the median strip. Lastly, I am satisfied that the lack of safety features or warning devices to which I have already made reference substantially contributed to the failure of the deceased to become aware of the imminent presence of the median strip before that precise moment. Again I am aware, as counsel for the defendant strenuously argued, that there are other possible explanations. It is possible, of course, that the deceased was attempting to overtake another vehicle. It is even possible that he was swerving in order to avoid a dog. However, in my view, the most likely explanation is as I have stated and I do not think that to accept that explanation is to indulge in speculation.

27. I turn now to contributory negligence on the part of the deceased. It is alleged, amongst other things, that the deceased was driving at an excessive speed. This allegation is supported by the evidence of Mr. Osman, which however I am not prepared to accept on this point. Mr. Osman expressed the view that the deceased was travelling at a speed in excess of eighty kilometres per hour. Whilst he identified a number of factors which he took into account in coming to this conclusion, he did not disclose a process of reasoning whereby any one or more of those factors led to the conclusion. Furthermore, his expertise in the field is not such as to make convincing what is, in my view, no more than an educated guess. The defendant also relied on an allegation of a failure on the part of the deceased to keep a proper lookout and in this regard stressed the knowledge that the deceased had of the conditions in Lathlain Street. Whilst I think in the circumstances there must have been to some degree a failure to keep an effective lookout, I do not think that the defendant should be successful on contributory negligence if this were the only factor. It is impossible to be precise about the degree of knowledge that the deceased had about the road conditions. There is no evidence that he ever travelled on Lathlain Street at night previously. It is impossible to come to any firm conclusion about the speed of the vehicle. Obviously, the faster the speed, the greater the need to keep a proper and effective lookout.

28. It was also alleged that the deceased had failed to wear the seat belt with which the vehicle was equipped and that the deceased would probably have survived the accident if his seat belt had been fastened. However, there is no evidence as to whether the seat belt was in the fastened or unfastened position and indeed no evidence whether it was damaged or undamaged. The issue of whether or not the deceased was wearing a seat belt arose only belatedly in the case. Mr. Osman said that the incidence of seat belts breaking "does not happen very often at all" and that the breaking strain of a seat belt is about two tons. However, on the state of the evidence I am not prepared to conclude either that the said belt broke on the force of the impact and rolling of the vehicle, or that it did not. Further, I am not convinced that it is not consistent with the evidence that the rolling of the vehicle caused the deceased to slide out of the seat belt. The defendant has not discharged the onus of proving that the deceased failed to engage the seat belt properly or at all. Where I think there is substance in the defendant's contentions, however, is with regard to the duty of any motorist to keep as near as practicable to the left of the carriageway. A motorist who, without explanation, fails to keep to the left and collides with an object in the middle or towards the middle of the road is, in my view, guilty of a failure to take reasonable care for his own safety. In the circumstances of the present case, however, the failure of the deceased to keep to the left, even taken in conjunction with the failure to keep an effective lookout, is overwhelmed by the danger which the median strip presented to motorists generally. It is necessary to reduce the damages by a proportion which is just and equitable in the circumstances having regard to the contribution of each party to the events which caused the injuries to the deceased and in that regard I think that the damages ought to be reduced by ten percent for contributory negligence.

29. I turn now to the question of damages.

30. The usual difficulties in a case of this kind have to be faced. On the one hand it has been said many times that complete mathematical accuracy is impossible, but on the other hand, there has to be a mathematical framework in which the calculation of the present financial value of the loss of the support of the deceased can be cast, so that the parties are able to measure the justice or otherwise of what sum is awarded. Nevertheless, full and frank disclosure of all the mathematical processes which go to make up the award leads to the likelihood that some arguable error will be located within the assessment and so an appeal by one party or the other, with the undesirable consequence of delay in final resolution of the case, inevitably follows.

31. The deceased died on 11 June 1982, one week after receiving his injuries. He was born on 17 August 1949. The plaintiff was born on 19 May 1950. The marriage took place on 23 April 1973. The elder child, Amanda Maree, was born on 15 August 1975 and the younger child, Damien Patrick Flynn, was born on 25 September 1977. All members of the family were in good health at the date of death and could be expected to have remained so. The deceased had average educational and vocational skills. He joined the then ACT Police Force on 30 July 1973 and by the date of his death had attained the rank of First Constable in the Australian Federal Police. I am satisfied that he would have advanced to the rank of Senior Constable by 30 July 1983, but on the evidence I am not satisfied that he would have advanced beyond that rank, and indeed it is not submitted on behalf of the plaintiff that the loss beyond that date should be assessed other than on pay rates applicable to a Senior Constable.

32. There were some figures before me relating to household expenditure and the like, but I think that it is appropriate to use the tables taken from the Household Expenditure Survey 1975-1976 set out in table 9.1 on page 412 of Luntz, Assessment of Damages 2nd edition. This table was in effect accepted by counsel for both parties as providing a suitable basis for assessing the value of the dependency of the plaintiff and the two children on the earnings of the deceased, but naturally there was some emphasis as to how it should be applied in the individual case. The table is as follows:

Table 9.1
Percentage of dependency
of wife and children

Composition of Household Range
Adults Children
-----------------------------------------------------------
2 Nil 62% to 68%
2 1 68% to 72%
2 2 74% to 77%
2 3 or more 76% to 78%
------------------------------------------------------------

33. This was a case in which I received helpful written submissions from counsel for both parties. In his written submissions counsel for the defendant advanced the argument that the usefulness of the table referred to is greatly reduced when there is a family income contributed to by a partially dependent wife as well as the deceased. The argument is as follows:

"For example, if the deceased and the plaintiff
had been earning $20,000 p.a. each, the overall
family income would have been $40,000 and 75% of
that total income would have been $30,000,
leaving $10,000 upon which the deceased would
have spent on himself. Upon his death, the wife
would, of course, have retained her income of
$20,000 p.a. and the net loss to the family would
have been $10,000 p.a. On the other hand, had
the deceased been earning $20,000 p.a. while the
wife was unemployed then 75% of the total family
income would have been $15,000 and the deceased
would have spent only $5,000 on himself. In
these circumstances the net loss to the family
would have been $15,000."

34. In my view this is a valid argument and I propose to apply it to the evidence in this case.

35. In addition to his work as a member of the Australian Federal Police, the deceased operated a small part-time business in the nature of a fence painting contractor. The profits or losses were not disclosed by him in his income tax return. There was not necessarily any great advantage to him in adopting this course because it seems that the business did not always make a profit. The profits and losses were disclosed in the income tax return of the wife. In the financial year ended 30 June 1982 the business made a profit of $5,651, but in the previous financial year it had made a loss of $2,489. The business had apparently been operating for some seven to eight years and the profit in the tax year 1982 was a record high. I am satisfied that whatever position the parties took with regard to taxation, the business was operated as a sort of partnership to which both the deceased and the plaintiff contributed their efforts, and that the income was available to be shared in the ordinary way by the members of the family. I think it appropriate to divide the average profit for the tax years 1981 and 1982 equally between the plaintiff and the deceased and this results in a net income after tax of about $1,000 per year or $20 per week.

36. At the date of death the plaintiff was earning wages as a clerk with the ACT Electricity Authority, working on a part-time basis. She has increased the number of hours she has worked each week since the date of death, but I am not satisfied that she would not have increased those hours much in the same way even if the death had not occurred.

37. From the date of death to 31 July 1983, when the deceased might have expected to become a Senior Constable, I assess the value of the loss of dependency on the following basis:

Deceased's salary, net per annum $13,520
Deceased's earning from business $ 1,000
Plaintiff's wages $ 6,643
Plaintiff's earnings from business $ 1,000
-------
Total disposible family income $22,163
-------

38. It is appropriate to assign the dependency of the plaintiff and the two children to seventy-five percent of this total family income, that is to say, $16,622, which would have been the loss to those dependants if the plaintiff had not continued to earn income after the death of the deceased. In fact the plaintiff continued to earn wages as before. However, I do not think that the income of the plaintiff after the death to be taken into account should include the earnings from the business which came to an end by reason of the deceased's death. Allowing then for the continued receipt of $6,643 per annum by the plaintiff, the net loss to the dependants is just over $10,000 per annum and I propose to use that as the basis for this anticipated period of loss. The loss so calculated is $11,000. There is no need for discounting.

39. The next period to take into account is from 1 August 1983 to the present time. Assuming, in the absence of evidence to the contrary, that the net earnings of the deceased as at the commencement of the period would have been $13,529 per annum or about $260 per week and that this would have increased to $426 per week, which is proved to be the present rate applicable to a Senior Constable, the best I can do in the circumstances is to strike an average figure of $343 per week as the likely net earnings of the deceased during this period. To this is to be added the expected income from the business of $20 per week for the deceased, about $130 per week wages for the plaintiff and $20 per week from the business for the plaintiff. This is a total family income of $513 per week. Seventy-five percent of that is $385 per week from which is to be deducted the $130 per week which the plaintiff would have earned and did earn from her own efforts, leaving a net value of the dependency of $255 per week. Over 223 weeks the loss is about $57,000. No discount is appropriate.

40. As far as the future is concerned, the situation is even more difficult to assess. It is to be observed that the child Amanda will turn 18 years of age on 15 August 1993 and that the child Damien will attain that age on 25 September 1995, after which neither of them could be expected on the probabilities to be dependent on the deceased. I have attempted by two alternative routes to arrive at a figure which would represent the present loss of value to the three dependents until 17 August 2009, when the deceased would have attained the age of 60 and would have been retired from the Australian Federal Police. The first method involves trying to ascertain the present value for each of the three periods, the first from now until 15 August 1993, the second from then until 25 September 1995 and the third from then until 17 August 2009. In using this method I would attribute seventy-five percent of family income to the dependency of the dependents during the first period (for wife and two children) and seventy percent during the second period (for wife and one child) and sixty percent during the third period (wife only). I would also take into account the likelihood that the proportion of the plaintiff's contribution to the joint income of herself and her husband would have declined during the third period. The difficulty of using this method is that each of the two later periods commence at a time years in the future, and I have no actuarial material before me to ascertain the present value of a periodic loss which will not commence until a time in the future. However, with a little informed guesswork, I have been able to compare the end figure of using this method with the end figure arrived at by the use of the second method.

41. This second method is simply to strike an average of what the deceased and the plaintiff were likely to contribute to the family income, based on present figures, on the whole of the total period commencing from now and ending on 17 August 2009. I calculate that the value of the dependency in the early years would have been $274 and in the later years and more about $215 per week. I would average this figure at $235 per week. On the three percent discount tables this would yield a present value of between $190,000 and $200,000. This has to be discounted for the possibility of remarriage and without saying more on that subject I would reduce the figure for the future by a little less than fifteen percent and award a net sum of $170,000 for the future. The sum so arrived at is not greatly different from that reached by using the first method of approach and I think it represents a fair sum for future loss. No further discounting is appropriate.

42. The loss of dependency is therefore to be valued as follows:

From the date of death to 31 July 1983 $ 11,000.00
From 1 August 1983 to the present $ 57,000.00
Future loss $170,000.00
-----------
Total $238,000.00
-----------

43. That appears to be an appropriate overall award for loss of dependency in the circumstances of the case. Funeral expenses are agreed at $1,300 and are to be added. The damages are to be reduced by ten percent for contributory negligence of the deceased and this results in a figure of $215,370.00. Interest is awarded on the reduced value of past loss ($61,200) and will be awarded at the rate of fourteen percent per annum and the result reduced by half, making $23,219.00. This will be added to the damages, and the plaintiff is to have judgement for $238,589.00.

44. Of the total judgment sum the defendant is to pay into court $49,500 from which is to be paid out to the Public Trustee the sum of $22,500 to be dealt with by him on behalf of the child Amanda Maree Flynn and the sum of $27,000 to be dealt with by him on behalf of the child Damien Patrick Flynn.

45. Unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs.