Australia: Case Note: High Court Revisits Causation

Last Updated: 19 May 2008
Article by Peter Hunt
Roads & Traffic Authority v Royal [2008] HCA 19

Gummow, Kirby, Hayne, Heydon and Kiefel JJ

In Brief

A party is not liable to contribute, even where negligent, unless a causative link is established between that party's breach of duty of care and the injury


The High Court handed down its decision in Roads and Traffic Authority v Royal on 14 May 2008.

On 12 March 2001, a collision occurred near Wauchope between a vehicle driven by the Respondent, Royal, and the original Claimant, Smurthwaite.

The accident occurred a the cross-intersection between the Pacific Highway and Bago Road.

For drivers proceeding over the cross-intersection from west to east, the crossintersection was controlled by a Stop sign. At that point, the Pacific Highway had two lanes for through traffic proceeding north, a left turn lane for traffic turning into Bago Road, and a right turn lane for traffic turning off the highway to the east down Boyds Road.

Mr Smurthwaite stopped his vehicle at the Stop sign on Bago Road, and then proceeded to cross. At that moment there were four vehicles on the highway in the vicinity of the cross-intersection. Two were in the left-hand turn lane turning into Bago Road. A third was a vehicle driven by Mr Royal. The fourth was a Telstra van, which was a little distance behind Mr Royal's vehicle, and was driven by Mr Anthony Relf.

Mr Smurthwaite crossed the two through lanes, and reached the right-hand turn lane before being hit by Mr Royal's vehicle. Mr Smurthwaite sued the current Respondent, Mr Royal, and the current Appellant, the RTA.

At first instance, the trial judge found that the primary cause of the collision was Mr Royal's negligence, but reduced Mr Smurthwaite's damages by one-third for contributory negligence. The Claimant was awarded $871,019.50. The claim against the RTA was dismissed.

Mr Royal appealed to the Court of Appeal, inter alia, claiming that the trial judge erred in dismissing Mr Royal's cross-claim against the RTA.

The majority of the Court of Appeal found that the RTA breached its duty of care to the Claimant. The Court of Appeal found that the RTA were aware that crashes had occurred at the relevant intersection and found that it should have moved a Stop sign in order to improve the vision of drivers in the position of Mr Smurthwaite and construct a staged T-intersection. The Court of Appeal found that the RTA was one-third responsible for the accident.

The RTA sought special leave to appeal to the High Court. The grant of special leave was limited to the question of whether the RTA's breach caused the plaintiff's loss.

The RTA advanced two arguments in the High Court. Firstly, the RTA submitted that the collision was not caused by any breach of duty on its part, but rather was caused solely by the negligence of the drivers of the two vehicles. Secondly, the RTA argued that the Court of Appeal failed to consider whether there was a causative link between its negligence and the accident.

High Court

The leading Judgment in the High Court was delivered by Gummow, Hayne and Heydon JJ.

At paragraph 25 of their Judgment, the Majority judges agreed with the RTA's submission that the Court of Appeal failed to address whether there was any causative link between its negligent design of the intersection and the circumstances of the accident in question:

"The problem - the danger, the risk - thus discussed, however, had nothing to do with the collision in question. The problem or danger or risk was that where two vehicles were approaching in adjoining lanes, one might obscure the other. That did not happen in this case. It was clear from the evidence of the defendant, the evidence of Mr Relf (driving behind the defendant) and the evidence of Mr Hubbard (driving behind the plaintiff), that the defendant's vehicle was not obscured from the plaintiff's view by another vehicle. In short, even if it could be said that the appellant's breach of duty "did materially contribute" to the occurrence of an accident, "by creating a heightened risk of such an accident" due to the obscuring effect of one vehicle on another in an adjoining lane, it made no contribution to the occurrence of this accident."

The Majority also accepted the RTA's argument that there was, in fact, no causative link between the negligent construction of the intersection and the accident and that thereasoned, at paragraph 29, as follows:

"The appellant's first argument should also be accepted. The appellant correctly submitted that before the accident both plaintiff and defendant were in a position to see each other quite clearly. The plaintiff was in a position either to move decisively across the intersection or to wait until the cars on the Pacific Highway passed. The defendant had ample time to stop, slow down, change lanes or otherwise avoid a collision. The defendant and the plaintiff were each in a position to see the other in more than sufficient time for each of them to avoid the collision. The design of the cross-intersection was thus irrelevant to the cause of the accident. If the plaintiff failed to see the defendant, that could have been one causal factor in the collision. But it is not a failure for which the appellant was responsible: for since in clear conditions the defendant could and did see the plaintiff's vehicle as it stopped at the intersection and then began to move forward, the plaintiff could also have seen the defendant, just as Mr Hubbard, approaching the intersection behind the plaintiff, did. If the plaintiff did see the defendant, just as the defendant had seen the plaintiff, a causal factor was his failure to use his very good knowledge of the intersection to drive sufficiently carefully to avoid the risk of a collision. A further causal factor was the defendant's failure to act on his very good knowledge of the intersection, and use the ample time available to take steps to deactivate cruise control, slow down, stop or change lanes or otherwise avoid hitting the plaintiff's vehicle, when that vehicle was apparently doing nothing to avoid a collision, just as the driver behind him did. He had the time to do any of these things despite being in the wrong lane doing 105 kilometres per hour on cruise control in an area where the speed limit was 100 kilometres per hour and the advisory speed sign recommended 85 kilometres per hour. Another causal factor was the potentially misleading effect on the plaintiff of the defendant being in the right-hand turn lane rather than one of the through lanes."

Accordingly, the Majority allowed the Appeal.

Justice Kirby dissented, but Kiefel J agreed with the Majority and allowed the Appeal.


In many ways, the High Court's decision is restricted to its own facts and involves no general matter of principle.

However, the decision highlights that proving both negligence and injury does not necessarily establish liability. There must also be a causative link between the negligence and the injury.

This principle is deceptively difficult to apply in cases involving multiple defendants where all defendants may be negligent but causation is not so obvious.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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