DLA Phillips Fox acts for North Sydney Council in this matter.

Facts

At approximately 1am on 20 July 1995, Simon Binks, on his way home from a night at a pub in Paddington, Sydney, crashed his vehicle at an intersection at Milsons Point, adjacent to the Sydney Harbour Bridge.

Mr Binks suffered head trauma and could not recall the accident. There were no eyewitnesses. A roundabout, under construction at the intersection, was covered with reflective mesh and lit with overhead lights and flashing warning lights. The roundabout and works were visible at least 100 metres away. The only objective evidence as to the cause of the accident was skid marks which indicated that, at a point 20 metres from the intersection, Mr Binks was still travelling at between 60 and 77 kph. A blood sample taken at hospital revealed Mr Binks had a blood alcohol concentration of 0.133.

Trial

Before Justice Hoeben in the Supreme Court, Mr Binks argued the likely cause of his accident was the confusing layout of the works and inadequate signage. He argued that it seemed the way through the works, was to cross to the wrong side of the road and it was more likely than not that during this manoeuvre Mr Binks lost control.

However, no-one could explain why Mr Binks was going so fast so close to the works. His own traffic accident expert conceded in cross-examination that, at the speed he was going, Mr Binks could not have negotiated the roundabout without losing control.

In relation to damages, Mr Binks, formerly the lead guitarist with the 1980's band 'Australian Crawl', argued the head injury he sustained had robbed him of the ability to resurrect his music career.

Justice Hoeben found in favour of Mr Binks, saying Council's duty of care extended to drunken motorists not being careful. He found Council breached its duty of care in that the signage was inadequate and caused confusion. Justice Hoeben said the accident was most likely caused by that confusion. He reduced Mr Binks' damages by 65% for contributory negligence. After this deduction Mr Binks was awarded $330,000.

Appeal

Council appealed to the NSW Court of Appeal, arguing it was simply far fetched to suggest that additional signage to that which was in place would have prevented the accident. (There were a number of 'works ahead' and 'roundabout' signs.) Council argued the likely cause of the accident was a combination of speed, alcohol and inattention.

In a split decision the Court of Appeal upheld the trial judge's verdict. Justice Santow for the majority held that once a plaintiff demonstrates a breach of duty closely followed by damage, a prima facie case is made out. It is then up to the defendant to establish a theory of causation which does not involve its negligence. Justice Santow held that while the Council could point to speed and alcohol, he was not persuaded that those factors were the more likely cause of the accident.

In a detailed dissent, Justice Basten said Mr Binks must fail. The missing evidential link was why, when he was intending to turn left, had he swerved to the right at considerable speed only moments from the intersection. In Justice Basten's view this act could not reasonably be related back to any defect in signage or any confusion as to the layout of the roundabout, and it was mere speculation to hypothesise otherwise.

What's Next?

Council has filed an Application for Special Leave to Appeal to the High Court, which will be heard in early 2008. Council and its lawyers believe important issues of principle have arisen in this case, as follows:

  • Does the law of Australia recognise a principal whereby an evidentiary onus is placed on a defendant once a breach of duty has been established, closely followed by damage?
  • If that is so, is it just to impose liability on a defendant in circumstances where the more likely cause of the accident is inconsistent with negligence by that defendant?

Watch this space.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.