DLA Phillips Fox acts for North Sydney Council in this
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.
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
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
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
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
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
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
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