objectives of legal issues tort law of road safety …

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LEGAL ISSUES

of

ROAD SAFETY AUDIT

Dr Judd Epstein

OBJECTIVES OF

TORT LAW

COMPENSATION

SAFETY

• General Deterrence

• Specific Deterrence

RESOURCE ALLOCATION

NEGLIGENCE

The Four Elements:-

• DUTY – a duty of care exists

• FAILURE TO TAKE

REASONABLE CARE

• CAUSATION (connection between the

deficiency and the damage)

• DAMAGE has occurred

DUTY OF CARE

Defendant must have known that the risk was

• Foreseeable AND

• Not insignificant

Civil Liability Act 2002 sec. 5B

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IMMUNITYfrom the Duty of Care

(a) Nonfeasance

Nonfeasance: an authority is said to owe

no duty of care to anyone for its pure

failure to act (failure to repair the road)

Misfeasance: taking positive action but

acting carelessly (ie negligently)


(a) Nonfeasance

Reintroduction of immunity:

ROAD AUTHORITY DUTY

Immunity from duty to repair or inspect

road for need to repair

UNLESS

Authority has actual knowledge of risk

which resulted in harm

Civil Liability Act 2003 s.37

PUBLIC AUTHORITY

LIABILITY

Court to consider:

• Limited financial or other resources

• General allocation of resources not open to challenge

• The functions of the authority are determined by the broad range of its activities

• Evidence of compliance with applicable standards are evidence of proper exercise of its functions


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Referring to ‘Has reasonable care been taken’:

REASONABLENESS

• Probability that harm would occur

• Likely seriousness of the harm

• Burden of taking the precautions

• Social utility of the risk creating activity

Civil Liability Act 2003 s.9(2)

A BREACH OF THE

STANDARD OF CARE

Risk must be:

• Foreseeable

• Not insignificant

• Reasonable person would have taken the

precautions


CAUSATION

• Factual causation

• Scope of liability (whether and why

responsibility for harm should be imposed)


New interchange & straight

northbound carriageway now

built to replace the intersection

The intersection

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Image by RTA

Image by RTA

Image by RTA

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CONTRIBUTORY NEGLIGENCE

• Claimant must act to protect their own health and safety

• Standard of care for plaintiff:– Reasonable person in that position

– What the plaintiff knew or ought to have known at that time

• Intoxication is contributory negligence unless plaintiff proves otherwise

• Injured person presumed to be aware of an obvious risk

CONTRIBUTORY

NEGLIGENCE

• Passenger in car with intoxicated driver -

minimum reduction for

contributory negligence is 50%

Civil Liability Act s.49

POLICY OPERATIONAL

General Specific

cost, political, professional, customary

social factors factors

high level lower level

formal decision taking informal


(b) Policy Matter

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King Street &

Devonshire Road

Looking south, from dead end of King Street

Image by Jamieson Foley- modified by RM to replicate conditions at time of the crash

Looking north


Looking north


7

Looking east


Accident

reconstructioncourtesy of

Jamieson Foley

(based on Police plan)

Looking north, night of crash - 2001

Image by NSW Police

Looking north, night of crash - 2001

Image by NSW Police

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Looking north east, night of crash - 2001

Image by NSW Police

Looking west, night of crash - 2001

Image by NSW Police

Part of

Police

plan

Ms Theden drove a hired Toyota Land

cruiser in northbound direction along

Endeavour Valley Road 35 km north of

Cooktown

Theden v Nominal Defendant

Theden v State of Queensland

Theden v Shire of Cook

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•She was confronted by a sedan substantially on the incorrect side of the roadway.

•Her motor vehicle left roadway and overturned.

•Driver and passenger injured

Theden (2)

•Not possible to see oncoming vehicles in the dip until close to the crest.

•Stopping sight line about 40 metres.

•Road characteristics in respect of its horizontal and vertical curves fall below Australian and Queensland standards.

Theden (3)

CARLSON v.

State of Queensland

Fatality at Kybong, south of Gympie

Intersection of Bruce Highway and

Tandur Road West

CARLSON (2)

• P Plate Driver waiting in Tandur Road West

to turn right onto Bruce Highway and head

south

• Truck and bus (northbound) were nose to

nose until bus turned into Tandur Road West

for Matilda Service Station

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CARLSON (3)

• 2003-2010: 10 reported crashes

• 6 of 10 identical

• 2003: moved stop line 3 metres back (west)

• Modelling : 81 seconds average waiting

time to cross or turn right

CARLSON (4)

TRANSPORT OPERATION

(Road Use Management) ACT 1995

• Sec 4 (1): Although it may be possible to regulate

the highest level of safety, doing so would ignore

the impact of the regulation on the effectiveness

and efficiency of road use

• Sec 4 (2): Therefore this Act acknowledges the

need to achieve an appropriate balance between

safety, and the costs that regulation imposes on

road users and the community

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NEGLIGENTLY

CONDUCTED AUDITS

• Duty of Care to Highway Authority

• Joined to Proceedings by Highway

Authority when Authority Sued by

Injured Road User

• Reasonable Auditor Assessment

Disclaimer

“Road crashes can have a very wide range of contributing factors, and therefore the audit team must point out no guarantee can be made that every single safety concern has been identified. Further, even if all the recommendations in this report are followed, there can be no guarantee that the project is ‘safe’. Adoption of the road safety audit recommendations should reduce the risk of using a road –it will not eliminate entirely such risk. While every effort has been made to ensure the accuracy of this road safety audit report, it is made available strictly on the basis that anyone relying on it does so at their own risk without any liability to the audit team. ”

The Law and Road Safety Audits

• The Law looks to the “State of the Road”

and awards damages when deficiencies in

the road contribute to a road user’s injuries.

• It leaves it up to the experts how those

deficiencies are discovered and treated.

Responding to the Audit Report

“As set out in the road safety audit guidelines, responsibility for the road design always rests with the designer/project manager, and not with the audit team. A project manager is under no obligation to accept all the audit recommendations. Also, it is not the role of the audit team to agree to or approve of the project manager’s response to the audit. Rather, the audit provides the opportunity to highlight potential problems and have them formally considered by the project manager, in conjunction with all other project considerations.”

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REJECTED AUDIT

FINDINGS

Duty to Consider Findings

• Accept

Reject

Defer

• Means of Prioritisation

• Means of Funding

• Probability that harm would occur

• Likely seriousness of the harm

• Burden of taking the precautions

• Social utility of the risk creating

activity


SYSTEM FOR

RECORDING AUDITS

• Project Identification/Name

• Team Leader and Members

• Audit Type

• Date Audited

• Date of Audit Report

• CARs issued date

• Close out / Sign off date

SYSTEM FOR FOLLOWING UP

WITH CORRECTIVE ACTIONS

• Identifying number

• Issued to

• Date of Issue

• (Date of Reminder)

• Reply Date

• (Comments)

• Date of Corrective Action Report (CAR) close out

– Means of prioritising works

– Means of funding works

EXAMPLE FROM NSW

HQ Ref

DO Ref

M/11.03 LT:LT WO Ref

ROAD SAFETY AUDIT COORDINATOR FROM:

BOMBADERRY Works Office

Date 11 April

ROAD SAFETY AUDIT SH1— PRINCES HIGHWAY

OVERTAKING LANES JASPERS BRUSH — MEROO MEADOW

I refer to your minute dated September and 7 February.

The corrective action reports were issued for the three overtaking lanes at

Flying Fox Creek (FF) Jaspers Brush (JB) and Meroo Meadow (MM).

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CAR 9-2/4/1 GUARDRAILA number of culverts and batters did not have the appropriate guardrail protection

Existing guardrail did not have the appropriate flares

FF & MM: all guardrails have bullnose terminal ends, however they do not have

12m parabolic flares. In relation to other guardrail needs with the Bomaderry

area, this is not considered to be a priority. No action is planned to install

correct parabolic flares.

FF, JB & MM: Most of the areas highlighted by the audit do not require guardrail.

There are numerous other areas within the Shoalhaven area that have a higher

priority. However, existing guardrail should be extended to the North by 40m

on the eastern side of the highway (FF) and should be erected at the culvert

200m south of Strongs Road (JB). The erection of this guardrail will be

included in a contract for the erection of 1,000m of guardrail in the Bomaderry

area.

FF, JB & MM: It should be noted that all guardrail was erected before construction

of the overtaking lanes.

CAR9-2/4/2 CLEARZONESFixed objects were located within the clear zones including a bus shelter, stock piles, and

box culverts to access gates

• JB: The concrete bus shelter is 4m from the edge line. The expense in moving

the bus shelter is not considered justified. A majority of the Princes Highway

has fixed objects within the Clear Zone. The section of road 3 km south of the

bus shelter contains over 150 trees within 1.5m to 6m of the edge line. The bus

shelter was constructed before work on the overtaking lane.

• JB: Some of the stockpiles are 4m from the edge line. There are limited

stockpile sites within this area and it is considered uneconomical to

discontinue using the site. No action is planned to relocate the material

stockpiled.

• MM: It is proposed to remove the small box culverts. The culverts can be used

for other drainage works. The work should be completed this financial year.

This approach recognises that even with a focus on

prevention, road crashes will occur - therefore, the

road system must be designed to be more forgiving of

human error and where any crash that does occur

minimises death and serious injury. It holds those who

design and manage the road system to be specifically

accountable for the safety performance of the network.

SAFE SYSTEMS APPROACH SAFE SYSTEM QUEENSLAND• Vision: The elimination of all fatalities and

serious injuries on Queensland Roads

• Previous Target: 5.6 road deaths per 100,000

population by 2011 (6.01 achieved)

(Deaths by 2011: 259 target; 269 achieved)

• Now: Reduce fatalities by 30%, from 303

(average 2008-2010) to 200 or fewer by 2020

• Reduce hospitalised casualties from 6,670

(average 2008-2010) to 4,669 or fewer by 2020.

2011

269

2012

280

2013

271

2014

223

2015

243

2016

251

2017

248Currently running at ~6,300

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THE ROAD SAFETY

PARTNERSHIP

• Department of Transport and Main Roads

• Local Government

• Motor Accident Insurance Commission

• Four others

The Safe System Framework

• Safe Roads and roadsides – aims to improve the

infrastructure of roads and the surrounding road

environment to minimize both the likelihood of a

crash happening and the severity of the crashes

that do occur

• Safe Speeds – aims to encourage travel at speeds

that are appropriate to the conditions and limit the

physical forces to survivable levels.

SAFE SPEEDS

15. Review speed limit guidelines to ensure

consistency with the safe system approach

and encourage all agencies involved with

setting speed limits to review their roads in

light of any changes to the guidelines.

CUMULATIVE SERIOUS

CASUALITY SAVINGS (%)

• Mid/side barriers 6

• Shoulder sealing 2

• Tactile Centre line 3

• Speed limits (rural) 53

• Speed limits (urban) 27

• Grad. Licensing System 4

MUARC for Tasmania

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Road Safety Audits

Incorporate Safe System principles in every

audit report

Civil Liability for Road Authorities

• The 1980s and 1990s saw Road Authorities

increasingly liable for injuries incurred by

road users.

• The Ipp Report in 2002 and state by state

legislative action has somewhat lessened the

exposure to liability.

General damages

• By injury scale value

• Maximum: 250,000

• By percentage using Schedule 4


Civil Liability Regulation 2003, Schedule 4

DAMAGES DAMAGES

Loss of earnings or earnings capacity

• Limit is three times average weekly

earnings per week


Personal Injuries Proceedings Act 2002 s.51

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PROCEDURAL ALTERATIONS

• Structural settlement (CLA 2003 Part IV)

• Jury Trial Excluded (CLA 2003 s.73)

• Compulsory Conferences/Mediation

(Personal Injuries Proceedings Act 2002)

• Costs Limitations (PIPA 2002 s.56)

• Restrictions on Advertising/Touting

(PIPA 2002 Ch. 3)

CONCLUSIONS• Road Safety Audits will help create a safer road

environment

• Road Safety Audits will be encouraged by the

legal system

• Focus of the law is the end product

“The state of the road itself”

and NOT

“The method by which an authority achieves this”

objectives of legal issues tort law of road safety …

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