Allianz Australia Insurance Limited v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales  NSWCA 328>
The NSW Court of Appeal has found that placing a 'Water Over Road' sign some 900 metres from the water hazard was not an unreasonable act by the Roads and Traffic Authority of NSW (RTA), an authority with special statutory power to erect warning signs, nor could it be said to have been the cause of a motor vehicle accident which killed two men and seriously injured another two.
Mark Kelly was driving along the Riverina Highway, a highway under the control of the RTA, when his vehicle lost traction on a stream of water over the road and collided with a truck approaching from the opposite direction. Mr Kelly and one of his passengers were killed, and another of Mr Kelly's passengers and the driver of the truck were seriously injured.
Prior to the accident the RTA had placed 'Water Over Road' warning signs in the vicinity. The sign in the direction from which Mr Kelly approached was placed around 900 metres from the water hazard. It was accepted that the placing of the hazard signs was undertaken in exercise of a special statutory power.
At first instance
At first instance a number of parties claimed and cross-claimed against the RTA on the basis it had, by placing a warning sign some 900 metres away from the water hazard, breached its duty of care. Hoeben J held that whilst the RTA had breached its duty of care, by not placing the sign between 150300 metres from the water hazard, it was not the RTA's positioning of the sign that caused the accident, but rather the speed at which Mr Kelly was driving, combined with his failure to keep a proper lookout.
The appellants claimed that Hoeben J erred in finding Mr Kelly at fault, submitting that it was the RTA's positioning of the warning sign which caused the accident.
In response, the RTA contended that the trial judge had erred in finding the RTA had breached its duty of care, and in this regard sought to rely on section 43A of the Civil Liability Act 2002 (NSW).
Section 43A provides that in civil proceedings against public or other authorities:
Giles JA (McColl JA & Sackville AJA agreeing) noted the trial judge had adopted a 'two-step' approach to applying section 43A, having understood it to be the approach suggested by Campbell JA in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited . The first step involved a finding of negligence against the RTA, which the trial judge did, and the second step required a determination of whether the positioning of the sign by the RTA some 900 metres from the water hazard was 'so irrational that it could not be regarded objectively as a reasonable exercise of the RTA's special statutory power to erect signs of that kind'.
No party questioned this two-step approach, and in any event Giles JA noted that on appeal it was appropriate to go directly to the question of whether the RTA's actions were 'so unreasonable that no authority having its special statutory power to erect warning signs could properly consider its act to be a reasonable exercise of that power'.
Giles JA remarked that it was evident that the language used in section 43A had been modelled on the administrative law principle of Wednesbury unreasonableness, derived from the English Court of Appeal's decision in Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948). His Honour went on to suggest that it was important to consider not only the words used, but also the section's purpose, which in his opinion was to '[raise] the bar for plaintiffs in proof of breach of duty of care by an authority in the exercise of a special statutory power'.
His Honour accepted that the administrative law context differed from that of personal injury, but nonetheless suggested that it was important to pay heed to the administrative principle of Wednesbury unreasonableness, and in doing so remarked that however the principle has been interpreted and applied, 'a constant is that Wednesbury unreasonableness must be at a high level'.
Applying this reasoning to the facts, Giles JA held that:
In addressing the issue of causation, Giles JA found that the requisite causal connection between the positioning of the sign and the accident had not been established.
Instead, His Honour's view was that all the available evidence did was to demonstrate that the accident was the result of a combination of Mr Kelly's inattentiveness and the speed at which he was driving, and to suggest that a warning sign closer to the hazard would have altered Mr Kelly's driving was speculative at best.
The Court of Appeal's decision confirms that the protection offered to public and other authorities under section 43A is significant. It will often be difficult for a plaintiff to assemble the evidence necessary to demonstrate, on the balance of probabilities, that in exercising a particular statutory power, an authority acted so unreasonably that no authority having the same special statutory power could properly have considered it to be a reasonable exercise of that power.
The decision is also useful in that it involves the first appellate acceptance that s43A can apply to the deployment of signage by road authorities. Signage was a traditional exception to defences based on nonfeasance and often represented an alternate avenue to success for plaintiffs. This decision will in all likelihood close off that alternative, in all but the most extreme of cases.
Finally, like the recent decision of Woolworths v Strong & Anor , this case also provides an example of the Court of Appeal's rigid approach to issues of causation, and the steps that must be undertaken to establish causation to the requisite degree under the Civil Liability Act 2002 (NSW).
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