Australian Capital Territory v Nicholas John Bell
[2004] ACTCA 2
•19 March 2004
AUSTRALIAN CAPITAL TERRITORY v NICHOLAS JOHN BELL
[2004] ACTCA 2 (19 March 2004)
APPEAL – personal injuries case – whether accident caused by hazard on roadway – whether leave should be granted to permit appellant to raise point not taken at trial – relevant principles.
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Sobania v Nitsche (1969) 16 FLR 329
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447
O’Brien v Komesaroff (1982) 150 CLR 310
Coulton v Holcombe (1986) 162 CLR 1
Geelong Building Society (in liq) v Encel [1996] 1 VR 594
University of Wollongong v Metwally (No 2) (1985) 60 ALR 68
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 23-2003
No. SC 30 of 2000
Judges: Crispin P, Connolly and Madgwick JJ
Court of Appeal of the Australian Capital Territory
Date: 19 March 2004
IN THE SUPREME COURT OF THE ) No. ACTCA 23-2003
) No. SC 30 of 2000
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:AUSTRALIAN CAPITAL TERRITORY
Appellant
AND:NICHOLAS JOHN BELL
Respondent
REASONS FOR JUDGMENT
Judges: Crispin P, Connolly and Madgwick JJ
Date: 19 March 2004
Place: Canberra
IN THE SUPREME COURT OF THE ) No. ACTCA 23-2003
) No. SC 30 of 2000
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:AUSTRALIAN CAPITAL TERRITORY
Appellant
AND:NICHOLAS JOHN BELL
Respondent
Judges: Crispin P, Connolly and Madgwick JJ
Date: 19 March 2004
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This was an appeal against a decision of the Chief Justice awarding the respondent the sum of $454,714.00 for damages in respect of personal injuries he had sustained as the result of a motor vehicle accident on 31 December 1998.
The respondent had been driving his motorcycle on Corin Dam Road in the Australian Capital Territory. As he approached a left hand bend, he dropped down a gear and slowed to a speed of 50-55 kph before leaning the bike over to negotiate the bend. As he did so, he noticed an area of gravel about 20 metres ahead and braked heavily. He was travelling at about 40-45 kph when he applied the brakes and about 30-35 kph by the time he reached the gravelled area. He attempted to steer the motorcycle through the tyre tracks that ran through the gravel but the back wheel slid out to the right and then abruptly regained traction on the bitumen portion of the roadway. He was thrown over the handlebars and suffered various injuries including a serious multiple fracture to the right wrist.
His Honour found that the gravel had been washed onto the bitumen surface of the road from a nearby fire road. Photographs in evidence suggested that vehicles had travelled through the gravel deposited on this section of the roadway. This movement had produced furrows in the gravel and “wind rows” on either side of the furrows. While the evidence did not establish how long the gravel had been present on the road, Mr Geoffrey Young, a ranger employed by the defendant, gave evidence that it had been present for some four to five months and that he had seen “road maintenance crews” at about fortnightly intervals clearing culverts and filling potholes.
His Honour accepted that “the system” adopted by the appellant for the inspection and repair of rural roads was reasonable and, but for the evidence of Mr Sallechia who was employed by the appellant as a senior engineer, would have concluded that the deposit and re-arrangement of gravel on the road was not an apparent hazard to people riding their motorcycles reasonably and in accordance with the advisory speed sign relating to the bend in question. However, Mr Sallecchia had given evidence that he regarded the gravel formations on the road to be a hazard that warranted prompt remedial action. In the light of this evidence, his Honour found that the road maintenance crews to which Mr Young had referred, should have noted the hazard and either reported it to their supervisor or swept it away. His Honour held that the failure to remove such a hazard, which the appellant knew or ought to have known would have created a danger to road users, particularly motorcyclists, constituted a breach of the duty of care which it owed to the respondent .
Mr Crowe SC, who appeared for the appellant with Mr Pilkinton, challenged these findings on two bases.
First, he submitted that his Honour had fallen into error in holding that the state of the road constituted a danger to the respondent. There had been undisputed expert evidence that a motorcycle should have been able to safely negotiate the gravelled area if it had been travelling at less than the “slide off” speed of 54 kph and Mr Crowe argued that, since the respondent’s motorcycle had been travelling at only 30-35 kph when it encountered the gravel, he should have been able to safely negotiate the area.
We were unable to accept this submission. As the evidence of Mr Sallecchia established, the presence of the gravel constituted a hazard to road users such as the respondent and it was the respondent’s observation of that hazard that led him to brake heavily. He did not have the benefit of expert evidence as to the likely “slide off” speed. Moreover, he had only a fraction of a second in which to make his own evaluation of the nature and extent of the hazard and to take measures to reduce the apparent risk. In the circumstances with which the respondent was confronted his response seems to have been entirely reasonable. Indeed, it was not even suggested that his response involved contributory negligence. Applying the “common sense” principle affirmed in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, we have no doubt that the accident was effectively caused by the presence of the gravel on the roadway.
Second, Mr Crowe sought leave to amend the Statement of Claim in order to raise two further grounds, namely -
·The Chief Justice erred in law in concluding that the appellant was liable for the failure of Totalcare employees or agents to keep an adequate lookout for gravel on the Corin Dam Road.
·The Chief Justice erred in law in concluding that the appellant was liable for inadequate instructions given by Totalcare to its road crews.
It was common ground that during the course of the trial neither of the parties had adverted to the independent status of Totalcare.
While appellate courts retain an overriding discretion to permit new points to be raised on appeal when the interests of justice require such a course, the maintenance of a fair and efficient system of justice normally requires the parties to ensure that all of the issues between them are litigated at the trial of the action. It would be clearly inappropriate to permit litigants to ‘save up’ a point as a means of obtaining a retrial should the approach adopted at trial prove to be unsuccessful. Furthermore, even when a party has genuinely overlooked a particular point, it may be unfair to deprive the other party of a verdict obtained after a full hearing and require him or her to incur the delay, expense and uncertainty of a new trial. Hence, an appellate court will not permit a party to raise a point that was not taken at the trial unless it is clear that the point could not possibly have been met by further evidence at trial: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Sobania v Nitsche (1969) 16 FLR 329 at 333-334; and Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at 461. In some cases it may prove expedient to permit an appellant to raise a point of law relating to the construction of a document or other facts that have been admitted or proved beyond controversy: O’Brien v Komesaroff (1982) 150 CLR 310 at 319; Coulton v Holcombe (1986) 162 CLR 1 at 8; and Geelong Building Society (in liq) v Encel [1996] 1 VR 594 at 605. Nonetheless, except in the most exceptional circumstances, a party against whom a case has been decided will not be permitted to raise a new argument which, whether deliberately or by inadvertence, he or she failed to advance when there was an opportunity to do so at trial: University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 at 71.
Mr Crowe argued that, notwithstanding these principles, the interests of justice required that the matter be remitted for retrial. He submitted that the respondent had sought to make the appellant responsible for the negligence of those engaged in the routine maintenance of the road without establishing any proper basis for a finding that the appellant was vicariously responsible for their acts or omissions. It has now become clear that those people were not employed by the appellant but by a statutory corporation and that it had been incumbent upon the respondent to demonstrate the existence of an agency relationship or some other circumstance justifying a conclusion that the appellant was vicariously liable for their negligence. Upon a retrial, it would be open to the respondent to maintain his claim against Totalcare and it was appropriate that the party actually responsible for the causation of his injuries accept liability for the damages awarded. Any hardship that may be caused to the respondent by requiring him to re-litigate his claim could be ameliorated by an order requiring the appellant to pay the costs of both the earlier trial and the appeal.
While these contentions were persuasively argued, we were unable to accept that the interests of justice required the course suggested. It had been conceded on the pleadings that the appellant was the occupier of the relevant section of the roadway and was responsible for its maintenance, care and control. If the appellant had wished to contend that it had been effectively relieved of that responsibility by delegating or assigning it to Totalcare or that it had adequately discharged its duty by engaging Totalcare, then that should have been pleaded in the defence. In fact, the point was raised only incidentally in the evidence of Mr Sallecchia who, when asked whether his department had the responsibility for the day to day maintenance of the roads, replied:
I guess indirectly we do have responsibility for – for say routine maintenance which is actually – which at the time was done by Totalcare, our service provider.
While counsel for the appellant sought to argue that Totalcare was an independent contractor, it did not seek to adduce any evidence to this effect at the trial or seek to demonstrate that, notwithstanding Mr Sallecchia’s evidence, the appellant was not in fact responsible, even indirectly, for the routine maintenance carried out by Totalcare. Mr Lunney, who appeared for the respondent, submitted that if any such submission had been made concerning these issues at trial, then the respondent’s legal advisers would have been alerted to the need to make a tactical decision as to whether an application should be made for leave to join Totalcare as a party to the proceedings. Furthermore, it would have been necessary to explore issues concerning the nature of the relationship between the appellant and Totalcare and the extent, if any, to which that relationship may have affected the duty that the appellant would otherwise have owed to the respondent. For example, it would have been necessary to consider whether Totalcare had carried out the relevant maintenance work as an agent for the appellant. That could not have been done at trial. The relevant facts were substantially within the knowledge of the appellant, no evidence as to the nature of the relationship had been adduced and the appellant had not produced any contractual documents on discovery.
Mr Lunney also argued that if leave to amend the Notice of Appeal were to be granted then considerable prejudice might be caused to the respondent who would be forced to seek further time to make additional submissions on this issue and more importantly, might be forced to incur the delay, expense and uncertainty of a new trial. On the other hand, if leave were to be refused it would still be open to the appellant to take proceedings against Totalcare for indemnity or contribution.
Having considered all of the submissions, we were not satisfied that there were adequate grounds for departing from the normal principles applicable to points not taken at trial and concluded that leave to amend the Notice of Appeal should be refused.
Consequently we ordered that the appeal be dismissed and that the appellant pay the respondent’s costs of the appeal.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 19 March 2004
Counsel for the appellant: Mr R Crowe SC with Mr S Pilkinton
Solicitor for the appellant: ACT Government Solicitor
Counsel for the respondent: Mr G Lunney
Solicitor for the respondent: Pamela Coward & Associates
Date of hearing: 12 February 2004
Date of judgment: 19 March 2004
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