Warren v Gittoes [2009] NSWCA 24 (27 February 2009)

Last Updated: 4 March 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Warren v Gittoes [2009] NSWCA 24


FILE NUMBER(S):
40762/07

HEARING DATE(S):
12 February 2009

JUDGMENT DATE:
27 February 2009

PARTIES:
Wayne Frederick Warren
Robert James Gittoes
Mary May Gittoes

JUDGMENT OF:
Hodgson JA Tobias JA Macfarlan JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 4/05 (Orange)

LOWER COURT JUDICIAL OFFICER:
Truss DCJ

LOWER COURT DATE OF DECISION:
17 July 2007


COUNSEL:
A: H N Kelly SC / T McKenzie
R: A Black

SOLICITORS:
A: Graham Jones Lawyers, Sydney
R: Garden & Montgomerie Solicitors, Cowra

CATCHWORDS:
TORTS – negligence – essentials of action for negligence – damage – causation –appellant’s injury due to collision with fence – respondents failed to erect sign warning of fence – whether respondents’ breach of duty caused injury in circumstances where appellant saw the fence before he would have had an appropriate sign been erected
EVIDENCE – interpretation of photographs

LEGISLATION CITED:
N/A

CATEGORY:
Principal judgment

CASES CITED:
Angel v Hawkesbury City Council [2008] NSWCA 130
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Blacktown City Council v Hocking [2008] NSWCA 144
Flounders v Millar [2007] NSWCA 238
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380

TEXTS CITED:


DECISION:
Appeal dismissed with costs



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40762/07

DC 4/05

HODGSON JA

TOBIAS JA

MACFARLAN JA

Friday 27 February 2009

WAYNE FREDERICK WARREN v ROBERT JAMES GITTOES & ANOR

Judgment

1 HODGSON JA: I agree with the orders proposed by Tobias JA and, subject to what I say below, I agree substantially with his reasons.

2 As regards the use that can be made of photographs, I agree with what Tobias JA said at [170] of his judgment in Blacktown City Council v Hocking [2008] NSWCA 144:

“Thus in United States Shipping Board v The Ship St Albans [1931] AC 632 Lord Merrivale, in delivering the advice of the Judicial Committee of the Privy Council, observed (at 642) that the use of photographic evidence must be the subject of “careful delineation” particularly as a means of proof of matters of fact. This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.”

3 In my opinion, there may be cases where photographs can be used to establish at least approximate distances, even in the absence of other admissible evidence; although of course this must be done with great care, particularly in view of the greatly different impressions that can be given by different focal lengths of lenses being used. However if, for example, a question arises as to the distance between (say) a post known to be one metre high and an object that is in a line approximately at right angles to the line from the camera to the post, then in my opinion a photograph may on its own support a finding as to that distance.

4 In the present case, the question concerns a distance along the line from the camera towards photographed objects, and the problem arising from different impressions from different focal lengths is present. I agree with Tobias JA that the photographs could not justify a finding, in favour of the appellant, that the skid marks commenced closer to the plum tree than the 50 metres estimated by the appellant.

5 I also accept that on no reasonable view could the photographs be taken as suggesting that the skid marks commenced closer to the plum tree than about 30 metres; so that even if that distance were accepted, the appellant still would not have proved that he would have become aware of the fence and the need to stop any earlier than he did, if the respondents had complied with their duty of care.

6 Accordingly, this is a case where the generally necessary, but not sufficient, “but for” test of causation was not satisfied.

7 TOBIAS JA: On 8 May 2004 the appellant was riding his motorcycle along an unsealed track (the track), which formed part of an unmade Crown public road. At some point he became aware that a fence had been constructed across the track (the fence), which required him to take evasive action to avoid colliding with it. As a consequence of that action he fell from his motorcycle and sustained injuries.

8 The fence had been erected by the respondents pursuant to the conditions of a licence granted to them by the Department of Lands in 2003. The licensed area adjoined the southern boundary of a property owned by them known as “Eden” for a length of 282 metres. A gate was erected in the fence but it did not coincide with the track.

9 The appellant instituted proceedings in the District Court claiming damages, alleging that the respondents were negligent in that they had created a risk of danger by erecting the fence across the track without adequately warning those approaching the fence when using the track of its existence.

10 The respondents admitted that they owed the appellant a duty of care but disputed that they were in breach of that duty. They further disputed that if there was any breach, that that breach caused the appellant’s injuries.

11 The proceedings were heard by Truss DCJ who, on 17 July 2007, found that the respondents were in breach of their duty of care to the appellant by failing to take adequate precautions to bring the existence of the fence to the notice of persons using the track who, like the appellant, were unfamiliar with its presence. However, her Honour also found that the appellant had failed to establish that the respondents’ failure to warn of the presence of the fence was causative of his injuries. She accordingly dismissed the proceedings although she proceeded to assess damages, in case she was in error on the issue of liability, in the sum of $252,380.

12 The appellant appeals to this Court from her Honour’s decision with respect to the issue of causation. The respondents have a filed a Notice of Contention alleging that her Honour erred in finding that they were in breach of their duty of care.

The primary judge’s findings of fact

13 The primary judge found (at [6]) that the evidence relevantly established the following:

(a) The Crown public road was 20 metres wide and ran roughly in an east-west direction extending from Porters Mount Road at its eastern end to Camp Road at its western end. It had a total length of 857 metres.

(b) The respondents’ property, Eden, had a frontage to Porters Mount Road and a common boundary with the Crown road for a distance of 282 metres from Porters Mount Road.

(c) The track comprised a surface of clay, was unformed and was approximately the width of a motor vehicle.

(d) As the track extended to the east from Camp Road, it veered slightly to the left around the large gum tree which was located about 144 metres from the fence. After rounding the gum tree the track again veered to the right around a plum tree located on its northern side and which was approximately 31 metres from the fence.

The evidence, which established the above facts, was generally photographic apart from the two distances referred to in (d) above which were measured by the first respondent.

14 After the respondents had been granted their licence, they placed one fence at the Porters Mount Road or eastern end of the licensed area, and the fence the subject of the proceedings at the western end of the licensed area. That fence was a star picket fence with two rows of barbed wire along its top, three wooden strainer posts and what was referred to as a “Queensland hitch” gate towards the northern end of the fence, which, as I have noted, did not coincide, with the location of the track.

15 Shortly after the grant of the licence the respondents placed a sandwich board sign approximately 40 metres to the west of the fence, being approximately 10 metres west of the plum tree. The sign depicted in large letters “SHEEP FENCE AHEAD”, followed by the word “DANGER” in red letters. However, for reasons not presently relevant, the respondents had removed the sign at the time of the appellant’s accident.

16 As a consequence of advice from a council inspector, in March 2004 the first respondent obtained six reflectors from the council depot, three of which he affixed to the outside of each fence so that there were three pointing east and three pointing west. He also attached pieces of white cloth to the fence in an attempt to mark its location.

17 The appellant’s evidence was that he entered the track from the Camp Road end and that after approximately 200 metres he increased his speed to between 60 and 70 kph, which he maintained for the next 300 metres, riding on the left hand side of the track.

18 Her Honour stated what she described as the critical portion of his evidence in the following terms (at [23]):

“a) he veered to his right as he rounded the gum tree and the plum tree was ahead and to his left, about 50 metres away;

b) at this point he saw across the road the fence which he had never seen previously and said that he did not see any white strips or reflectors;

c) initially he said that when he first saw the fence he was about 100 metres from it but he later said he was 70 to 80 metres away;

d) he thought about how he would stop before the fence and this took one to three seconds;

e) in the heat of the moment he decided that laying the bike down was preferable to remaining upright and colliding with the fence;

f) he attempted to lay the bike over to its right side by applying the rear brake and turning the bike in the opposite direction to that which he was leaning;

g) he came off the bike landing on the ground past the plum tree with the bike ahead of him on the track;

h) according to his son, who retrieved the bike later the same day, it was off to the right of the track and about 25 metres from the fence.”

The primary judge’s findings with respect to breach of the respondents’ duty of care

19 As I have indicated, the respondents did not dispute that as they had the care, control and management of the area of the track in respect of which they held the licence, they owed a duty of care to persons using the track, such as the appellant, to take reasonable care for their safety.

20 At [29] her Honour noted that it was the appellant’s case that the risk of injury from the construction of the fence was not insignificant and that the failure to erect a warning sign at an appropriate distance from the fence was an unreasonable response to a risk known to the respondents.

21 The primary judge found (at [32]) that the appellant was unaware of the existence of the fence prior to the date of the accident. Having regard to the photographic evidence, she accepted (at [35]) that the fence was not easy to identify against its rural background. She was satisfied that on the day of the accident the only warnings provided by the respondents with respect to the existence of the fence to those utilising the track from the west were the three reflectors and a number of white strips which had been attached to the fence.

22 In the foregoing circumstances her Honour concluded (at [41]) as follows:

“Having regard to the totality of the evidence, despite the [respondents’] awareness of the risk of injury and the steps they took, I have come to the conclusion that the precautions they took were inadequate to bring the existence of the fence to [the notice of] persons using the laneway who were unfamiliar with its presence such as the [appellant]. For this reason I find that the [respondents] were in breach of the duty of care they owed to him. ...”

The appellant’s evidence with respect to when he first saw the fence

23 A number of factual issues arose under this head. The first related to the distance from the fence at which the appellant first became aware of its existence. The second related to his reaction time in taking action to avoid colliding with the fence. The third related to the distance from the fence at which the respondents ought to have erected a warning sign in response to the risk, which, they acknowledged, was created by the erection of the fence.

24 With respect to the first issue, the appellant’s evidence, according to the primary judge (at [43]), was that he first saw the fence after he had rounded the gum tree (which was established to be 144 metres from the fence) and was either 70 to 80 metres or 100 metres from it. The evidence on the second issue was that the appellant estimated his reaction time from first seeing the fence as between 1 and 3 seconds. The third issue was determined by her Honour upon the basis of the evidence of the respondents’ expert, Mr Joy, as requiring the appropriate sign to be placed 50 metres from the fence, which meant that it would be visible at a distance of about 75 metres from the fence.

25 In his evidence in chief, the appellant estimated that when he arrived at the gum tree he was travelling at 60 to 70 kph and was approximately 100 metres from the fence. After he rounded the gum tree he saw the plum tree ahead of him on the left hand side of the track. He observed the fence when was approximately 50 metres from the plum tree. He said:

“I observed what I believed to be steel posts and a mesh wire across the roadway.”

26 It was never suggested to him that he was unaware that the fence was across the track itself: his evidence to which I have just referred establishes the contrary.

27 When asked how far away the fence was from him when he first saw it, he responded “70 to 80 metres”. When asked how long he had had the fence under observation before he laid the bike down, he responded “one to two seconds, or one to three seconds”.

28 In cross-examination the following exchange took place:

“Q. Yesterday in your evidence you said – we don’t have a transcript, we all only have our notes – but you said you rounded the gum tree, you observed what appeared to be a fence and you indicated to us that you were 100 metres from the fence at that point. Do you recall that?

A. Yes.

Q. At the time that you first saw the fence you were 100 metres from it. Is that correct?

A. Approximately yes.

Q. If you were going at 60 kilometres per hour you know that on the conditions that were then present in the laneway, that is it was dry, that you could bring your bike to a halt, certainly within 100 metres couldn’t you?

A. Yes.”

29 The evidence established that on 14 May 2004, six days after the accident, the appellant’s wife took a number of photographs of the scene each of which was taken looking east. The two reproduced at Blue 2/385 depicted the plum tree with its shadow across the track and the two reproduced at Blue 2/386 indicated the shadow of the plum tree although the tree itself is not visible in the photograph.

30 The evidence established that the writing beside each of the photographs reproduced at Blue 2/386, including the two red dots on the lower photograph, was that of the appellant. It purported to depict the beginning and end of a skid mark generated, apparently, by the appellant’s application of the rear brake of his motorcycle.

31 When shown the two photographs reproduced at Blue 2/385, the appellant in his evidence in chief said that the top photograph was looking east from Camp Road

“which looks like it may be about 50 metres back from the small plum tree to the left hand side of the road.”

As to the bottom photograph, he said that it was a similar view looking east from Camp Road that

“looks like approximately 20 metres back from the small plum tree and the fence line is visible crossing the road in the background.”

32 In cross-examination he was referred to the two photographs reproduced at Blue 2/386 and acknowledged that the writing to the side of the photographs and the placing of two red dots on the bottom photograph had been effected by him. The following question and answer then occurred:

“Q. It’s plain from the top photograph that that skid mark commences back somewhere between 50 and 75 metres before the plum tree isn’t it?

A. I can’t say how far it commenced back, sorry.”

33 The appellant was then asked to look at the photographs reproduced at Blue 2/385 to which the following exchange related:

“Q. You told us yesterday when you looked at those two photographs that the top one was a view of the plum tree taken from a distance of 50 metres and the bottom one was a view of the plum tree taken from a distance of 20 metres?

A. Yeah that’s my estimates yes.

Q. Well you weren’t having any trouble estimating that distance yesterday?

A. Yeah well they’re not very clear from the plum tree side.

Q. But yes they are. You can see the shadow from the plum tree on the roadway?

A. Yes.

Q. On page 2?

A. Yes.

Q. And the skid mark commences back some 30 to 70 metres from the shadow of the plum tree doesn’t it?

A. Yes.”

34 The cross-examination then continued in the following terms:

“Q. You placed those markings beside those two photographs because you either believed or wished to suggest that that was a mark from your motorcycle didn’t you?

A. I believe they could’ve been caused by the motorcycle.

Q. Presumably, because there are no other markings on those two photographs, there were no other visible skid signs?

A. No.

Q. If they were marks made by your motorcycle that indicates whatever the reaction time was that braking had already been applied to the motorcycle when it was still 50 to 70 metres back from the plum tree. Is that correct?

A. Yes, but whose ever motorcycle it was.

Q. When you put those marks on you thought it was yours didn’t you?

Q. Well, I thought they could’ve been attributed to the cycle I was on.

Q. You say that it would be completely incorrect to suggest that you first saw the fence when you were only 50, 55 metres away from it?

A. Yes.

Q. Have you ever suggested that?

A. Sorry?

Q. Have you ever suggested that?

A. No.”

35 If the appellant’s evidence be accepted, and noting that there was no dispute that the plum tree was located 31 metres from the fence, then it followed that the skid mark of the appellant’s motorcycle commenced some 80 to 100 metres from the fence. When one then factors in a reaction time of say, 30 metres, then on the appellant’s own evidence he first saw the fence from over 100 metres away.

The primary judge’s findings on the issue of causation

36 At [45] of her judgment, her Honour stated that using a reaction time of 1.5 seconds, the evidence established that the appellant would have travelled the following distances after first seeing the fence before taking evasive action:

o 25m at 60 kph

o 29m at 70 kph.

It will be recollected that the appellant’s estimate of his reaction time was between 1 to 3 seconds.

37 At [48] her Honour noted that it was the appellant’s case that the fence was difficult to see and that all the respondents needed to do to avoid the accident was to have placed a sign about 150 metres from the fence in the vicinity of the gum tree, which was measured by the first respondent as being about 144 metres from the fence.

38 Her Honour then noted that the appellant’s evidence was that when he had rounded the gum tree he was either 70 to 80 metres or 100 metres from the fence when he first saw it.

39 She then continued:

“49. Mr Joy’s evidence was that the fence was visible from a distance of about 125 metres. It was his evidence that the appropriate place for placement of any sign was 50 metres from the fence which would mean that the sign was visible from about 75 metres from the fence. However, on the [appellant’s] own evidence he had already seen the fence at that point.

50. Whilst I accept that the fence could not be considered to be obvious against the background despite the strips and reflectors and that a sign such as the [respondents] had used would have served to make the presence of the fence more obvious, given Mr Joy’s evidence which I accept, I do not consider that the accident would have been avoided had there been such a sign.” (Emphasis added)

40 The appellant tendered an expert’s report by a Mr Northey. He was not cross-examined but it was common ground that he had not been to the site of the accident as had Mr Joy. Nevertheless, based on his evidence the appellant submitted to her Honour that his reaction time was compromised by the hazard constituted by the fence so that (at [58])

“● if he saw the fence at 100 metres

● allowing a reaction time of 3 seconds he travelled 58 metres (at 70 kph)

● thus he was only 42 meters from the fence before he took evasive action

● on Mr Northey’s evidence this was too short a distance to avoid colliding with the fence.”

41 At [59] her Honour observed that there were several problems with that submission, namely,

“● the [appellant] estimated his reaction time to be 1 to 3 seconds. Having regard to his evidence and to Mr Joy’s observations about motorcycle riders, which I prefer, I consider that a reaction time of 1.5 to 2 seconds would be more appropriate.

● on the [appellant’s] own evidence the skid marks commenced about 50 metres from the fence.

...”

[it was accepted that the reference to 50 metres from the fence was an error and it should have been 81 metres given her Honour’s reference to the appellant’s evidence at [51] of the judgment where she noted that the appellant had agreed in cross-examination that the skid marks commenced 50 metres from the plum tree which was 31 metres from the fence, a total of 81 metres.]

42 Her Honour then concluded (at [60]) that she was not persuaded that the respondents’ actions in failing to give proper warning of the presence of the fence were causative of the appellant’s injuries.

The appellant’s submissions on the appeal

43 The appellant submitted that her Honour had made no specific finding as to the distance the appellant was from the fence when he first saw it. True it is that she had noted his evidence that he first saw the fence after he had rounded the gum tree and that he was either 70 to 80 metres or 100 metres from it. However, it was submitted that this was only the appellant’s estimate and there was nothing in her Honour’s findings to indicate that she accepted that evidence.

44 With respect, I disagree. It is patently clear that her Honour accepted the appellant’s estimate, corroborated, as it clearly was, by his acknowledgment that the skid marks to be seen in the photographs reproduced at Blue 2/386 were those of his motorcycle and that they commenced some 50 metres from the plum tree and, therefore, some 81 metres from the fence.

45 It was next submitted that applying the test of causation articulated by Mason CJ in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at [19] and the observations of Ipp JA with whom Handley AJA and Hoeben J agreed, in Flounders v Millar [2007] NSWCA 238, her Honour had erred insofar as she had regarded the appellant’s conduct, constituted by the manner in which he sought to avoid colliding with the fence as somehow providing an intervening cause when it was clear on the evidence that whatever the appellant was doing was in response to the serious risk presented by the respondents’ breach of duty of care in failing to warn of the presence of the fence.

46 In oral argument, the appellant elaborated upon these submissions by asserting that, on the evidence, there was no break in the chain of causation. In other words, the decision of the appellant to lay the bike down rather than remaining upright and attempting to stop before reaching the fence did not break the chain of causation between the failure of the respondents to erect an appropriate warning sign (at a distance from the fence which would have enabled a person in the appellant’s position and travelling at the speed he was, to safely stop before reaching the fence) and the appellant’s injuries.

47 The difficulty with this submission, as was pointed out in argument, was that the basis of her Honour’s conclusion that the respondents’ breach of duty was not causative of the appellant’s injuries, was her findings first, that the respondents’ duty to provide an adequate warning would have been satisfied, based upon Mr Joy’s evidence which she accepted, with the erection of a sign some 50 metres from the fence which would be visible 75 metres from the fence; and second that on the appellant’s own evidence, he became aware of the existence of the fence when he was some 80 metres from it so that the existence of such a sign would not have warned him of anything that he was not already aware of.

48 These findings and her Honour’s conclusion at [50] of her judgment that she did not consider that the accident would have been avoided had there been a warning sign at the location identified by Mr Joy, is supported by the well-known statement of principle by Gaudron J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at [14] where her Honour said:

”...[G]enerally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.”

49 In Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 at [31] Gaudron J stated the principle in similar terms:

”...[T]he trier of fact ... is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damages in question in any event.”

50 Both of these statements were cited by Ipp JA in Flounders at [5] and [7] respectively but must be read subject to his Honour’s conclusion that the onus of establishing that the plaintiff’s injuries occurred because of the defendant’s negligent conduct remains throughout on the plaintiff.

51 As Mason P observed in TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380 at [59], in a passage approved by Ipp JA in Flounders at [22],

”[a] defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the Court is ultimately satisfied on the balance of probability that the defendant’s breach caused or materially contributed to the harm actually suffered.”

52 Accordingly, to succeed on the appeal the appellant had to establish that a proper sign would have brought the existence of the fence to his notice at a point in time earlier than when he said that he first became aware of its presence. It was apparent on the appellant’s own evidence that any attempt to establish that proposition was doomed to fail.

53 The appellant sought to counter the conundrum he was in by submitting that her Honour should not have accepted the appellant’s estimates of distance. Rather, there was objective evidence in the form of the photographs and, in particular, those reproduced at Blue 2/385 and 386 from which her Honour herself could and should have estimated the distance between the commencement of the skid marks and the shadow of the plum tree and which, had she done so, would have been significantly less than 50 metres, let alone 70 metres – which was the evidence of the appellant (see [34] above).

54 However, as was pointed out in the joint judgment of myself and Beazley JA in Angel v Hawkesbury City Council [2008] NSWCA 130 at [69], the perspective depicted in photographs such as those relied upon by the appellant in the present case can be quite skewed and distances very difficult to assess. In Angel at [70]–[72] Beazley JA and myself made reference to the deceptive nature of photographs in a passage agreed to by Spigelman CJ, Giles and Campbell JJA.

55 I made similar observations in Blacktown City Council v Hocking [2008] NSWCA 144 at [167]–[170]. In essence, where the issue is one of distance between objects, photographs such as those relied upon by the appellant in the present case should not on their own be used by a judge for the purpose of assessing that distance. These views were consistent with those of the Chief Justice in the same case at [8]–[12].

56 Although it is true that photographs may be legitimately used for a number of different purposes, in a case such as the present the authorities establish that a judge is not competent to assess distances solely by utilising photographs unless there is some other admissible evidence to support that assessment. In the present case there is no such evidence except that of the appellant himself. There is nothing depicted in the photographs relied upon by the appellant which, in my view, required her Honour to discount the evidence of the appellant as to how far he was from the fence when he first became aware of its existence.

57 Furthermore, the evidence was that the appellant returned to the site some time after the accident. At neither that time nor before giving evidence did he apparently consider it necessary to measure the distance between the fence and the point at which he first became aware of its existence.

58 As the onus was at all times upon the appellant to establish causation, on the basis of his own evidence he clearly failed to do so. Her Honour was perfectly entitled to accept that evidence in the absence of any other reliable objective evidence which was capable of calling the appellant’s estimates of distance into question.

59 I have already referred (at [36] above) to the findings of the primary judge at [45] of her judgment as to the distance travelled, assuming a reaction time of 1.5 seconds. The appellant submitted that one could extrapolate her Honour’s figures using a reaction time of two seconds which would result in a distance travelled of 33.3 metres if the appellant was travelling at 60 kph and 38.6 metres if he was travelling at 70 kph.

60 During the course of argument it was suggested that, at best, if one was to assess the commencement of the skid mark on the photographs reproduced at Blue 2/386 at 30 metres rather than 50 metres from the plum tree, then one would need to add to that a reaction time of, say, 35 metres with the result that, given that the plum tree was 31 metres from the fence, the appellant would have first become aware of the existence of the fence when he was some 96 metres from it.

61 Given the primary judge’s finding at [49] based on Mr Joy’s evidence that the fence was visible from a distance of 125 metres and that the respondents’ duty of care would have been satisfied by the placement of a sign 50 metres from the fence which would be visible from about 75 metres from the fence, even accounting for the reaction time and skid mark distance which the appellant acknowledged, it still followed that the appellant had become aware of the fence some 21 metres before he would have otherwise done so as a consequence of seeing a warning sign.

62 Finally, the appellant referred the Court to Mr Joy’s evidence where the following exchange occurred:

“Q. Can I put to you this from Mr Northey’s report. ‘A reasonable expectation of a crash avoidance braking distance on a sealed surface at 60 kilometres per hour would be 23.2 to 26.4 metres.’ Would you agree with that?

A. Braking distance only yes.

Q. However on an unsealed surface braking requirements can range from equivalent to double these distances?

A. They can be of the order of double is my response.

HER HONOUR

Q. Sorry, can be?

A. They can be the order of double.”

63 On the basis of the foregoing evidence and in the conditions that the appellant faced, it was submitted that the braking distance would be between 46 and 53 metres. To that one would have to add, say, 35 metres of reaction time, which would have placed the appellant between 81 and 88 metres from the fence when he first became aware of it. As Mr Joy considered that 75 metres was a sufficient distance at which users of the track should have been notified of the fence’s presence, the braking time relied upon by the appellant does not assist him.

64 In any case, in re-examination the following exchange took place:

“Q. You were asked about Mr Northey’s suggestion that on an unsealed surface breaking requirements could range from equivalent to a sealed surface to double the distance?

A. Yes.

Q. Having regard to your inspection of the surface of the wheel tracks on the unnamed lane in question, do you accept that a realistic braking distance on that surface at 60 kilometres an hour would be of the order of 30 metres?

A. Thirty, maybe 35.”

65 On the basis of the appellant’s own evidence as to braking distance, and assuming a reaction distance of 35 metres (which accounts for the two second reaction time contended for by the appellant), the appellant would have been able to avoid colliding with the fence when he was approximately 70 metres from it. Yet on his own evidence he first became aware of the fence at a distance from it of at least 70 metres. This results in the same outcome on the issue of causation as determined by the primary judge.

Conclusion

66 In my opinion, the challenge by the appellant to the primary judge’s finding on causation fails. In these circumstances, it is unnecessary to consider the respondents’ Notice of Contention. It follows that the appeal should be dismissed with costs.

67 MACFARLAN JA: I agree with Tobias JA.

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LAST UPDATED:
3 March 2009