Beare v the Adelaide Hills Council & State of SA No. Scciv-96-889

BEARE V THE ADELAIDE HILLS COUNCIL AND THE STATE OF SOUTH AUSTRALIA
[2001] SASC 240
Full Court
Coram: Perry, Lander and Bleby JJ

PERRY J. I agree with Lander J that the appeal should be dismissed, substantially for the reasons given by him.
LANDER J. This is an appeal from a decision of a judge of this Court in which he dismissed third party and fourth party proceedings. The defendant has appealed against the dismissal of the third party proceedings.
I shall identify the parties. The plaintiff, Mr Calvaresi was injured in a motor vehicle accident which occurred on 27 February 1995. The defendant, Mrs Beare was the driver of the motor vehicle with which the plaintiff collided. The third party, the Adelaide Hills Council, was joined by the defendant who claimed that it was negligent in the construction, design and maintenance of the junction at which the accident occurred. The fourth party, the State of South Australia, was joined by the third party, the Adelaide Hills Council, seeking indemnity on the basis that the junction was designed and constructed by the Highways Department of South Australia and has not been materially altered by the Council since it assumed the care and control of the junction in 1985.
The fourth party proceedings were dismissed and no appeal has been brought against that dismissal and I need say no more about those proceedings.
The plaintiff and the defendant settled the proceedings between themselves. On 20 July 1999 a consent judgment was entered for the plaintiff against the defendant for $2 million which sum was in addition to an amount of more than $400,000 already paid by the defendant to the plaintiff.
The defendant then claimed contribution from the third party in relation to that judgment sum.
The third party admitted that the defendant had properly conceded that she was negligent, that the sum appropriately reflected contributory negligence on the part of the plaintiff, and that the settlement sum was in all respects reasonable.
The issues before the trial judge in respect to the third party proceedings were whether the third party owed a duty of care to the defendant, and if so the content of the duty of care, and whether that duty of care had been breached. If the duty of care had been breached the further question to be answered was whether that breach gave rise to indemnity or contribution, and if contribution, to what extent.
At about 6:45pm on 27 February 1995, the appellant was riding his bicycle south west along Shurdington Road at Crafers. At the same time the defendant was driving her motor vehicle north west along Pottery Drive. At the junction of Shurdington Road and Pottery Drive, Crafers, the defendant’s motor vehicle came into collision with the plaintiff’s bicycle. The plaintiff was thrown from the bicycle and struck his head on the defendant’s motor vehicle and suffered very serious injuries resulting in quadriplegia.
The collision was caused by the defendant’s negligence in failing to give right of way to the plaintiff and in her failure to keep a proper lookout. The plaintiff’s damages were contributed to by the plaintiff’s failure to take reasonable care for his own safety in failing to keep a proper lookout.
The junction is somewhat unusual. Shurdington Road runs north east and south west. It forms a junction with Pottery Drive. To the south west of Pottery Drive the road is called Shurdington Road West and to the north east of Pottery Drive the road is called Shurdington Road East. The junction is almost a T-junction but not exactly so. Pottery Drive joins Shurdington Road at an angle of about 70 degrees at the eastern corner.
Shurdington Road East falls at a grading of about 10 per cent from north east to south west as the T-junction is approached and after the T-junction drops more sharply. Whilst Shurdington Road drops, Pottery Drive rises quite steeply to the junction.
Shurdington Road East turns more east than north about 75 metres north east of the T-junction. At that point it forms a Y-junction with Wonnaminta Drive which heads in a more northerly direction and, as I have said, Shurdington Road East heads in a more easterly direction. There are no give way signs on Pottery Drive, although there would be an obligation on someone travelling up Pottery Drive to give way to traffic travelling along Shurdington Road East and intending to travel across the junction down Shurdington Road West. Usually there would also be an obligation to give way to vehicles travelling from Shurdington Road West through the junction, but there is a give way sign at the junction for traffic travelling north east along Shurdington Road West. Traffic travelling on that road has to give way to traffic travelling up Pottery Road intending to turn right into Shurdington Road East.
Because Pottery Drive rises so sharply and Shurdington Road is therefore considerably above it, a driver travelling along Pottery Drive cannot see the surface of Shurdington Road until quite close. There is, however, a bi-directional hazard board which is located at the bottom of the embankment directly opposite Pottery Drive to warn those travelling along Pottery Drive that Pottery Drive forms a junction with Shurdington Road East and Shurdington Road West.
There are metal Armco safety railings on both sides of Pottery Drive leading up to the junction. Those Armco railings also extend around the corners of the junction some way into Shurdington Road. Those Armco railings help to indicate that traffic travelling along Pottery Drive is approaching an intersection.
Shurdington Road East and Shurdington Road West and Pottery Drive have vegetation on both sides of the roadways. In particular there was vegetation on the eastern corner on the non-road side of the Armco railing. The trial judge found that at the time it was reasonably dense vegetation which came up to the Armco railing. No-one quarrels with that finding.
The junction is what might be described as a low volume junction. Approximately 137 vehicles pass through the junction daily. Most of the persons using the junction are local residents and as such most are frequent users of the road and are familiar with the junction. Only one accident has ever been recorded at this junction and that is the accident involving the plaintiff and the defendant.
Council assumed responsibility for the roads and for the junction on 11 October 1985. It was the fourth party who had designed, laid out, delineated, signposted and configured the junction pursuant to s 26 of the Highways Act 1926. There have been no changes of any consequence to the junction between 1985 and the date of this accident.
The accident occurred, as I have said, as a result of the combination of the negligence and contributory negligence of the defendant and the plaintiff. It is clear enough that both parties failed to see each other in circumstances where both were able to be seen by the other. The accident was a result of poor look out on both parties’ part.
The defendant claimed to be entitled to contribution from the Council on the basis that the Council had breached a duty of care owed to the defendant to keep the junction reasonably safe.
It was claimed at trial that the Council had breached a duty of care owed to the defendant in two ways. First it had failed to cut down and control vegetation on the north eastern corner so as to allow proper lines of sight, and secondly it had failed to configure the junction appropriately by failing to place a give way sign on Pottery Drive and failing to properly mark the lines on that road.
The trial judge found that the Council owed a duty of care to the defendant in both respects. I will return to the precise duties shortly. He found that the failure at the intersection to have the vegetation on the north eastern corner cut down or removed materially contributed to the accident in the sense that that expression is used in March v Stramare (1991) 171 CLR 506. Whilst he found that the presence of the vegetation contributed to the events he found that the third party had not breached its duty of care, and was therefore not liable in respect of that duty of care. In regard to the duty of care owed in relation to signposting and road marking, he found that the absence of the sign and the road markings did not materially contribute to the events and was therefore not causative. He found, in any event, that there had not been any breach by the third party in respect of that duty of care.
On this appeal the defendant did not complain of the trial judge’s findings in relation to signposting and road marking. The defendant limited her complaints to the trial judge’s failure to find a breach of the third party’s duty of care which he had found that the third party owed in relation to vegetation. The point on appeal therefore was a very narrow one.
I should say for completeness that at trial the third party argued that if a duty of care was owed and the duty had been breached the third party’s act was one of non-feasance which was non actionable; Buckle v Bayswater Road Board (1936) 57 CLR 259. The trial judge, however, was able to decide the matter on the facts without reference to the non-feasance rule although he did doubt whether the principle applied to clearing vegetation.
He said that he would have otherwise followed a decision of the Master of the Court in Wade v Australian Railway Historical Society (SA) t/a Steamranger (1999) 204 LSJS 119 which was to the effect that the non-feasance rule had been abrogated by the Wrongs Act 1936.
He therefore dismissed the defence raised by the Council insofar as it relied on the non-feasance rule.
In due course the trial judge sat on the Full Court which considered an appeal in Wade v Australian Railway Historical Society(SA Division) t/a Steamranger (2001) 77 SASR 221. The Full Court overruled the Master’s decision insofar as it relied upon the Wrongs Act for the abrogation of the non-feasance rule.
However the non-feasance defence has since been overruled by the High Court in Brodie v Singleton Shire Council: Ghantous v Hawksbury City Council [2001] HCA 29.
It follows therefore that the trial judge’s decision that the non-feasance rule had no application was right but for the wrong reasons. In any event the non-feasance rule can be ignored on this appeal.
It was necessary for the trial judge to determine the precise duty of care that was owed by the Council to the defendant. He said at para 106:
“For present purposes I am prepared to assume that the Council was under a duty to exercise its powers so as to take reasonable care to ensure that vegetation at roadsides in its area, and in particular at corners and junctions, did not obscure lines of sight so as to make the use of the relevant part of a road or of a junction unsafe. The case was conducted on the footing that the Council had the legal power and authority to cut back the vegetation at the corner, and I will make that further assumption, although the actual source of the power was not identified.
The formulation of the duty of the Council is mine. Council, as best I can recall, did not formulate the duty of the Council with any precision. It was assumed that the Council was under a duty to take reasonable care, subject to the so-called non-feasance principle.
It may be that the relevant duty is better expressed in more specific terms. If it is, the duty that I assume for present purposes is a duty to take reasonable care, or to take reasonable measures to clear roadside vegetation to the extent necessary to provide drivers at the junction with a sufficient line of sight to enable them to use the junction with reasonable safety.”
On this appeal both the defendant and the third party were content with the duty of care as expressed by the learned trial judge. The appeal therefore proceeded on the basis of that being the duty owed by the third party to the defendant.
The trial judge found, notwithstanding that the absence of clear vision available to the parties as they approached the junction was causative in the events which occurred, the junction was reasonably safe. He found therefore that the third party had not breached the duty of care because the junction was reasonably safe. He also decided that if he was wrong about that finding and the junction was not reasonably safe, the Council was not in breach of its duty of care because it had taken reasonable measures to keep the junction safe.
The obligation therefore on this appeal is for the appellant to satisfy this Court that the learned trial judge was wrong in both respects. Unless the appellant can do that the appeal must fail. It is not enough for the appellant to satisfy this Court that the junction was not reasonably safe without also establishing that the Council had not taken reasonable measures to ensure the reasonable safety of the junction.
There is no doubt that the vegetation on the eastern corner restricted the line of sight available to both the plaintiff and the defendant. As the trial judge remarked that was common ground in this case. Indeed that was his reason for finding that the restriction on the available line of sight was causative, in the legal sense, of the accident.
It followed therefore that because the line of sight was restricted the removal of the vegetation would have improved the line of sight. That was recognised by the trial judge.
However, in my opinion, as the trial judge correctly concluded, simply because the line of sight was restricted, and could be improved by the removal of the vegetation that did not mean that the Council was in breach of the duty that it owed.
The Council was not an insurer. It had an obligation to ensure only that the junction was reasonably safe. It could have made the junction much safer by levelling all of the vegetation throughout the area, thereby giving unrestricted lines of sight to parties entering the junction from all three directions. But that is not the test. As the trial judge correctly directed himself the test was whether the line of sight available made the junction reasonably safe.
In considering that matter the trial judge posed to himself the following test:
“Whether the available line of sight was sufficient to enable the ordinary or average road user, likely on occasions to fail to take adequate care, to negotiate the junction reasonably safely.”
In my opinion, that was the correct test to be adopted. It was put by the appellant on this appeal that the learned trial judge must have assumed that all users of the junction would comply with their obligations as to road safety. I do not agree with that submission. I have no doubt that the trial judge correctly assumed that this junction might be used by persons who would drive without due care. That is clear from the test which he has posed and, in my opinion, from the reasons that followed.
The Council argued that the test which the trial judge posed for himself was too favourable to the defendant. It argued that the test ought not to have regard to the possibility that persons using the junction might be likely, on occasions, to fail to take adequate care. It was argued that the Council could assume that persons using the junction would comply with their obligation to take care. In that regard the Council relied upon Brodie v Singleton Shire Council; Ghantous v Hawksbury City Council (supra) per Gaudron, McHugh and Gummow JJ at para 160, para 163.
It is not necessary to decide whether the test posed by the trial judge was too favourable to the defendant because, in my opinion, the trial judge was right to conclude that there had not been any breach of duty by the Council, because even on that test the junction was reasonably safe.
The trial judge found that there had been no breach for three reasons. First, none of the defendant’s experts expressed an opinion in evidence that the available line of sight was not adequate for the safe use of the junction. None of them expressed an opinion that the vegetation was inconsistent with proper standards of roadside clearance. He found therefore that the defendant’s own case did not enable a finding of breach. Secondly, he accepted the evidence of Mr Harrison who was an engineer employed by the Council that the line of sight in the direction the defendant needed to look to see the plaintiff was adequate. The trial judge was impressed by Mr Harrison and his evidence and was prepared to act upon the opinion offered by Mr Harrison that the line of sight was safe and sufficient. That opinion was supported by two other experts called by the Council, Mr Meredith and Mr Smith.
Thirdly he relied upon photographs which were tendered by the defendant and which indicated that the line of sight was adequate. The trial judge relied in particular on a series of photographs admitted into evidence as D8. They were taken by the photographer standing on the white centre line, as it presently is, on Pottery Drive looking north east along Shurdington Road East. The white centre line on Pottery Drive was extended by 3.6 metres towards the prolongation of Shurdington Road East some time after this accident. D8 comprises six photographs taken along that white line. The first photograph is taken from a point 9 metres east of the commencement of the white line and each subsequent photograph taken 1 metre further west. The photographs were taken at a height of 1.15 metres above ground level. The last photograph was taken 4 metres east of the commencement of the line. The series of photographs demonstrate, in my opinion, that the line of sight was adequate. The line of sight has been improved by clearing vegetation but the junction was reasonably safe on the available line of sight.
The defendant argued that because the trial judge had found that the absence of a line of sight was causative of the plaintiff’s injuries it would follow that the junction was unsafe. In my opinion that does not follow. The obligation upon the Council was to ensure, on the duty as found by the trial judge, that the junction was reasonably safe. To that extent the Council had to ensure that the traffic moving up Pottery Drive and down Shurdington Drive East had adequate lines of sight into the other road.
In my opinion, the conclusion arrived at by the trial judge was, with respect, correct. He was entitled to rely on the absence of evidence from the defendant’s witnesses that the lines of sight were not adequate. He was equally entitled to rely upon the evidence of the Council’s witnesses that the lines of sight were adequate. He was entitled to consider the positive evidence of the Council’s experts against the very many photographs which were tendered and thereby conclude that the lines of sight were adequate. In my opinion, he was right to conclude that there had been no breach on the part of the Council, in the duty which he had posed for himself, in keeping the junction reasonably safe.
That is enough to dispose of the appeal. However, as I have said, the trial judge went onto consider the Council’s obligations in the event that he was wrong about the first matter.
It would be appropriate to adopt the same approach, even though this case is one which simply turns upon its facts.
The trial judge found that the duty imposed on the Council was to take reasonable care and reasonable measures to ensure that the junction was safe. That required the Council to erect a program for vegetation clearance in the Council area. That program had to have regard to the state of natural vegetation in the area and the maintenance of adequate lines of sight for traffic travelling throughout the Council area.
The trial judge found that there was a written policy in relation to the maintenance of roadside verges which existed at the time of the accident and which applied to this junction.
He found that the system used by the Council to ensure that the written policy was adhered to was largely informal and mainly reactive in the sense that the Council relied upon its own observations of the Council area generally. There were 38 people employed under the guidance of Mr Harrison and all of them were expected to make observations of vegetation in the Council area and report when it was necessary to cut down or trim vegetation.

There was no evidence called to establish any better practice than that employed by the Council. Mr Verco, who was called on behalf of the defendant, gave evidence of his experience as an engineer with the Highways Department. His evidence of maintenance programs for other Councils and other authorities was of programs to the same effect as that employed by the Council.
On the basis of that evidence and the absence of any other evidence the trial judge rightly concluded, in my opinion, that the Council’s approach to the clearance of roadside vegetation was reasonable and that it had taken reasonable measures.
In my opinion there was no evidence to the contrary. The defendant did not seek to prove that the practice employed by the Council was inherently flawed. It did not seek to prove that it should have employed a practice apart from the practice to which I have referred. In those circumstances it did not establish, in my opinion, that the Council had failed to take reasonable care and employ reasonable measures in its vegetation control.
In my opinion, the trial judge was also right to conclude that there had been no breach on the part of the Council even if the junction was not reasonably safe.
For those reasons, in my opinion, the appeal should be dismissed.
BLEBY J. I agree that the appeal should be dismissed for the reasons given by Lander J. I have nothing to add to those reasons.

[2001] SASC 240

18 July 2001