Cairns Regional Council v Sharp [2013] QCA 297

SUPREME COURT OF QUEENSLAND CITATION: Cairns Regional Council v Sharp [2013] QCA 297 PARTIES: CAIRNS REGIONAL COUNCIL (applicant) v RAYMOND SHARP (respondent) FILE NO/S: Appeal No 2082 of 2013 DC No 195 of 2011 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Civil) ORIGINATING COURT: District Court at Cairns DELIVERED ON: 4 October 2013 DELIVERED AT: Brisbane HEARING DATE: 26 July 2013 JUDGES: Margaret McMurdo P and Gotterson JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Application for leave to appeal refused with costs. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the respondent, who was employed as a gardener by the applicant, was mowing a median strip on a busy Cairns thoroughfare – where the respondent was less than one metre from a 60 kph flow of traffic – where the respondent bent down to pick up a spring which had come off the motor-mower and, upon being startled by the sound of a car horn, knocked the mower handle with his hip and the mower blades moved onto his left hand, partially amputating his ring and little finger – where the respondent successfully brought an action in negligence against the applicant – where the applicant applies for leave to appeal, contending that the primary judge erred in concluding that the applicant had breached its duty of care to the respondent – where the applicant contends that the primary judge improperly considered the matter with hindsight and failed to take into account or give proper weight to the evidence relied upon by the applicant – whether the primary judge erred in concluding that the applicant breached its duty of care to the respondent TORTS – NEGLIGENCE – ESSENTIALS OF ACTION -- 1 of 12 -- 2 FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where the applicant contends that the primary judge erred in concluding that its alleged breach of duty caused the respondent's injuries – where the applicant contends that the respondent was injured because of his unpredictable response to a random act of the sounding of a car horn by a passing driver, over which the applicant had no control and the risk of which was slight – whether the primary judge erred in concluding that there existed a causal connection between the breach of duty and the respondent's injuries EVIDENCE – ADMISSIBILITY AND RELEVANCE – OPINION EVIDENCE – IN GENERAL – where the primary judge permitted Mr McDougall, an engineer experienced in occupational health and safety risk assessment, to give expert evidence identifying deficiencies in the conduct of the mowing task – where the applicant contends that the primary judge wrongly admitted the evidence as Mr McDougall lacked the experience necessary to give opinion evidence; that many of the matters upon which he expressed an opinion were self-evident and should not have been the subject of expert evidence; and that he effectively "swore the issue" – whether the primary judge erred in admitting the evidence of Mr McDougall District Court of Queensland Act 1967 (Qld), s 118 Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 224 Lusk v Sapwell [2012] 1 Qd R 507; [2011] QCA 59, cited McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60, considered Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, cited R v Bonython (1984) 38 SASR 45, cited Sharp v Cairns Regional Council [2013] QDC 14, related Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, cited Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, cited Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, considered COUNSEL: W D P Campbell for the applicant R Ingham-Myers for the respondent SOLICITORS: Bruce Thomas Lawyers for the applicant Shine Lawyers for the respondent [1] MARGARET McMURDO P: At about lunchtime on 20 May 2009, the 58 year old respondent, Mr Raymond Sharp, who was employed as a gardener by the applicant, Cairns Regional Council, was mowing a median strip on Sheridan Street, -- 2 of 12 -- 3 Cairns. He bent down to pick up a spring which had come off the motor-mower when he was startled by the sound of a car horn. In his surprise, he knocked the mower handle with his hip and the mower blades mangled his left hand. His left little and ring fingers were amputated at the first knuckle. He successfully brought an action in negligence against the Council. The Council has applied for leave to appeal from the primary judge's decision that it breached its duty of care to Mr Sharp to provide a safe system of work and was liable to pay damages of $51,553.35. Leave to appeal under s 118 District Court of Queensland Act 1967 (Qld) is necessary because the damages award was for a sum less than the monetary jurisdiction of the Magistrates Court. The proposed appeal concerns only liability. [2] The Council contends leave to appeal should be given because errors of law have resulted in a substantial injustice and the judgment below sets an undesirable precedent. In its proposed notice of appeal, the Council contends that the judge erred in finding that the Council breached its duty of care to Mr Sharp in that his Honour wrongly used hindsight and gave insufficient weight to the evidence relied on by the Council; wrongly found a causal association between the alleged breach and Mr Sharp's injuries; and wrongly admitted the evidence of Brendan McDougall, a mechanical engineer who gave expert opinion evidence on workplace safety issues. [3] If leave to appeal is granted, Mr Sharp has filed a notice of contention alleging that the conclusion that the Council breached its duty of care should be affirmed on grounds other than those relied on by the judge. The first is that the breach of duty is supported by findings in the Council's Accident Investigation Report that the accident was caused by a lack of procedures or training for the safe operation of the mower. The second is that the breach of duty is supported by the Council's failure to develop a Work Method Statement for its employees working on or near roads. The third is that the breach of duty is supported by the Council's failure to undertake a risk assessment, to use road signage and to provide a mower maintenance program. Finally, he contends that Mr McDougall's evidence established that the Council breached its duty of care in the following respects. The Council failed to: follow an appropriate occupational health and safety management system; require workers when mowing adjacent to the kerb to face oncoming traffic; require that mowers be shut down when a component failed or malfunctioned before attempting repair or investigation; and implement a routine mower inspection system, in the absence of which a defect may remain undetected until malfunction. [4] The discretion to grant leave to appeal is a broad one but it is ordinarily exercised only where there has been an apparent error of law warranting correction to avoid a substantial injustice. It may also be granted where uncertainty as to legal principle warrants a definitive statement of the law from this Court. But it is not contended that this is such a case. In determining whether there has been an error of law warranting the grant of leave to appeal in this case, it is necessary to consider the merit of the issues raised by the Council in its proposed grounds of appeal. The parties fully canvassed these in their written and oral submissions. A review of the primary judge's reasons is a useful starting point in this undertaking. The primary judge's reasons [5] The trial proceeded over three days in November 2012 and January 2013. His Honour's four and a half pages of reasons were delivered in early 2013 and dealt -- 3 of 12 -- 4 with both liability and quantum. The judge accepted Mr Sharp's evidence, finding him to be honest and reliable. He was mowing in a northerly direction less than 1.2 metres from the traffic travel path. He noticed that a spring had detached from the mower deck. As this was a hazard, he leant forward and to his left to pick it up and was startled by a car horn which sounded very close by. This caused his right hip to come in contact with the mower handle and to inadvertently push the mower over his left hand. He suffered injuries resulting in partial amputations of his ring and little fingers.1 [6] Mr McDougall, an engineer experienced in occupational health and safety risk assessment, identified deficiencies in the conduct of the mowing task. The Council did not require a formal risk assessment to be undertaken by workers before they commenced mowing. It did not require workers to mow only when facing oncoming traffic. It did not have a routine inspection system for mowers.2 [7] Mr Sharp, however, was well aware of the risks posed by mowing near traffic, having completed courses since July 2000 on occupational health and safety including road work signage and traffic control. He considered this a small mowing job for which he and his co-workers did not need traffic control devices such as signs and witches hats as they did for longer mowing jobs. In those circumstances, the Council's failure to require Mr Sharp to undertake a formal risk assessment before commencing mowing was of no consequence; there was no evidence that had the Council done so, Mr Sharp would have undertaken the mowing task any differently.3 It did not matter that he didn't mow in the direction of oncoming traffic; he was facing downwards when he was injured and the noise of the horn could have come from any direction. There was no evidence that the spring became detached from the mower because of lack of maintenance. There was insufficient proximate connection between these aspects of the Council's conduct and Mr Sharp's injury to give rise to a cause of action.4 [8] Mr McDougall recorded that the maximum traffic speed in Sheridan Street where the incident occurred was 60 kph. Sheridan Street was the major northern Cairns thoroughfare with several lanes each side of the median strip and an additional turning lane. The standard set out in the Manual of Uniform Traffic Control Devices (MUTCD) required that, where warning signs and cones or bollards were used, they were to be placed along the kerb line. Mr McDougall considered it was an unacceptable risk to have a person mowing less than one metre away from a 60 kph traffic flow. An appropriate response to the risk was to close the lane adjacent to where Mr Sharp was mowing.5 [9] His Honour6 cited Mason J's oft-quoted passage concerning risk in the context of breach of duty of care in Wyong Shire Council v Shirt.7 The judge next referred to the equally well-known passage in McLean v Tedman8 highlighting a modern employer's obligation not only to provide but also to maintain and enforce a safe 1 Sharp v Cairns Regional Council [2013] QDC 14, [2]-[4]. 2 Above, [5]. 3 Above, [6]. 4 Above, [7]. 5 Above, [8]. 6 Above, [9]. 7 (1980) 146 CLR 40, 47-48. 8 (1984) 155 CLR 306, 313. -- 4 of 12 -- 5 system of work.9 His Honour concluded that there was a foreseeable risk that Mr Sharp may be injured when mowing close to vehicles travelling along Sheridan Street at up to 60 kph. That was presumably why the Council provided him with signs and witches hats and instructed him on their correct use. As noted in McLean v Tedman,10 a foreseeable risk of injury can arise from the mere possibility of negligence on the part of the motorist. The Council breached its duty to Mr Sharp in failing to ensure appropriate signs and traffic control devices were used to provide a safe buffer between where he was mowing and passing traffic. His Honour accepted Mr McDougall's evidence that such a buffer should include a traffic lane.11 [10] The sounding of the car horn in the immediate vicinity of Mr Sharp caused the incident. His Honour referred to Mr Sharp's evidence and the Council's Accident Investigation Report which showed that, at the time of the accident, he was reaching downwards and closer to the traffic approaching him from behind at the point where the turning lane commenced. Had there been a safe buffer between Mr Sharp and adjacent traffic, he would not have been startled, knocked the mower handle and injured himself.12 The admissibility of the expert opinion evidence [11] The Council contends that the trial judge wrongly admitted Mr McDougall's report and oral evidence. He lacked the expertise necessary to give opinion evidence. Many of the matters upon which he expressed an opinion were self-evident and should not have been the subject of expert evidence. He effectively "swore the issue" by expressing an opinion on conclusions which were matters for the trial judge. [12] Whilst accepting that Mr McDougall was not permitted to swear the issue, his Honour considered that the witness had relevant expertise because of his broad experience in analysing behaviour in the context of risk. He admitted Mr McDougall's report, noting that other issues raised by the Council might well go towards its weight.13 [13] Mr McDougall's curriculum vitae was attached to his report14 and the Council has not challenged its veracity. He obtained a Bachelor of Mechanical Engineering with Honours from the University of Queensland in 1978 and has subsequently completed extensive courses associated with traffic and occupational accident assessment and prevention. Since March 1997, he has been a consulting engineer with InterSafe, an engineering consultancy firm specialising in occupational health and safety management systems, risk management activities and accident investigations. He has provided advice to various industries on a range of matters including accident investigation, reporting and corrective action. He has produced over 1,300 reports in this field and had given expert evidence in many proceedings. 9 Sharp v Cairns Regional Council [2013] QDC 14, [9], [10]. 10 (1984) 155 CLR 306, 313. 11 Sharp v Cairns Regional Council [2013] QDC 14, [11]. 12 Above, [12]. 13 T1-11–1-12. 14 Ex 1, Item 20, attachment 2. -- 5 of 12 -- 6 [14] In his report for this case,15 he referred to the need for employers to systematically indentify and control workplace risks. This involves auditing equipment and activities to identify hazards, assessing risk, developing and implementing control measures and subsequently monitoring their effectiveness. A valuable source of information providing guidance on risks associated with working on or close to roadways is the Australian Standard AS1742.3-2009, the MUTCD. Its cl 4.4.5 is relevant to risks posed by adjacent traffic when mowing median strips in built-up areas and relevantly provides: "… (ii) Workers on foot or small items of plant Where there are workers on foot or small items of plant, or both, the work method shall be restricted to one of the following: (A) The speed limit is 60 km/h or less and the work area does not encroach onto a moving traffic lane. … The Worker (symbolic) (T1-5) sign or ROAD PLANT AHEAD (T1-3) shall be displayed respectively, when either workers on foot or plant items alone are present and working closer than 3 m to a moving traffic lane. Wherever there are workers on foot or small items of plant working 3 m or less clear of a moving traffic lane, cones or bollards, in accordance with Clause 3.9.1, shall be placed along the kerb line or edge of traffic lane if no kerb."16 [15] Mr Sharp did not comply with these minimum requirements. The Council should have insisted that such procedures be adopted. This was particularly so because of the specific hazards of the work situation here: the moderate to high traffic volume in Sheridan Street; the narrow median strip which required Mr Sharp to spend much of his time immediately adjacent to the kerb; the length of the grass; the six to eight degree slope in the grassed area adjacent to the kerb; and the difficulty in placing cones or bollards along the kerb line as recommended in the MUTCD. Mr McDougall considered that the combination of these factors created a higher level of risk control than the ordinary situation when working adjacent to moving traffic to which the MUTCD applied. [16] Mr McDougall summarised the factors he considered contributed to the accident. Mr Sharp was working less than one metre from the kerb and the adjacent traffic lane. The nearside wheels of the mower would have been on the slope at between six and eight degrees. The spring on the mower failed and he reached to pick it up without stopping the motor. There was restricted space between the mower and kerb preventing access to this side of the mower. He had his back towards the oncoming traffic flow. The vehicle sounded its horn in close proximity to Mr Sharp. Some of these factors could have been identified and controlled had the 15 Ex 1, Item 20. 16 Ex 1, Item 20. -- 6 of 12 -- 7 work situation been subject to an audit and risk assessment as part of an appropriate occupational health and safety management system. The Council did not meet the minimum requirements of the MUTCD. Additional risk control was appropriate including lane closure, signage and a shadow vehicle fitted with an illuminated flashing arrow. In the absence of lane closures, the minimum procedural control was to require Mr Sharp to work facing oncoming traffic to increase the likely detection of any potential threat or unexpected traffic activity. Had these procedures been implemented, the likelihood of an accident such as that which occurred would have been reduced. [17] Mr McDougall was made available for cross-examination at the trial. It was put to him that closing a traffic lane whilst Mr Sharp mowed the median strip was likely to cause road users to become more impatient and to sound their horns even more. Mr McDougall responded that he could not answer that question but noted that it was illegal to sound a horn for undue reason.17 He agreed that had the horn not sounded, this accident would probably not have happened.18 He explained that mowing a median strip required more significant safety procedures than mowing a footpath where there was generally a parking area adjacent to the footpath and cars were not travelling at 60 kph within a metre of the worker.19 There was no re-examination. [18] Expert evidence is admissible as an exception to the hearsay rule only if it meets two criteria. First, it must concern matters about which ordinary people are unable to form a sound judgment without the assistance of those with special knowledge or experience in the area. Second, it must be the subject of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience: Osland v The Queen20 and R v Bonython.21 [19] Mr McDougall's degree in mechanical engineering and his subsequent extensive study and practical experience in the field of workplace health and safety and accident prevention provided him with special knowledge and experience beyond that of ordinary people. Workplace health and safety management and accident prevention is broadly recognised as a modern field of expertise. Mr McDougall's evidence was rightly admitted. The judge was not, however, obliged to accept it. [20] It remained for the judge to determine whether Mr Sharp had established that the Council breached its duty of care as his employer. Mr McDougall's evidence encompassed the actions he considered the Council employer should have taken from a workplace health and safety perspective to lower the level of risk to its employee, Mr Sharp, whilst mowing this median strip close to moving traffic. But it was for the judge to decide whether he accepted the facts upon which Mr McDougall's opinion was based; whether he accepted Mr McDougall's expert opinion; and after considering other relevant evidence, to determine whether Mr Sharp established that the Council breached its duty of care to him. The evidence was rightly admitted and did not amount to "swearing the issue". Indeed, the judge found that aspects of Mr Sharp's case were not proved, despite Mr McDougall's evidence. 17 T1-75.27–1-77.14. 18 T1-77.40-56. 19 T1-78.1-10. 20 (1998) 197 CLR 316, 336 (Gaudron and Gummow JJ). 21 (1984) 38 SASR 45, 46-47 (King CJ). -- 7 of 12 -- 8 [21] The proposed ground of appeal that Mr McDougall's evidence was wrongly admitted and amounted to swearing the issue has no substance. Breach of duty of care [22] The Council contends the judge erred in concluding that it breached its duty of care to Mr Sharp. His Honour improperly considered the matter with hindsight rather than undertaking a prospective analysis. His Honour failed to consider or give proper weight to Mr Sharp's evidence that he did not think it necessary to erect signs or witches hats in accordance with the MUTCD as the mowing job he was undertaking would take only five minutes. The judge failed to take into account that the random, uncontrolled sounding of a car horn could have been that of a friend or work colleague. Non-compliance with the MUTCD did not equate to a breach of duty. Compliance with it would not have increased the distance between Mr Sharp and passing vehicles. Mr McDougall's recommendation to close an entire lane on each side of the median strip was an unreasonable and impractical remedy. There was no evidence that this would have prevented Mr Sharp's startled response to a passing driver sounding a horn. [23] Mr Sharp's evidence included the following. He left school at 14 and a half after completing year 9 or 10. He was not an academic achiever. He had many and varied jobs as a manual labourer. After his marriage, he settled into steady employment for 20 years with Shell Australia, initially filling oil drums and then controlling two distribution pipelines from the control room, until he took a redundancy and moved to Queensland with his family. He commenced working with the Council in early 1999. In the course of his employment, he completed short work courses, most relevantly traffic management roadwork signing and job safety analysis in 2003, and general safety induction (construction industry) in 2007. He otherwise had no training until he recently qualified in horticulture as a gardener. [24] His risk assessment of his work tasks was to "… look at the area, if it's nice and quiet, then I'll go and do the job."22 He explained that he was not generally obliged to put out signs when undertaking gardening jobs of 10 or 15 minutes. Placing signs required the use of a wheelbarrow, big road signs and a dozen or so heavy witches hats. He would also have to take his water bottle, whipper-snipper and mower. He added: "If you're going to do it for every small job and it'll be – I think every 10 minutes, you know, you - you go all – through all the procedure just for 10 minutes, it's just not feasible, I suppose. So we're given a window – a window of time where – if it's not going to – if we don't think it's going to take too long, just get in there and do it and get out."23 [25] He explained that nobody had told him to put out signs and place witches hats along the kerb only for longer jobs but that was the practice he and his supervisor had adopted. He did not consider that the witches hats were effective in keeping traffic 22 T1-33.32-33. 23 T 1-34.26-32. -- 8 of 12 -- 9 away: "they're there to be knocked over most of the time. But anyway, we put them out – well, we have to."24 [26] On the day of the accident he was working close to his depot at Munro Martin Park. At 1.00 pm, just after lunch, he was mowing the three metre wide median strip in Sheridan Street from south to north. He had completed about two-thirds of the job and was on the outer edge of the median strip when he noticed a spring from the side of the mower had come adrift. As he bent to pick it up, he was startled when "[s]omebody decided to toot the horn behind [him] somewhere."25 His body hit the side of the mower and knocked it onto and injuring his left hand. He repeated that he was disturbed by the sound of a tooting horn behind him somewhere, adding that it "wasn't too far away, 'cause it – otherwise it wouldn't have made me jump."26 When he heard the noise he must have tried to look backwards and his right hip must have knocked the handle of the mower.27 [27] The Council's Accident Investigation Report was tendered.28 It was completed by an accident investigator, Helen Vukelic, in November 2009. It annexed Mr Sharp's statement taken two days after the accident which included: "I bent over the left hand side of the mower to grab the spring from falling off the mower. At that time I heard the sound of a horn from a vehicle of which I perceive [sic] was very close. This startled me[.] I immediately felt pain in my left hand and noticed that I lost the tops of my ring and little finger and they were bleeding significantly." 29 [28] The report concluded that: "… the incident was caused by a number of factors: 1. There are no procedures or training for the safe operation of a utility mower (including employees must not touch the deck if the equipment is running. 2. No Work Method Statement (WMS) for Working on or Near Roads. 3. No Risk Assessment conducted for this activity. 4. No Road Signage. 5. There is no maintenance program in place for mowers and small plant. Recommendations I recommend the following to reduce the risk of a simular incident reoccurring. 24 T1-34.49-50. 25 T1-38.35-36. 26 T1-38.40-41. 27 T1-45.19-30. 28 Ex 2. 29 AB 330. -- 9 of 12 -- 10 1. Develop procedures for safe operation of utility mowers and specifically that employees must not touch the deck if the equipment is running. 2. Develop Work Method Statement (WMS) for mowing tasks on medium strips and include Traffic Management control. The WMS will include the risk assessment for this activity. 3. Ensure road signage is erected according to the MUTCD 2007 Part 3. 4. Develop a maintenance program for mowers and small plant that identifies maintenance requirements before breakdowns occur. This was previously identified in another WH&S Incident Investigation DOC # 1720306" (errors in original).30 [29] In applying the seminal principles established in Wyong Shire Council v Shirt,31 his Honour was first required to assess whether a reasonable employer in the position of the Council would have foreseen that Mr Sharp's mowing of the median strip involved a risk of injury to him. The median strip was several hundred metres long and only about three metres wide. Sheridan Street was the main northern thoroughfare in Cairns. The speed limit was 60 kph. There were three traffic lanes with an additional kerbside parking lane on each side of the median strip, plus a further turning lane heading north, adjacent to where Mr Sharp was mowing. The use of a mower close to busy traffic clearly created a situation of considerable risk. It was foreseeable and not far-fetched or fanciful that if traffic in close proximity to Mr Sharp behaved abnormally he could be startled and instinctively react, inadvertently knocking the motor-mower onto and injuring himself. [30] In accordance with the Shirt principles, the judge must then determine what a reasonable employer in the position of the Council would do by way of response to the identified risk. This required a consideration of the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities. [31] The Council placed emphasis on the short time in which the mowing task was to be completed. But the fact that a risky activity is likely to be completed quickly does not absolve an employer from responsibility if a breach of duty is established. It was also irrelevant that the horn-blowing motorist may have been Mr Sharp's friend or work colleague. Nor did the fact that Mr Sharp did not consider lane closures were warranted absolve the Council. His training in safety matters was clearly at a basic level. He did not have the expertise in these matters of Mr McDougall or, for that matter, the Council's accident investigator, Ms Vukelic. No doubt he wanted to get the mowing job done quickly and with as little effort as possible. There was a real potential for serious injury or even death to Mr Sharp whilst mowing a narrow median strip in the middle of seven lanes of traffic on a major and busy thoroughfare through the abnormal behaviour of close passing traffic startling him and causing him to inadvertently knock the motor-mower and injure himself. The risk could have been significantly alleviated by closing a lane each side of the 30 Ex 2, 4-5. 31 (1980) 146 CLR 40, 47-48. -- 10 of 12 -- 11 median strip and erecting temporary traffic warning signs. The Council contends that because Mr Sharp's mowing of the median strip was to take only about five minutes, it was impractical to require him to block off a lane on each side of the median strip in the way identified by Mr McDougall and accepted as reasonable by the primary judge. [32] As Mr Sharp explained, the traffic signage and lane closure envisaged as a reasonable Council response by the primary judge would have added significantly to the time and effort required for a relatively short task. But it was a task with obvious and grave dangers. The Council had the onus to establish that implementing this relatively simple system was unreasonable and impractical: Swain v Waverley Municipal Council.32 There was no evidence other than Mr Sharp's that this was unreasonable or impractical. This aspect of Mr Sharp's evidence is a stark example of why a modern employer must not just provide but implement and enforce a safe system of work to avoid accidents: McLean v Tedman.33 And nor did the Council suggest that other conflicting responsibilities absolved it from implementing Mr McDougall's recommended lane closures and signage. In finding that the Council as employer breached its duty to Mr Sharp in not ensuring appropriate signs and traffic control devices were used to provide a safe buffer between where he was mowing and passing traffic, the judge was not acting with hindsight34 but was applying in an orthodox fashion the well-established Shirt principles. [33] It is true, as the Council points out, that the MUTCD did not have force of law. But it was incorporated into an Australian Standard and was a relevant matter for Mr McDougall to consider in forming his expert opinion as to what was a safe procedure. The judge did not reason that merely because the Council did not comply with the MUTCD, it had breached its duty. Indeed, as the Council points out, compliance would not have created much of a buffer zone between Mr Sharp and the heavy traffic on Sheridan Street. In the circumstances pertaining here, the judge was right to accept Mr McDougall's evidence that a lane closure each side of the median strip was required. [34] The Council's contention that the judge erred in concluding that it breached its duty of care is not made out. Causation [35] The Council's final contention is that the judge erred in concluding that its breach of duty caused Mr Sharp's injuries. He was injured because of his unpredictable response to a random act of the sounding of a car horn by a passing driver. This was something over which the Council had no control and the risk of which was singularly slight. Sounding a horn unless warning other road users of a hazard breached the Transport Operations (Road Use Management – Road Rules) Regulation 1999, s 224. The evidence does not establish that any buffer zone between Mr Sharp and passing vehicles would probably have altered Mr Sharp's response to the sounding of the horn. 32 [2005] HCA 4; (2005) 220 CLR 517, 566-567. 33 (1984) 155 CLR 306, 313. 34 Vairy v Wyong Shire Council (2005) 223 CLR 422; Lusk v Sapwell [2012] 1 Qd R 507. -- 11 of 12 -- 12 [36] The Council's emphasis on the road rules is a distraction. Motorists all too commonly offend road rules, but even the lawful sounding of a horn in close proximity to a worker mowing a median strip in the midst of a busy road could easily cause workers to be startled. If there is, and workers know there is, a lane-wide buffer between the workers and the traffic, they are much less likely to be startled. [37] Mr Sharp gave evidence that the sound of the horn tooting behind him was in reasonably close proximity to him because otherwise it would not have made him jump. He told the Council's Ms Vukelic two days after the accident that he perceived the sound of the horn was very close. Had the temporary lane closures been implemented, the traffic would have been further away from Mr Sharp. The most rational inference, which the judge apparently drew, was that, had there been this safe traffic-free buffer zone between Mr Sharp and the passing traffic, the sounding of the horn would have been more distant and less likely to have startled him. He presumably would not have instinctively reacted, knocking the handle of the mower and inadvertently pushing the mower blades onto and injuring his left hand. A substantial cause of the injury was the Council's failure to ensure Mr Sharp adopted a safe system of work whilst mowing the narrow median strip in a busy, major thoroughfare. [38] The Council's contention that Mr Sharp did not demonstrate a causal connection between the breach of duty and his injuries is not made out. Conclusion [39] The Council has not established any of its proposed grounds of appeal. It has not demonstrated any error of law which has resulted in a substantial injustice. It follows that it has not made out its contention that the judgment below sets an undesirable precedent. The decision below is remarkable only for its brevity but it is not contended the reasons were inadequate. The judgment contains a brief but reasoned application of established legal principle to facts rightly found on the evidence. As the proposed appeal has no prospect of success, the application for leave to appeal should be refused with costs. The notice of contention contains a number of grounds which appear to have substance but as there is no appeal, it is unnecessary to deal with them. ORDER: Application for leave to appeal refused with costs. [40] GOTTERSON JA: I agree with the order proposed by Margaret McMurdo P and with the reasons given by her Honour. [41] DOUGLAS J: I agree. -- 12 of 12 --