Bitupave Ltd t/as Boral Asphalt v Pillinger

[2015] NSWCA 298

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298

Hearing dates:

7 – 9 July 2015

Date of orders:

30 September 2015

Decision date:

30 September 2015

Before:

Ward JA at [1];
Emmett JA at [354];
Gleeson JA at [384]

Decision:

(1) Dismiss the appeal with costs.
(2) Dismiss the second respondent’s cross appeal with costs.
(3) Allow the first respondent’s cross appeal and set aside the finding made against him of contributory negligence.
(4) Order the appellant and the second respondent to pay to the first respondent the sum by which the damages awarded at first instance were reduced for his contributory negligence (and interest thereon at Court rates from the date of the judgment at first instance).
(5) Order the appellant and second respondent jointly and severally to pay the first respondent’s costs of these proceedings.
(6) Order the appellant to pay the second respondent’s costs of the appellant’s appeal in relation to the issue raised by grounds 24 and 25 of the appellant’s notice of appeal but otherwise as between the appellant and the second respondent there be no order as to costs.

Catchwords:

TORTS – negligence – motorcycle accident – where road recently resurfaced – liability – whether risk of harm reasonably foreseeable – whether risk of harm not insignificant – whether there were reasonable precautions which could have been taken – whether causation established

 

TORTS – contributory negligence - whether contributory negligence established

 

TORTS – negligence – multiple tortfeasors - apportionment – whether apportionment of liability unreasonable or plainly unjust

  CONTRACTS – general principles - construction – proper construction of public liability insurance clause

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 42, 43A, 45, 5B, 5C, 5F, 5H
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Benic v New South Wales [2010] NSWSC 1039
Blacktown City Council v Hocking [2008] NSWCA 144 Bradshaw v McEwans (1951) 217 ALR 1
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Central Darling Shire Council v Greeney [2015] NSWCA 51
Doubleday v Kelly [2005] NSWCA 151
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Garzo v Liverpool/Campbelltown Christian Science School Ltd & Anor [2012] NSWCA 151
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lu v Heinrich [2014] NSWCA 349
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Piening v Wanless [1968] HCA 7; (1968) 117 CLR 498
Pillinger v Lismore City Council [2014] NSWSC 447
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Schellenberg v Tunnell Holdings Ltd [2000] HCA 18; (2000) 200 CLR 121
Shaw v Thomas [2010] NSWCA 169
Short v Barrett [1990] NSWCA 164
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Watson v Foxman (1995) 49 NSWLR 315
Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818
Welsch v Carnival PLC t/as Carnival Australia [2014] NSWCA 430
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 4
Zanner v Zanner [2010] NSWCA 343; (2010) 79 NSWLR 702

Category:

Principal judgment

Parties:

Bitupave Ltd t/as Boral Asphalt (Appellant/Second Cross-Respondent to First Cross-Appeal/First Cross-Respondent to Second Cross-Appeal)
David Pillinger (First Respondent/First Cross Respondent to First Cross-Appeal/Second Cross-Appellant)
Lismore City Council (Second Respondent/First Cross-Appellant/Second Cross-Respondent to Second Cross-Appeal)

Representation:

Counsel:
MT McCulloch SC with R Gambi (Appellant/Second Cross-Respondent to First Cross-Appeal/First Cross-Respondent to Second Cross-Appeal)
RW Seton SC with F Austin (First Respondent/First Cross Respondent to First Cross-Appeal/Second Cross-Appellant)
RS Sheldon SC (Second Respondent/First Cross-Appellant/Second Cross-Respondent to Second Cross-Appeal)

  Solicitors:
Davidson Legal (Appellant/Second Cross-Respondent to First Cross-Appeal/First Cross-Respondent to Second Cross-Appeal)
Shanahan Tudhope Lawyers (First Respondent/First Cross Respondent to First Cross-Appeal/Second Cross-Appellant)
Mills Oakley Lawyers (Second Respondent/First Cross-Appellant/Second Cross-Respondent to Second Cross-Appeal)

File Number(s):

CA 2014/00145627

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2014] NSWSC 447

Date of Decision:

16 April 2014

Before:

Button J

File Number(s):

2009/00333088

HEADNOTE

[This Headnote is not to be read as part of the judgment]

On 22 January 2006, Mr David Pillinger was seriously injured when riding his motorcycle north of Nimbin on a gently curving stretch of road with an uphill gradient. The accident occurred shortly after three days of very heavy rain in the area and some six weeks after Lismore City Council (‘the Council’) had undertaken resurfacing works on that stretch of road. During the course of those works, Bitupave Ltd trading as Boral Asphalt (‘Boral’) carried out work as the Council’s contractor.

Mr Pillinger, through his tutor, brought proceedings in the Common Law Division of the Supreme Court claiming damages for negligence against Boral and the Council. Boral and the Council each cross-claimed against the other for indemnity and/or contribution in respect of any liability owed to Mr Pillinger.

The primary judge found that the accident was caused when Mr Pillinger lost control of his motorcycle when it came into contact with a swathe of material on the road containing roadbase and aggregate which had been left by the Council and Boral respectively, in a feathered out windrow to the east of the road and to the west of a table drain which had been blocked during the heavy rains. His Honour found that the Council and Boral were negligent, as it was foreseeable that leaving a feathered windrow in that position involved a risk that it would be washed across the roadway, reducing the available friction on the road and endangering motorcyclists.

The primary judge apportioned responsibility for the accident 60% to Boral and 40% to the Council. His Honour found that Mr Pillinger was on notice of the presence of the swathe, having travelled in the opposite (southerly) direction on that stretch of road earlier that day, and reduced his award of damages by 10% to reflect his contributory negligence.

The primary judge held that the Council was entitled to indemnity from Boral for the whole of its liability to Mr Pillinger because it was in breach of cl 10 of the contract between the Council and Boral in failing to effect a policy of public liability insurance.

Boral appealed from the whole of the decision. It challenged the factual findings made by the primary judge as to what was on the road at the time of the accident and how it came to be on the road. The Council cross-appealed, challenging the findings relating to its liability, the degree of contributory negligence and the apportionment of responsibility between it and Boral, and sought to affirm the finding of liability against Boral on a number of bases, including that it was in breach of cll D2.7(iii) and D2.7(v) of its contract with the Council. Mr Pillinger cross-appealed on the issue of contributory negligence, and sought to affirm the findings of negligence against Boral and the Council on other grounds.

Held dismissing the appeal, dismissing the second respondent’s cross-appeal and allowing the first respondent’s cross-appeal:

1. The primary judge did not err in finding that the risk of harm was one of which both Boral and the Council knew or ought to have known (Ward JA at [185]) and was not insignificant (Ward JA at [197]); and that there were reasonable precautions that could have been taken to avoid the risk of harm (Ward JA at [206], [207]) (Emmett JA and Gleeson JA agreeing at [361] and [384] respectively).

2. The primary judge did not err in finding that what was in the swathe came from the feathered out windrow of roadbase and aggregate on the east of the road (Ward JA at [224]; Emmett JA and Gleeson JA agreeing at [361] and [384] respectively).

3. The primary judge did not err in concluding that the presence of a combination of roadbase and aggregate in the swathe was a necessary condition of the harm occurring. It was not necessary for the primary judge to seek to determine the amount of each of those components in the swathe. Each of Boral and the Council had an opportunity to remove the windrow that had been created by a combination of their actions and each failed to do so. But for Boral’s failure to remove the windrow, to which it had added aggregate, the accident would not have occurred. But for the Council’s failure, when it completed the roadworks, to remove the windrow other than by feathering it out as it did, the accident would not have occurred. (Ward JA at [282]; Emmett JA and Gleeson JA agreeing at [361] and [384] respectively.)

4. In the absence of evidence as to what was visible travelling south, there was no basis for the conclusion that Mr Pillinger saw, or should, riding prudently, have seen, the swathe on his southbound trip (Ward JA at [297]). The primary judge erred in finding that there was contributory negligence on Mr Pillinger’s part (Ward JA at [298]; Emmett JA and Gleeson JA agreeing at [361] and [384] respectively).

5. The primary judge’s apportionment of responsibility as between Boral and the Council was not demonstrated to be unreasonable or plainly unjust (Ward JA at [305]; Emmett JA and Gleeson JA agreeing at [361] and [384] respectively).

6. The primary judge did not err in the construction of cl 10 (Ward JA at [332]; Emmett JA and Gleeson JA agreeing at [380] and [384] respectively). Clause 10 required Boral to put in place third party liability insurance for the benefit of the Council on which it could claim if a third party suffered injury as a consequence of the resealing works whether or not that was caused in part by its own negligence (Ward JA at [331]). Even if cl 10 be understood as referring to any liability arising out of or as a consequence of the performance by Boral of its obligations as contractor under the contract (that is, the same limitation as contained in cl 8), in the present case both Boral and the Council contributed to the loss suffered by Mr Pillinger. Thus, the Council’s liability does arise, at least partly, out of the performance by Boral of its obligations under the contract (Emmett JA at [380]).

7. The primary judge did not err in concluding that the Council could not rely on any breach of cl D2.7(iii) or cl D2.7(v) (Ward JA at [347], [348]-[349]; Emmett JA and Gleeson JA agreeing at [381]-[382] and [384] respectively).

INDEX

JUDGMENT – WARD JA		[1]
Background		[14]
Primary Judgment		[27]
Appeal proceedings		[41]
The Swathe		[43]
Mr Stevenson	[49]
Other motorcyclists	[69]
Mr Pillinger’s family members	[74]
Detective Sergeant Acton	[78]
Those involved in roadworks	[79]
Primary judge’s conclusions as to the swathe	[82]
Evidence as to the re-surfacing of the road by the Council and the spray-sealing of bitumen by Boral		[90]
Mr Matthews	[91]
Mr McDonnell	[113]
Mr McPherson	[120]
Expert evidence		[130]
Summary of principal complaints as to his Honour’s liability findings		[141]
Content and scope of duty (Grounds 1, 2 and 17 of Boral’s notice of appeal; grounds 1 and 2 of the Council’s cross-appeal)		[144]
Breach of Duty (Grounds 1, 2, 3(a),3(b),4, 5 and 6 of Boral’s notice of appeal; grounds 3-11 of the Council’s cross-appeal)		[152]
Risk of Harm	[153]
Foreseeability (Ground 3(a) of Boral’s notice of appeal; ground 4 of the Council’s cross-appeal)	[161]
“Not insignificant” (Ground 3(b) of Boral’s notice of appeal; ground 5 of the Council’s cross-appeal)	[186]
Reasonable precautions (Grounds 4, 5 and 6 Boral’s notice of appeal; grounds 9 and 10 of the Council’s cross appeal)	[198]
Adequacy of reasons (Grounds 7, 8 and 9 of Boral’s notice of appeal)		[208]
Factual Findings
Evidence of Ms Stevenson (Grounds 10 and 11 of Boral’s notice of appeal)	[217]
Other errors or deficiencies in findings – ground 12 of Boral’s notice of appeal	[225]
The Council’s complaints as to factual findings (Grounds 6, 7 and 8 of the Council’s cross-appeal)		[233]
Expert evidence (Grounds 13 and 14 of Boral’s notice of appeal)		[241]
Causation (Grounds 15, 16 and 18 of Boral’s notice of appeal; grounds 12 – 18 of the Council’s cross-appeal)		[259]
Contributory negligence (Grounds 19 - 21 of Boral’s notice of appeal; grounds 19 – 21 of the Council’s cross-appeal; grounds 1 – 3 of Mr Pillinger’s cross appeal)		[283]
Contention that there should have been a finding of a greater degree of contributory negligence	[284]
Mr Pillinger’s cross-appeal	[294]
Apportionment (Grounds 22 and 23 of Boral’s notice of appeal; grounds 22 and 23 of the Council’s cross-appeal)		[299]
Contractual claims (Grounds 24 and 25 of Boral’s notice of appeal; grounds 1 – 5 of the Council’s amended notice of contention)		[307]
The contract	[310]
Clause 10	[320]
Clause 8 (ground 5 of the Council’s amended notice of contention)	[333]
Clause D2.7 (grounds 1-4 of the Council’s amended notice of contention)	[334]
Mr Pillinger’s notice of contention		[351]
Orders		[353]
EMMETT JA		[354]
GLEESON JA		[384]
Appendix

Judgment

1. WARD JA: At about 4pm on 22 January 2006 Mr David Pillinger was seriously injured when riding his motorcycle on a rural road north of Nimbin. No other vehicle was involved in the incident; no-one witnessed it; and Mr Pillinger has no memory of it.

2. The particular stretch of road on which the accident occurred was gently curving with an uphill gradient when travelling in a northerly direction, as Mr Pillinger was. Neither side of the road had a concrete kerb and gutter. To the eastern (higher) side of the road there was a table drain and a steep embankment.

3. Mr Pillinger had travelled in a southerly direction across that section of the road before lunch that day, riding in a group of fellow motorcycle enthusiasts. His motorcycle was a powerful 1200cc machine. He was not intoxicated nor was he affected by drugs. There was no mechanical explanation for the accident.

4. In the period from 25 November to 16 December 2005 re-sealing works had been undertaken on that stretch of road by Lismore City Council (“the Council”). In the course of those works, on 17 December 2005, the Council’s contractor, Bitupave Ltd trading as Boral Asphalt (“Boral”), carried out the spray-sealing of bitumen on the re-surfaced road. The accident occurred some six weeks later, shortly after there had been three days of very heavy rain in the Lismore area.

5. Various witnesses who attended the scene of the accident shortly after it had occurred (including a police officer who noticed tyre or wheel marks “in some blue gravel” on the road) observed loose bitumen and gravel around the accident site. They gave varying descriptions of that material (which will be of relevance when considering the challenges made to the findings by the primary judge as to the material on the road at the time of the accident).

6. Prior to the accident, a local resident (Ms Stevenson) had observed that at one spot (on the side of the road slightly to the north-east of where the marks in the “gravel” indicated that Mr Pillinger had lost control of his motorcycle) the table drain had become clogged by displaced leaf litter and twigs following a severe storm (Statement 22/11/12 [7]). Shortly after the accident, when Mr Pillinger was being attended to on the road, she observed a “band of material composed of soil, sand, leaf matter and blue metal gravel lying across the road” (Statement 22/11/12 [5] - [6]). It appeared to her that this material had been washed across the road from the (“newly constructed”) drain on the eastern side of the road. (There was no suggestion that the road re-sealing works had included any works in relation to the table drain.)

7. Mr Pillinger, through his tutor, brought proceedings in the Common Law Division of the Supreme Court claiming damages for negligence against both Boral and the Council.

8. The Council cross-claimed against Boral (“the First Cross-Claim”) claiming a complete indemnity or contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act1946 (NSW) in respect of any liability it had to Mr Pillinger; an indemnity or damages for various alleged breaches by Boral of its contract with the Council, including for the failure by Boral to effect a policy of insurance covering the Council for its liabilities to third parties; and damages for negligence on the part of Boral in failing, inter alia, to remove all “windrows” of loose aggregate from the pavement and shoulders of the road. For present purposes it suffices to note that a “windrow” is a row or line of material that has been raked or swept together and may be left as a pile or “feathered out”, i.e., flattened, distributed or in some way “knocked over”.

9. Boral in turn cross-claimed against the Council (“the Second Cross-Claim”) similarly claiming an indemnity and/or contribution pursuant to the Law Reform (Miscellaneous Provisions) Act in respect of any liability Boral had to Mr Pillinger.

10. The primary judge, with the benefit of expert evidence as to the effect of loose gravel on the coefficient friction of the road surface, found that Mr Pillinger had lost control of his motorcycle as the result of a sudden loss of friction occasioned by the tyres of his motorcycle coming into contact with a swathe of material on the road ([69]). His Honour described that swathe as being made up of dirt, other organic matter such as twigs and leaves, roadbase and aggregate in the form of gravel ([43]).

11. His Honour found that each of the Council and Boral was negligent, each having left, at the conclusion of their respective roadworks, a windrow to the east (or high side) of the road which it was reasonably foreseeable would be washed across onto the road during periods of heavy rain. His Honour went on to find that Boral was liable to indemnify the Council for the whole of the damages payable by it to Mr Pillinger on the basis that Boral was in breach of a contractual obligation to insure the Council against its liability to third parties ([179]).

12. The quantum of damages, in the event of a finding of liability, had already been agreed between the parties. The primary judge reduced that amount by 10% to reflect what he found to be the contributory negligence of Mr Pillinger, namely that Mr Pillinger was on notice of the presence of the extended portion of gravel on the road, along with the swathe, having travelled along that stretch of road in the opposite direction earlier that day ([138] – [140]).

13. Boral and the Council challenge the respective liability findings made against them by his Honour and the finding as to the apportionment of liability as between them. Boral challenges the finding that the Council is entitled to an indemnity from it. In turn, the Council has filed a notice of contention seeking to affirm the finding that Boral is liable to indemnify it also by reference to the breach by Boral of certain other contractual provisions. Mr Pillinger has cross-appealed on the contributory negligence finding against him but otherwise seeks to affirm the judgment in his favour.

Background

14. It is convenient at this stage to set out a brief description of the roadworks that were carried out on the relevant section of the road.

15. First, the Council removed the pre-existing surface of the road. A layer of roadbase in the form of crushed basalt and other rocks was laid down. The new road surface was graded and compacted. Concrete and water were applied to create a hard surface.

16. Boral then carried out its part of the re-sealing works which involved: removal of loose material from the road surface, which it did using a rotary broom; the application of a new bitumen surface to the road; laying a layer of 14mm aggregate into the bitumen; compacting the aggregate with a roller; and sweeping excess aggregate from the road surface, again using a rotary broom.

17. To complete the roadworks, the Council carried out further works on the re-sealed road, including the removal of survey pegs and the installation of guide posts on the side of the road.

18. The total length of the road reconstruction was just under 4,000 square metres. Boral used 39 cubic metres of aggregate to cover the area. At the conclusion of its works a particle count was carried out by Boral on the finished road surface which involved checking the amount of loose particles at two random points. That count was satisfactory (revealing less than 20 pieces of loose aggregate in each of the two square metre areas at which the count was carried out). Boral’s employee (Mr McPherson) estimated that there was only about one cubic metre of “excess aggregate” for the whole of the job.

19. As part of the ordinary process of laying bitumen, it is expected that the aggregate (laid in this case by Boral using a “cockerill spreader”) will be further compacted into the bitumen, after the completion of the works, as and when vehicles travel over the re-sealed road. It is also the case that some aggregate may be “stripped” or lifted by car tyres and gradually “flicked” or pushed over to the side of the road. The movement to the side of the road of aggregate displaced by car tyres is thus an expected consequence of the road sealing technique used in such roadworks. (To distinguish this from aggregate pushed across the road by rotary broom I will refer to it as the “displaced vehicular aggregate” but there was no suggestion that there was any difference in the aggregate from those respective sources.)

20. The band of material across the road, of which Ms Stevenson gave evidence at the hearing, was about 450 – 500mm in width and was referred to both in the course of the hearing and in his Honour’s reasons as “the swathe”. There is no dispute that there was a swathe of some description on the road and no challenge to the finding that Mr Pillinger’s motorcycle struck the swathe. However, one of the principal matters in dispute was the composition of the swathe and how the non-organic material came to be in the swathe.

21. It was not disputed that, in the process of carrying out roadworks of the kind that were carried out in this case, a windrow may be formed on one or both sides of the road. The formation of such a windrow will ordinarily occur first when the road is swept during preparation for sealing (the windrow then being one comprised solely or mainly of roadbase) and will then be added to both before and after the spray sealing of the road (at which stage the windrow will then be a composite of both roadbase and aggregate).

22. Such a windrow may be “feathered out” (i.e., spread or distributed or “knocked off”) past the shoulder of the road or past the edge of the sealed or finished surface of the road. Excess aggregate may also be removed by shovels or by hand.

23. The Council (though this was squarely contradicted by Boral’s evidence) denied that it had left any such windrow on the eastern (higher) side of the road in this case. The significance of the presence of a windrow on the eastern side of the road goes to whether it was established by Mr Pillinger on the balance of probabilities (as his Honour ultimately found) that the swathe observed by Ms Stevenson on the road at around the time of the accident comprised material from such a windrow or whether, as posited by the defendants (largely by reference to certain evidence that emerged from Ms Stevenson in the course of cross-examination), the material in the swathe had come from the table drain and had been washed up out of the drain and over the road during the storm, together with the organic matter that had clogged the drain.

24. Another possibility (put by Boral in its written submissions at the hearing at first instance [111], [116]-[118]) was that some or all of any aggregate in the swathe was the displaced vehicular aggregate to which I have earlier referred. It is contended by Boral that the “displaced vehicular aggregate” was an equally plausible source of the aggregate in the swathe and that, if so, Mr Pillinger failed to establish his case.

25. With no disrespect to Counsel appearing at the hearing, it is evident from the transcript that there was some confusion on the part of at least some of the witnesses when asked to describe the material on the road (and on or past the shoulder of the road) by reference to photographs tendered in evidence that were taken the day after the accident. This makes the caution sounded by this Court as to the use to be made of photographs (see Blacktown City Council v Hocking [2008] NSWCA 144 at [167]; Short v Barrett [1990] NSWCA 164) even more acute.

26. Moreover, at least with respect to the lay witnesses, their use of differing terminology in the description of the non-organic material in the swathe or on the road (such as “gravel”, “aggregate”, “bitumen”, “roadbase”) cannot be assumed to have imported a technical meaning. Even taking as a general proposition (which may not necessarily always be the case) that aggregate is darker, and roadbase lighter, in colour, (see the evidence of Mr Matthews, the Council officer referred to later in these reasons but noting that Mr Matthews also said that roadbase could include some of the old bitumen), this colour differentiation is of only limited assistance in understanding the evidence of the various witnesses as to what was on the road at the relevant time, as will become apparent in due course. There were numerous versions of the colour of the different materials on the road and it must be remembered that they had been washed across the road together with soil, mud and displaced leaf litter which may also have affected the colour of the materials as observed by those at the scene.

Primary judgment

27. At [74] – [81] of his Honour’s reasons, the primary judge summarised his findings on the disputed questions of fact in the proceedings. In summary, his Honour found that:

1. when the roadworks were completed, there was a feathered windrow to the east of the stretch of road, comprising roadbase and aggregate ([74]) (earlier, at [56], his Honour had found that the roadbase came from the Council and the aggregate from Boral);

2. apart from what was subsequently in the swathe, there was not an excessive amount of aggregate on the stretch of road at that time ([75]);

3. the Council did not erect a sign that said anything such as “Caution – new work” or “Caution – loose gravel”, and there was no such sign facing in either direction on the day of the accident ([76]) (a finding not relevant to any issue now raised in the appeal proceedings);

4. as a result of the combined effect of being blocked by vegetation and very heavy rains, a table drain to the east of the stretch of road overflowed and a stream of water travelled across the road in a general south-westerly direction, carrying with it a mixture of dirt, vegetable matter, roadbase and aggregate ([77]);

5. a swathe made up of those four components was on the road at the time Mr Pillinger travelled over it, in both a southerly and northerly direction, on the day of the accident ([78]);

6. during the few days between the time that the swathe came into existence and the occurrence of the accident, no officer of the Council became aware of its existence ([79]);

7. when the tyres of Mr Pillinger’s motorcycle came into contact with the swathe, friction was markedly reduced with the result that Mr Pillinger lost control of the motorcycle; after that the motorcycle zigzagged through the gravel on the road leaving a trail and hit the roadway more than once leaving gouge marks; and Mr Pillinger suffered impacts with the road resulting in his injuries ([80]); and

8. at the time of the collision, Mr Pillinger was travelling at or slightly below the speed limit of 80km/h ([81]).

28. As to the first of those findings, his Honour found: that the Council (which it was not disputed had laid the roadbase) left a windrow comprised of roadbase on the eastern side of the road when it completed its work ([54]); that when Boral finished its work it left a windrow there that was “feathered to some degree” comprised of roadbase and aggregate ([54]); and that it was the Council who had (after the completion of the Boral works) “feathered out” the windrow ([61]).

29. His Honour found (at [62]) that the amount of gravel on the road was not unusual or excessive and was in general accordance with the particle count carried out by Boral at the conclusion of its works.

30. His Honour found that Boral owed a duty to take reasonable care in its roadworks with respect to motorcyclists who themselves were taking reasonable care with regard to their riding ([85]); and that it was in breach of that duty of care in that a reasonable person in the position of Boral would have formed a windrow to the west of the road only, in accordance with a procedure that had been described by the Council officer (who had supervised the works), Mr Matthews ([105]).

31. His Honour found that Boral’s breach was a necessary condition of the occurrence of the harm on the basis that, but for the roadbase and aggregate to the east, the swathe that resulted from the torrent of water would have been markedly different ([108]). His Honour was well satisfied that the accident was not caused by inattention on the part of Mr Pillinger or by mechanical malfunction ([109]). His Honour concluded (at [110]) that, on the balance of probabilities, the presence of the swathe on the road containing roadbase and aggregate emanating from the windrow was a necessary pre-condition of the harm suffered.

32. As to the Council, his Honour noted that it did not dispute that it had a duty to exercise reasonable care for the safety of road users who were themselves taking care for their own safety ([115]). His Honour reached the same conclusions in respect of the risk of harm and breach of duty in relation to the Council as he had in relation to Boral. (The Council does not cavil with the manner in which his Honour did so, although it does cavil with the conclusions his Honour reached as to foreseeability and breach.)

33. His Honour then addressed issues that had been raised by the Council with reference to s 42 of the Civil Liability Act2002 (NSW) and concluded (at [118]) that a reasonable person in the position of the Council would have taken steps to ensure the windrow of roadbase was not left to the high side of the road. (His Honour noted the Council’s reliance on s 45 of the Civil Liability Act but said that leaving the material was not a case of nonfeasance but a case of misfeasance [119].)

34. His Honour concluded (at [121]) that the Council was in breach of its duty of care by leaving the quantity of roadbase to the east of the road that was washed onto the road. At [122], his Honour repeated his earlier finding that the swathe contained roadbase and that it was the combined effects of the contents of the swathe that led to the loss of control by Mr Pillinger of his motorcycle. Accordingly, his Honour concluded (at [125]) that the Council was negligent.

35. His Honour was not satisfied that the Council’s failure to erect a warning sign was so unreasonable that no local council could properly consider that omission to be a reasonable failure to exercise its power ([129]) and for that reason his Honour concluded that s 43A of the Civil Liability Act protected the Council from liability in relation to the road signs and that he did not need to consider reliance by the Council on the allegation that there was an obvious risk and no duty to warn (ss 5F and 5H of the Civil Liability Act). There is no challenge to those findings.

36. His Honour next addressed the allegation of contributory negligence on the part of Mr Pillinger. His Honour noted that there was no intoxication or drugs. On the balance of probabilities, his Honour had earlier found that Mr Pillinger was travelling at or slightly below the speed limit and riding generally with due attention. Nevertheless, his Honour considered that there was a degree of contributory negligence in Mr Pillinger’s failure to negotiate a hazard which he had passed (travelling in the southerly direction before lunch) quite recently and of which he had explicit notice ([139]). His Honour assessed Mr Pillinger’s contributory negligence at 10%.

37. As to the apportionment of responsibility between Boral and the Council, his Honour considered that Boral was somewhat more culpable than the Council for three reasons: first, the Council had merely left an amount of roadbase, whereas Boral left an amount of roadbase and aggregate; second, Boral worked on the stretch during the latter stages of the work; and, third, because his Honour inferred that a company in the specialised business of sealing roads would have more expertise than the Council ([146]). His Honour apportioned responsibility for the accident as to 60% to Boral and as to 40% to the Council ([147]).

38. His Honour then turned to the first cross-claim (by the Council against Boral). The Council’s breach of contract claim was put on various bases. The only basis on which the Council succeeded was a breach of cl 10 of the contract because Boral did not effect a policy of public liability insurance covering the Council’s liabilities to the plaintiff (see [179]). Therefore his Honour held that the Council was entitled to indemnity from Boral for the whole of its liability to Mr Pillinger ([179]). In light of that conclusion, his Honour found it was not necessary to determine the second and third bases of the cross-claim (Boral’s alleged negligence and the Council’s claim for contribution or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act, respectively) ([180]).

39. As to the second cross-claim (by Boral against the Council), his Honour noted that this related to alleged negligence on the part of the Council in relation to the state of the drain and failure to inspect the road after the heavy rainfall ([181]). His Honour said that this was not pressed ([181]). Boral does not demur from this proposition.

40. His Honour ordered judgment for Mr Pillinger against Boral and the Council jointly and severally in the sum of $1.17 million; determined that the contribution as between the Council and Boral was 40/60%; entered judgment on the first cross-claim for the Council against Boral; and dismissed the second cross-claim.

Appeal proceedings

41. In this Court:

1. Boral has filed a notice of appeal from the whole of the decision on liability, joining Mr Pillinger as first respondent and the Council as second respondent.

2. The Council has cross-appealed on three issues: its liability to Mr Pillinger; the degree of contributory negligence of Mr Pillinger; and the apportionment of liability between the Council and Boral.

3. The Council has also filed an amended notice of contention in which it seeks to have order 3 (namely, entry of judgment in its favour on the first cross-claim, against Boral) affirmed on other grounds.

4. Mr Pillinger has filed a cross-appeal against Boral and the Council limited to the finding against him of contributory negligence; and

5. Mr Pillinger, by leave granted during the course of the hearing of the appeal, has filed a notice of contention seeking to affirm his Honour’s findings of negligence against Boral and the Council on other grounds (Mr Pillinger’s Notice of Contention filed in Court on 8 July 2015).

42. The particular grounds of appeal/cross-appeal and contention are reproduced in the appendix to these reasons. Before turning to those grounds I will first set out the relevant evidence going to the composition of the swathe and the source of the non-organic material in it.

The Swathe

43. Not all of the lay witnesses were at the accident site on the afternoon of the accident. In particular, Mr Pillinger’s wife and son (the latter having taken the photographs adduced in evidence of the portion of road where the swathe had been – Exhibits 7, 8 and 9) did not arrive at the accident site until the following morning, by which time it must be assumed that the road had been cleared of much or all of the swathe.

44. The Council emphasised that it cannot be assumed that it was the Council which cleared the road and I accept that no such assumption can be made on the evidence that was before his Honour (though, as I note below, Ms Stevenson herself recalled seeing workers clear the road). Nevertheless, the assumption that the road had been cleared (or largely cleared) of the swathe by the following morning may be made with some confidence (despite the evidence of Mrs Pillinger and Mr Michael Pillinger that appears to suggest the contrary) for at least two reasons.

45. First, (and bearing in mind the limitations on the use to be made of such photographs), the photographs taken the morning after the accident do not show a band of material of the kind described by Ms Stevenson though some brown discolouration in the area where the swathe is said to have been is evident. Second, Ms Stevenson herself identified the photograph which was Exhibit 7H as a picture of the road “with the band removed” and said that after the road was cleaned “you can just see the remnants of mud on the road”. Boral’s Counsel accepted in the course of oral submissions (at AT 7/7/15 15.27) that the actual swathe had “seemingly” been removed by the time the Exhibit 7 photographs were taken and the evidence to the contrary by Mrs Pillinger and her son was described by Counsel for Mr Pillinger as a conundrum that was not ever really explained.

46. As an aside, I note that there was both a police officer and a tow truck operator in attendance at the scene of the accident and that the police officer (Detective Sergeant Acton) gave evidence as to his observations of tyre marks in loose gravel and marks from which he had formed the view that Mr Pillinger’s motorcycle had ‘fishtailed’ before the crash. It is a reasonable assumption that the police officer would not have permitted a potential hazard to vehicles to remain on the road. Nevertheless, with one exception, there was no evidence as to what steps were actually taken, and when, to clear the road.

47. The exception to which I refer above is that in a statement made by her in 2012, Ms Stevenson made reference to the Council clearing the material off the road “soon” after she reported it to the Council the day after the accident ([8]). There was in evidence (Exhibit V) a copy of the Council’s record of that report, which is dated the day after Mr Pillinger’s accident, consistent with Ms Stevenson’s recollection. However, the Council’s records go on to refer to an inspection and “no further action required”, which would be consistent with the road already having been cleared by then.

48. In any event, Ms Stevenson’s observation in the witness box of the photographs she was shown (to which I have already referred) supports the conclusion that the swathe had been cleared by no later than the morning after the accident. Obviously, if the swathe had been largely removed by the time Mrs Pillinger and her son arrived at the scene, this suggests that more weight should be given to the observations of the swathe by those who were present at the scene shortly after the accident (and that little weight can be given to observations of Mr Clark, the expert on whom Boral places weight, of what the photographs do or do not show as to the composition of the swathe).

Ms Stevenson

49. As already noted, Ms Stevenson was a local resident and the only witness who had observed the swathe on the road prior to the accident. Boral and the Council place weight on her evidence on the basis that: she was independent of Mr Pillinger (being neither a family member nor a fellow motorcycle rider); she was familiar with the road; she said she had previously used aggregate of the size she had seen in the table drain on her property; and she was a retired scientist. No little weight was placed on the last of those matters. Nevertheless, it must be noted that Ms Stevenson’s area of scientific expertise was microbiology, not geology, and (with no disrespect at all to her) it cannot simply be assumed from the nature of her former profession that Ms Stevenson had any particular expertise in the estimation (some years after the event) of the size of aggregate or other rocks; nor that, as a retired microbiologist, she would necessarily be more precise than any other lay witness in her observations as to such matters.

50. Ms Stevenson had provided a short written statement dated 22 November 2012, which was admitted into evidence. The statement itself was prefaced by reference to the fact that the accident had happened “several years ago”. In it, she stated that she had travelled along the newly sealed road several times before the accident and it seemed to her to be in excellent condition ([4]); that there was a newly constructed drain on the eastern side of the road that ran the length of the newly sealed road ([6]); and that there had been a severe summer thunderstorm with exceptionally heavy rainfall in the few days before the accident and displaced “leaf litter, twigs etc had clogged the drain at one spot” ([7]). She stated that in the day or so before the accident she had travelled over a band of material on the road and had “felt a bit of a hump” as she went over it but did not think it presented a traffic hazard for her ([8]). Ms Stevenson had not noticed any effect from gravel as she drove along the road before the storm. She described the band of material as “composed of soil, sand, leaf matter and blue metal gravel” and said that it appeared as though the material had been washed across the road from the “newly constructed” drain ([6]).

51. Ms Stevenson further said (as referred to earlier) that the day after the accident she reported it and the material on the road to the Council and that soon afterwards saw workers clearing the material off the road surface and deepening the length of the drain from where the blockage and overflow of water had occurred ([9]-[10]). She also stated that she later noticed that blue metal rock had been laid in the base and lower sides of the “newly deepened” drain ([11]). (Any material that was laid in the drain after the accident could not, for obvious reasons, have formed part of the swathe; although it is possible that the same kind of blue metal rock was in the blocked drain before the accident.) The Court was not taken to any record of works by the Council to deepen the drain after the accident.

52. Ms Stevenson was cross-examined by Counsel for each of the Council and Boral. Her evidence was that it was “[o]nly in extreme times” with very heavy rain that water would run across the road when it rained in the area; and that occasionally after very heavy rain there would be rubbish left on the road where the water had run across it, sometimes leaf material, twigs or branches, and uncommonly “earth-like material”. For Mr Pillinger, it is noted that Ms Stevenson did, however, say that the area was known for its “freak events” when asked whether it was the heaviest rainfall she had seen there.

53. Asked in the witness box what she had seen on the road prior to the accident, Ms Stevenson, consistently with her 2012 statement, referred to a “band of material … composed of various entities, including; the soil, gravel, leaves, et cetera”. Asked whether the material was brown, she responded that the soil was brown and the “gravel” was charcoal. Ms Stevenson later confirmed her description of the “gravel” as “charcoal” in colour but went on to say that it was the same material as “the blue metal rock” to which she had referred in relation to the deepening of the table drain after the accident: “It is the same material, just depends on the grade when they crack it”. She could not say whether the band of material was “more soil than anything else”.

54. Ms Stevenson also said that where the material had crossed the road the drain had been blocked prior to the accident. She identified the point of the blockage as being slightly north (uphill) of a guidepost visible on the eastern side of the road in Exhibit 7H.

55. Ms Stevenson described the material that had clogged the drain before the accident as being comprised of leaf, gravel, branches, twigs and soil. She had attempted to clear the blockage with a shovel before the accident. She described the blockage as being “very neat and tight in the small area that was removed” by the Council workers after the accident when the drain was deepened.

56. When taken back to her description of the material in the drain, in her cross-examination by the Council, Ms Stevenson said that whatever was in the drain (i.e., the blocked drain) was “similar” to the material that she had observed running across the road.

57. There then followed an attempt to explore with Ms Stevenson in cross-examination the difference in the types of non-organic material present at the scene of the accident, by reference to the collection of photographs that formed Exhibit 7.

58. Ms Stevenson was shown the Exhibit 7A, photograph which is a photograph taken looking to the north of the road (hence the guideposts to which reference was there made were on the left of the road). She distinguished between the gravel that she had referred to as charcoal and the lighter coloured material running either side of the guideposts in referring to the latter as looking like “part of the road construction”. Asked whether the blue metal rock to which she had referred in her evidence was the material shown to the “right hand side” of the photograph, Ms Stevenson appeared to distinguish between the blue metal rock put along the side of the road to help stabilise it (which it is agreed was not material involved in the road reconstruction works) and “gravel”. She explained that when she had referred to seeing gravel over the roadway she was referring to “the blue metal” but not the rock that was stabilising a bank on the far side that dropped steeply into a creek. At this point his Honour noted that Ms Stevenson was pointing to a collection of larger stones in the photograph. (Ms Stevenson shortly after commented that she was not sure of the exact location where the area in the photograph was.)

59. Pausing here, by this point, what has emerged from the cross-examination is that Ms Stevenson described the “gravel” across the roadway in the swathe both as charcoal in colour and (being the same material but cut at a different grade) as blue metal rock, and that Ms Stevenson thought it was similar to the material she had seen in the table drain where it was deepened (which was after the accident). She distinguished it both from the lighter coloured material (that she thought was part of the road construction) and from the larger blue metal rocks used to stabilise the banks on the side of the road.

60. Pressed on what she had seen in the material spread across the road from the drain (i.e., the swathe), Ms Stevenson then said that it “appeared to be sandy soil with blue metal gravel in it and that gravel resembled the initial lining of the drain just after construction” (my emphasis). Ms Stevenson appears there to have been referring to the construction of the drain at a time prior to the accident, not its subsequent deepening after the accident. That seems to follow from Ms Stevenson’s description of the drain before the rain event as “It was a newly formed drain, lined with gravel, blue metal gravel”.

61. Ms Stevenson was then asked whether the blue metal gravel that the (newly formed) drain was lined with was the darker material around the guideposts to the right or the lighter material running either side of the guideposts on the right hand side of Exhibit 7A (i.e., the guideposts on the left hand side of the road looking north). Somewhat confusingly, Ms Stevenson responded as follows:

A.   This is not gravel, it’s bitumen. To the right this is – resembles what is underneath the road, the stabilising layer under the bitumen. It is not the gravel.

Q.   The stabilising material that’s what you saw in the drain?

A.   No.

Q.   Was it the stabilising material, which you saw running across the road with the soil and other material?

A.   No, I can’t say that. It was blue metal gravel each piece about (witness indicates size with hand). We have used the same material on our property. It was a smaller size of blue metal rock, cut to be on – almost a gravel.

62. The confusion in part arises because Ms Stevenson appears here to be distinguishing between gravel and bitumen and it is not clear precisely to what part of the photograph she was there referring.

63. Asked, for the purposes of the transcript, the size of the blue metal gravel to which she had referred in the above answer, Ms Stevenson said “[i]n a very rough way” that the rock entities (i.e., the blue metal rock cut to be almost a gravel that she had seen in the swathe) were “maybe an inch in size, roughly”. Asked whether it was a larger size than the pieces of blue metal shown in the darker area on the far right-hand side of the photograph, there was the following exchange:

A.   The actual bitumen?

Q.   Yes

A.   Yes, there the blue metal gravel was a size larger than the material in the bitumen.

Q.   Would you say they were roughly twice as large?

A.   Shouldn’t you be asking an engineer?

64. Asked by his Honour to answer the question as best she could, Ms Stevenson then said “Okay. At least twice”. It appears that Counsel between them then agreed that what Ms Stevenson had there been describing as bitumen was a dark area furthest to the right of the guide posts shown in Exhibit 7A, described by Counsel for Mr Pillinger as “road surface”.

65. To complete the picture, Ms Stevenson described the material put into the drain after the accident as larger than the material that she had seen in the drain before the accident. Then, when Ms Stevenson was asked whether the road surface was made up entirely of smaller sized blue metal rather than the larger size, she described the material used in the bitumen as “a standard used in bitumen, which was fairly small”.

66. From the above, it can be said that Ms Stevenson’s evidence (though conflicting in the description of the colour of the non-organic material in the swathe – charcoal v blue metal) was that the material she had seen in the drain (although there was some confusion as to whether this was before and/or after the accident, since it was linked by her both to the “newly constructed” and then “newly deepened” drain), and which was similar to the material she had seen in the swathe, was larger than the material she had seen in the bitumen and smaller than the rocks used to stabilise the banks on the side of the road and that which was used to line the drain when it was deepened after the accident. However, at least on paper (and his Honour had the advantage, which this Court obviously does not, of being able to assess how confident or otherwise Ms Stevenson appeared to be when estimating the size of the material in the swathe), it cannot be concluded that Ms Stevenson (retired microbiologist though she was) was giving a precise estimate of the size of what she had seen in the swathe. Indeed, she made it very clear (see [58] above) that she was only giving a rough estimate (notwithstanding, as emphasised by the Council and Boral in these proceedings, that she had used the same or similar material on her own property).

67. I have set out Ms Stevenson’s evidence in this respect in some detail because it is contended by the Council and Boral that his Honour erred in not accepting that evidence. Indeed Boral maintains that, if Ms Stevenson’s evidence as to the non-organic material in the swathe had been accepted it should have exculpated Boral entirely from liability to Mr Pillinger because the swathe contained no aggregate of the type used by Boral in its road re-sealing works.

68. The other evidence as to the colour of the non-organic material in the swathe can be summarised more briefly.

Other motorcyclists

69. Evidence was given by two members of the group of motorcyclists who had travelled along the road that day, Mr Humberdross and Ms Taylor (the latter being a pillion passenger on her partner’s motorcycle).

70. Mr Humberdross described the whole road as “covered in loose bitumen”, by which he referred to “the bitumen that they lay” but said that in that one particular area (presumably referring to the area around the accident site) there was “a build up of a larger amount of loose bitumen and gravel” that had accumulated in that one particular spot. He gave evidence in chief that he had seen marks in the gravel where something had moved the gravel in the centre “in a sideways motion”. He referred again to loose bitumen, when agreeing that the new work was unmistakeable because he could hear the clatter of the pebbles.

71. It was apparent in the course of his cross-examination that Mr Humberdross made a distinction between gravel and bitumen, namely that “[b]itumen is the road and gravel is anything that has been washed onto the road as well”. He described the colour of the gravel as “[m]aybe greyish, I think. Greyish brown” and the colour of the area surrounding the mark (i.e., the mark that he had observed in the middle of the built up gravel and bitumen) as “[b]lack, grey, bit of brown”.

72. In her evidence in chief, Ms Taylor described the road surface at the accident site as like “walking on marbles”. She said that she could feel the gravel or loose bits moving under her feet. She had described in her statement a pile towards the edge of the road that she said in her evidence in chief was a pile of gravel. She said that this was a “different colour to the bitumen” and “a different colour of gravel”, comparing it to the other gravel on the road where Mr Pillinger was lying. She agreed with the proposition put to her in cross-examination that the different coloured gravel was brown in colour but was unable to say if it was the same colour as the embankment on the side of the road and was unable to say whether the photograph she was there shown (Exhibit 9) depicted the place where they were on the road.

73. Unsurprisingly, it was not suggested that much assistance could be gained from the descriptions given by these witnesses as to the composition of the swathe.

Mr Pillinger’s family members

74. Mrs Pillinger, who was present when the photographs were taken by her son at the accident site the following morning, agreed in cross-examination that there was material on the road that was the same general colour as the embankment beyond the road on the high side. She described that material as dirt or soil and agreed that she had observed it to be in patches along the road. She was unable to say how many patches of dirt or soil were there and or dirt in patches along the road. Asked how many patches of blue metal there were, she responded “Well, the road was all blue metal”.

75. Mr Michael Pillinger, who had referred in his statement to a fairly thick band of gravel on the road, accepted that in Exhibit 7A two different colours of gravel were visible on the eastern or right hand side of the guidepost in that photograph: one being of the road surface and the lighter colour being what was described as the shoulder of the road. He said of the band of gravel he had observed that:

It was multi-coloured type thing, because it was like a washed type colour, so definitely it did have the black as a base and there was like a more of a blue than - it's very hard to say with a blown up photo, but that looks more as a grey type colour to the left there.

76. He appeared to refer to the loose gravel he had walked on as being “the darker colour gravel”.

77. Again, it is not surprising that little could be made of the evidence given by the family members as to the appearance of the gravel that they had described at about the accident scene, even apart from the probability that the swathe had been cleared by then.

Detective Sergeant Acton

78. Detective Sergeant Acton was the police officer who attended the scene of the accident and coordinated a rescue helicopter to make a landing. He gave evidence that he had retraced the path of the motorcycle from where it had ended up and that he got to a place where he could clearly see the marks of a wheel or tyre imprint in some “blue gravel” that was about an inch thick. He observed a zigzagging pattern in the blue metal that he considered had been made by a tyre similar to a motorcycle tyre and that it had moved the gravel in a channel type of way, dispersing the blue metal so a track could be clearly seen in the blue metal.

Those involved in roadworks

79. Evidence was given by Mr Matthews, an employee of the Council who had a supervisory role in relation to the works in question. He explained that the Council had supplied (to Boral) 14mm aggregate with a one coat seal, the purpose of the pre-coat being to take dust off the stone so that it would stick in the bitumen when applied to the road. He said that the pre-coat gave the rock a black colour before it was applied to the bitumen. When asked whether it was black with a “bluey” tinge, Mr Matthews’ response was: “No, not really, it’s actually bitumen that is in the pre-coat”.

80. Mr Matthews confirmed that the material used in the construction of the road was different from that which was used in the bitumen resealing. The road construction material was described by him as “a crashed rock” of which he said there could be various types (such as sandstone base or basalt “and other materials such as sandstone and whatnot”). Mr Matthews agreed that to the naked eye the road construction material was lighter in colour than the aggregate used in the bitumen re-sealing.

81. Shown the photograph which is Exhibit 7A, which again I note is taken looking towards the north (i.e. in the direction in which Mr Pillinger was riding) Mr Matthews identified the lighter material (described as being between “a large rock on the left” and “the dark material on the right”) as the sort of material the Council used in road reconstruction and the darker material (on the right) as the aggregate mixed with bitumen. The midpoint in that frame of reference seemed to be around a guidepost on the shoulder of the road. Mr Matthews said that there did not appear to be any (or there was very little) loose metal in any of the photographs in Exhibit 7.

Primary judge’s conclusions as to the swathe

82. His Honour referred (from [26] to [40]) to the observations of the witnesses who attended the accident site that day or the following day and noted (at [41]) the caution applicable to reliance by a judge on his or her own interpretation of photographic evidence (there referring to Short v Barrett). His Honour observed that the photographs showed a brown discolouration crossing the road at a diagonal angle ([41]). This, they clearly do.

83. What his Honour then said (at [42]) was to the effect that Ms Stevenson’s evidence must be taken into account along with the evidence of all the other witnesses (which would presumably include the evidence of those involved in the works and who described what had been done). In that context, his Honour said that he did not consider that Ms Stevenson’s evidence somehow “trumps” the other witnesses’ evidence (a card-playing analogy with which Boral and the Council here take issue).

84. His Honour said that, having regard to the fact that Ms Stevenson’s statement was made in November 2012, he did not consider that her description of the size of the items she saw on the road should be regarded as conclusive. There, I understand his Honour to be doing no more than generally acknowledging the potential effect on the accuracy of memory of a lapse in time between observation of the event and the giving of evidence as to that event (hardly a novel proposition – see Watson v Foxman (1995) 49 NSWLR 315). It is to be noted that the first reference to the size of the material in the swathe came in her cross-examination and there Ms Stevenson herself made clear that she was giving no more than a rough estimate.

82. At [43], his Honour found that the evidence established that there was a substantial amount of loose gravel on the road. (Later, at [62], his Honour attributed the amount of loose gravel on the road to the dislodgment of the aggregate in the bitumen by cars driving over the newly surfaced road. His Honour found that the amount of loose gravel on the road was not unusual or excessive and that it was in general accordance with a particle count that had been conducted by Mr McPherson.) His Honour went on, at [43], to make the finding recorded earlier as to the composition of the “brownish” swathe. His Honour made it clear that he based the finding that roadbase was part of the swathe on the evidence of Mr McPherson and Mr McDonnell, the Boral witnesses (to which I will refer shortly).

83. His Honour was not satisfied that the gravel on the road (other than what was in the swathe) had been washed from the outer eastern side of the road ([62]).

84. His Honour concluded that the drain had overflowed at the point described by Ms Stevenson, as a result of the combined effect of the volume of rainwater and the blockage of the drain by organic material at that point, and that the torrent of water carried with it brown dirt, brown roadbase and blue-grey aggregate. His Honour considered that this was the explanation for the appearance of the swathe described by the witnesses and discernible in the photographs ([63]).

85. Relevantly, his Honour did not accept that the roadbase (that had been left by the Council) stayed on the side of the road whilst all other materials moved to the southwest with the torrent of water ([64]). This (coupled with evidence by Messrs McDonnell and McPherson) was the basis for his finding as to the roadbase being included in the swathe material.

86. His Honour explained the basis for his finding (at [65]) that none of the materials in the swathe had come from within the drain on the basis that it would take an enormous amount of water pressure to cause rocks or stones to rise up and out of a drain ([65]). (Insofar as the complaint was made in oral submissions that no-one with any expertise in hydrology was engaged to determine what forces would be required within the drain in order to push water out of and then over the drain, and what forces would be required to pick up and collect pieces of material such as stone that seems to misstate his Honour’s findings.) Hence, his Honour’s conclusion that all of the material in the swathe had been to the east of the road and the west of the drain (at [65]).

Evidence as to the re-surfacing of the road by the Council and the spray-sealing of bitumen by Boral

90. I have earlier described in general terms the process which was carried out in the overall roadworks. However, it is necessary to set out in more detail some of the pertinent evidence given by Mr Matthews, and by Messrs McPherson and McDonnell, relevant to the question whether (and, if so, where) a windrow was left at the conclusion of their respective roadworks.

Mr Matthews

91. Mr Matthews, as noted above, was the employee of the Council who had performed a supervisory role in relation to the works. He had been an employee of the Council for 36 years and retired in 2010. It should be noted that his evidence was that he did not supervise the Council’s road reconstruction works on this particular job; rather, his role was to supervise the laying of the bitumen by Boral and the aggregate on top of it. He did not recall having driven through the job on the way to other jobs but he accepted he might have done.

92. In his written statement, Mr Matthews explained the process of road stabilisation (which the Council carried out before Boral undertook its resealing works) and said (at [8]) that:

The rolling process described above can create a light windrow. That windrow is then levelled out to the shoulder of the road where it is rolled and compacted. By the end of stabilising and grading, there are no windrows left.

93. Mr Matthews then described his observations of Boral’s resealing works and said (at [13]) that he had observed Boral sweeping excess material off the road surface on numerous occasions (i.e., on a number of jobs not just this one) and that:

In instances where a road has an embankment on one side, I never observed Boral sweeping the aggregate to the high side of the road unless there was a kerb and gutter.

94. In relation to this particular road, he said that he did not ever recall observing Boral sweep aggregate towards the high side ([14]). He stated (at [15]) that:

When I observed Boral sweeping a road after aggregate was sprayed, I observed they did so until a windrow formed. The windrow was then either picked up by hand or removed using shovels or brooms. It was not left in a windrow. It was feathered out past the shoulder, at least a couple of metres past the edge of the seal and on every occasion when I have seen it done the material will be swept to the downhill side of the road. (my emphasis)

95. Cross-examined by Boral’s Counsel, Mr Matthews agreed that he knew that, on rural roads such as this, what Boral did was to sweep such aggregate as was excess to requirements, after being laid with bitumen, from the high side down to the low side, adding, however, that this was “[d]epending on the road and what was on the other side”. On this particular job, he said that the aggregate “would mainly be swept to the lower side because of the gutter that was there”.

96. Mr Matthews agreed that with a road construction such as the one in question what you do is to “try to pinch a bit more road by constructing it out further and having it sealed out further” so as to reduce the level of destruction to the edge of roads caused through weather events and on occasion, especially on stabilised roads, he would ask Boral to spray out further.

97. He also agreed that, after the bitumen and aggregate was laid, part of the ordinary process of this type of re-seal was that moving traffic would be used “continually [to] impress the aggregate into the bitumen” and that a necessary consequence of that type of work was that a “small amount” of the aggregate would become dislodged by vehicle movements and pushed gradually to the other side where it could form a windrow.

98. Mr Matthews was shown Exhibit 7 and said that none of those photographs showed the presence of windrows at the time that they were taken and that they appeared to show what would be expected on a rural road such as this approximately six weeks after the bitumen re-seal had been done. As noted earlier, he said that there did not appear to be any, or that there was very little, loose metal in any of those photographs. That evidence provides very little as a comparator by which to assess the state of the road before or after the accident.

99. Mr Matthews accepted that it was the practice of the Council when it did the work “to broom [sic] any excess aggregate to the sides of the road beyond the road shoulder” so that, on rural roads, it was feathered out. He described the expression “feathered out” as meaning:

A. Well levelled out and not left in a wind row. It was spread out lightly over an area. Possibly the width of – where possible the width of the broom, which is about 2 metres wide.

100. In later cross-examination by Mr Pillinger’s Counsel, Mr Matthews agreed that the feathering process meant pushing a pile (whether aggregate or roadbase or a combination of it) further out to the side in a flattening way and that if the feathering was at about the point where the survey pegs were the material would end up getting spread out further beyond the survey pegs.

101. Mr Matthews confirmed that feathering out past the shoulder was a different thing to picking up the windrow by shovel or brooms. Mr Matthews agreed that when the Council did any reconstruction work before a re-seal was done it used graders to push and flatten out the roadbase before it was wet and rolled down and that it was the practice in such a case for the blade of the grader effectively to leave a windrow at about the point where the survey pegs (indicating the boundary of the work) were.

102. He agreed that if the Council did the laying of the aggregate (which I note was not the case here), then after the Council had “rotary broomed” the area such material was feathered out to the edge of that windrow and he volunteered at that point that “If there was any real excess [i.e., a pile of aggregate that had been laid and was excess to requirements] it was otherwise picked up by the loader again, backhoe”.

103. Mr Matthews also agreed with the proposition put by Boral’s Counsel that, in the ordinary course of events, when the work was being done whether by the Council (as it did before Boral did the full service) or after when Boral was doing the full service, there would be “small amounts of single aggregate stones that were left in this feathered-out way beyond the shoulder and towards the survey pegs” and that this was the way that work was customarily done.

104. Asked whether, to the extent that there were any windrows left, a grader would be brought along to knock over any remaining windrow that was left before the guideposts went in, Mr Matthews said “[i]f there was a grader available, yes” and, if not, “[i]t would only be a little bit around the peg and when that was pulled out, it was levelled out”, agreeing that by “a little bit around the peg” he meant no more than 5 or 10 cm (and 5 or 10 cm effectively roadbase).

105. In cross-examination by Mr Pillinger’s Counsel, Mr Matthews explained the process by which a grader would operate and said that he had never seen a grader operator grade the Council roads in such a way as to end up with windrows on both sides.

106. Mr Matthews said that survey pegs were usually put 300 to 500mm outside the stabilised area so that the grader had got an area to work up to; i.e., that the road would finish at about 300-500mm in from the survey pegs and that from that point on there would be the shoulder or verge of the road.

107. Mr Matthews was taken to the photograph that was Exhibit 7B and there identified roadbase that had not been removed from the site but said that it was not a windrow. There was the following exchange:

Q.   So, it’s certainly wrong to say, isn’t it, that any excess roadbase such as we see in this photo is always removed from the site at the end of the job?

A.   No. I’ve said that any excess and when I mean excess you’re always going to have a small wind row (my emphasis)

Q.   Yes?

A.   That the grader has still got to play with.

Q.   Yes.

A.   I said any excess material, meaning if it was still 2-foot high or 600 or 300 high that is when they’d pick it up but a grader has still got to have a small amount of material to feather out when he’s finished the job.

108. Mr Matthews clarified that evidence by explaining that the material to which he had been taken in Exhibit 7B got there by means of a grader and that it could be the remains of a windrow that had been brushed off or feathered off over the rock.

109. Mr Matthews agreed that one did not grade into an embankment or a drain on the high side of the road because that would fill up the table drain and said that:

A.   The reason it’s not done is you’ve – when you’re first constructing something like this you’ve done a table drain to run water, and if you push it over there, you’re lessoning [sic] the capacity of that to run water if you put material into it.

110. Mr Matthews accepted that on each pass with a rotary broom a windrow would be created and that on each pass that windrow would be pushed further and further to the side of the road. He said that he had seen Boral create a windrow on both sides of the road (when using a rotary broom and doing the bitumen seal). In relation to this particular job, his advice would have been (though it is not suggested that he gave any such advice) that a windrow should not be created on the side where the embankment was (for the reason in effect that if the material was pushed into the table drain it would limit the capacity of the table drain to run water). In the course of his evidence he described how the process of grading takes place which I will not recount. It was not, however, suggested by him that it was physically impossible to grade a road by only sweeping to one side.

111. Mr Matthews was later taken through the road reconstruction process again and in summary: he could not agree that when Boral first came to the job it would ordinarily find a windrow of roadbase material left by the Council but accepted that it was possible that that could happen; he said he had not really experienced it himself; he said that normally the Council would have removed any windrow roadbase material before Boral got to the job; he disagreed that the windrow would be on both sides of the road; he accepted that after Boral had used the rotary broom the first time loose material would be pushed to both edges of the road; he said that the “brooming [sic] of the road in preparation for the re-seal - or the seal would create a windrow”; he said that he would not advise Boral to “broom” the road into the gutter on the embankment side but that Boral would create a windrow all to one side, then reseal the road, sweep it again and feather that windrow out. He accepted that at least one windrow would be created when Boral used the rotary broom before the road was sprayed and that when it used the rotary broom the second time, after the aggregate was laid, this would result in a windrow of aggregate and that in this job it should have been on the non-embankment side.

112. Finally, Mr Matthews agreed that: if the material was feathered out past the shoulder on the embankment side of this road it would be feathered out into the table drain; and that the Council’s practice was not to sweep the road with a rotary broom after grading the roadbase, but that if it had done so that would itself create a windrow.

Mr McDonnell

113. Mr McDonnell was at the relevant time the contracting supervisor for Boral. He was involved in the tendering process for contracts such as this one and knew Mr Matthews from discussions with him in the latter’s role as site supervisor from the Council. Mr McDonnell referred in his statement to his experience of the Council’s methods when reconstructing a road, including that Mr Matthews would invariably require Boral to spray bitumen by at least 30cm beyond the stabilised surface of any newly constructed road ([13]).

114. Mr McDonnell said that in the course of constructing a road the Council would use a grader “which itself creates windrows on either side of the road”; that those windrows were essentially made up of roadbase; and that depending on the size of the roadbase the material could vary from fine to coarsely crushed rock ([14]). He described it as a stabilised material and said the colours may vary from white or various shades of grey to brown and dark brown in colour ([14]).

115. Mr McDonnell’s evidence in cross-examination was that for this particular job just one size of aggregate was used. He accepted that: a grader is the kind of machine that has a blade underneath it which picks up the material as the machine moves along and tends to move any excess material that it catches to one side, resulting in a windrow; invariably the Council would use a grader in preparing the roadbase and that it would create a windrow on both sides of the road (those windrows essentially being made up of roadbase); and at the start of Boral’s role the windrows created by the Council would ordinarily still be there and on both sides of the road. He agreed that Boral would then apply a rotary broom to the roadbase which in itself might add to the existing windrows, would then apply a seal, lay out aggregate and roll that into the sprayed bitumen, and would then apply a rotary broom so that the aggregate would be worked out to the side of the road and added to the existing windrow. Mr McDonnell agreed, without any qualification, that at the end of that process there would be a windrow comprising both roadbase and aggregate on both sides of the road.

116. Mr McDonnell said that Boral would generally try to push the windrows past the survey pegs as far as the broom would allow that; and agreed with the proposition that after the Council removes the survey pegs, it was the Council’s job (not Boral’s) either to remove the windrow or feather it out to the sides because Boral could not do that until the survey pegs were removed.

117. Mr McDonnell agreed that there was no rule to his knowledge that a windrow was not to be created on a side of the road where there is an embankment or because it is the high side as opposed to the low side of the road.

118. He also agreed that it would be bad practice to sweep and leave loose aggregate in a table drain that was likely to carry rain water; said that the material would certainly wash down the drain; and agreed that if the drain could not cope with the quantity of rain water it would expose the aggregate to being washed out onto the road.

119. In cross-examination by the Council, Mr McDonnell agreed that he had not actually made any specific observations on site as to how the work was being done. However, he did not agree that it was Boral’s practice to sweep aggregate, after sealing, to the downhill side of the road. Rather, he said “we would sweep both sides of the road”. He agreed that Boral would avoid sweeping aggregate into a table drain and that, to avoid so doing, the aggregate would be left in a windrow short of the table drain until the Council finished (there referring to the Council putting in guide posts). He accepted that that could lead to a situation where aggregate was left on the shoulder “if there is a shoulder” and agreed that he understood that it was Boral’s obligation to render the shoulder free of aggregate. (I interpose to note that the reference to the “shoulder” of the road in this context appears to be to an unsealed area between the finished sealed surface of the road and the table drain because otherwise the qualification “if there is a shoulder” is hard to understand.)

Mr McPherson

120. Another Boral employee who gave evidence as to the works was Mr McPherson. He was the supervisor in charge of the crew for the works in question. He explained that when he first commenced employment with Boral most of its contracts were for spray services only but that in about 2003 Boral became an all services contractor in respect of resealing and would spray the bitumen, apply the aggregate, roll the aggregate and “broom off” the excess aggregate ([7]-[8]). He had worked on both rural and city roads in his employment with Boral and had done countless jobs over his then 16 years with the company ([9]).

121. In his statement, Mr McPherson explained the role that Boral performed on the works in question. It is not necessary here to repeat that in view of the description already set out above. As noted earlier, his recollection was that he did not have to sweep off more than one cubic metre of excess aggregate for the entire job ([15]). Mr McPherson considered that there was an “average amount” of loose aggregate given the length of road that he had been working on. (It is unclear to what the comparison of “average” here relates.)

122. Mr McPherson’s role was described by him in his statement at [16] as follows:

It was my role to rotary broom [sic] any excess aggregate to the side of the road. Basically, this only slightly added to the windrow created by earlier grading and sweeping that was just in front of the survey pegs laid by [the Council]. The windrow was a combination of natural earth from the area, the roadbase laid by [the Council] and aggregate.

123. In oral evidence Mr McPherson accepted that there was no doubt that on this job he had used a rotary broom on the roadbase before it had been sealed, commencing from the middle of the road working out and that in so doing it would, depending on how much material was there, invariably produce a windrow of loose roadbase material. He agreed that it was his experience that there were invariably windrows left by the Council (after it had laid and prepared the road) and that when Boral did its first sweep of the roadbase material it would invariably, depending on how much loose material was there, be adding to the existing windrows. He also accepted that it was invariably his experience that the windrows were already on both sides of the road so that by the end of the first sweep of the roadbase surface before the spray Boral had added to the windrows on both sides of the road. He confirmed that he worked the aggregate out to both sides and that in so doing he was adding by way of aggregate to the existing windrows.

334. Therefore, while I do not read “all windrows of loose aggregate” as necessarily limited to “formed-up” windrows, I am not persuaded that the Council could, consistent with its past practice and its conduct on the present occasion, complain about the fact that Boral had left a formed up windrow on the side of the road at the conclusion of its works.

335. Accordingly, I am not persuaded that the Council has made out the grounds raised by its notice of contention.

Mr Pillinger’s notice of contention

351. Mr Pillinger’s notice of contention addresses the possibility that his Honour’s conclusions as to the reasonable precaution to be taken to avoid the risk of harm and as to breach do not amount to a finding that the windrow should have been removed. In that event it submits that his Honour ought to have found expressly that the failure to remove the windrow was a breach.

352. In light of the conclusion I have reached on the grounds of appeal and cross-appeal it is not necessary to consider the notice of contention which, with respect, seems to me little more than a matter of semantics.

Orders

353. For the above reasons I propose the following orders:

1. Dismiss the appeal with costs.

2. Dismiss the second respondent’s cross appeal with costs.

3. Allow the first respondent’s cross appeal and set aside the finding made against him of contributory negligence.

4. Order the appellant and the second respondent to pay to the first respondent the sum by which the damages awarded at first instance were reduced for his contributory negligence (and interest thereon at Court rates from the date of the judgment at first instance).

5. Order the appellant and second respondent jointly and severally to pay the first respondent’s costs of these proceedings.

6. Order the appellant to pay the second respondent’s costs of the appellant’s appeal in relation to the issue raised by grounds 24 and 25 of the appellant’s notice of appeal but otherwise as between the appellant and the second respondent there be no order as to costs.

354. EMMETT JA: This appeal is concerned with an accident suffered by the first respondent, Mr David Pillinger (Mr Pillinger), when he lost control of the motorcycle he was riding on Blue Knob Road, a public road north of Nimbin, NSW. As a result of the accident, Mr Pillinger suffered serious injuries. He sued the second respondent, Lismore City Council (the Council) and the appellant, Bitupave Ltd trading as Boral Asphalt (Boral). A judge of the Common Law Division (the primary judge) found that both Boral and the Council were negligent and that their negligence caused the accident. His Honour also found that Mr Pillinger was contributorily negligent to the extent of 10% and reduced the damages to which he would otherwise have been entitled. Judgment was entered in favour of Mr Pillinger against Boral and the Council in the sum of $1,170,000. The primary judge apportioned responsibility to Boral as to 60% and to the Council as to 40%. [1]

     1. See Pillinger v Lismore City Council [2014] NSWSC 447.

355. However, the primary judge found that Boral was in breach of a contractual obligation to the Council to take out an insurance policy in respect of the Council’s liability. Accordingly, his Honour awarded damages to the Council against Boral in the amount of the judgment entered against the Council, effectively giving the Council an indemnity in respect of its liability to Mr Pillinger.

356. Boral has now appealed from the orders made by the primary judge. The Council has also appealed by way of cross-appeal and also filed notice of contention that Boral was in breach of a different contractual obligation to it, a contention that his Honour rejected. Mr Pillinger has also cross-appealed against the finding of contributory negligence.

Liability of the Council and Boral to Mr Pillinger

357. Mr Pillinger’s accident occurred on 22 January 2006, some six weeks after the Council had carried out road works on the road in question. The road works involved the Council reconstructing the road. The final step in the reconstruction was the paving of the roadway with bitumen and spreading aggregate over the bitumen. That final stage was carried out by Boral under a contract with the Council. In the days leading up to Mr Pillinger’s accident, there was very heavy rain in the relevant area.

358. Running parallel to the roadway in question was a table drain. There was no advanced system of kerbing and guttering and the roadway sloped down to the west. The primary judge found that, after the completion of the road works by the Council and Boral, the Council and Boral left a windrow (being a row or line of material that has been raked or swept together) containing road base and aggregate on the eastern, or high side, of the roadway and that the Council “feathered” the windrow by flattening it out. [2] The flattened windrow, consisting of road base and aggregate, was to the west of the table drain. His Honour found that the table drain overflowed as a result of the combined effect of the volume of rain water and a blockage by organic material, with the result that a torrent of water crossed the roadway in a general south-westerly direction carrying with it, in a swathe across the roadway, brown dirt, brown road base, and blue-grey aggregate (the Swathe Material), all of which had been lying on the eastern side of the roadway, to the west of the table drain. [3] In essence, his Honour concluded that the Council and Boral negligently left the Swathe Material on the high side of the roadway and that Mr Pillinger’s motorcycle lost traction when he rode through the Swathe Material, causing him to lose control of the motorcycle.

     2. [2014] NSWSC 447 at [54], [61].

     3. [2014] NSWSC 447 at [63].

359. The primary judge held that a reasonable person in the position of Boral would have foreseen that its conduct in leaving the feathered windrow to the eastern side of the road and to the west of the table drain in the particular circumstances involved a risk that road base or aggregate, or both, could wash or otherwise travel across the roadway, thereby reducing the available friction on the road and endangering motorcyclists. [4] His Honour therefore concluded that a reasonable person in the position of Boral would not have left a windrow to the east in the particular circumstances of the case, namely, the fact that it was a rural roadway, the area was treed, there was a table drain to the east, the roadway sloped to the west, there was no kerb or gutter, and the area experiences heavy rain in summer. [5] Rather, his Honour held, a reasonable person in the position of Boral would have formed a windrow to the west of the roadway only. [6]

     4. [2014] NSWSC 447 at [94].

     5. [2014] NSWSC 447 at [100].

     6. [2014] NSWSC 447 at [105].

360. The primary judge held that a reasonable person in the position of the Council in this particular case would have taken steps to ensure that a windrow of road base was not left on the high side of the roadway. [7] His Honour concluded that the Council breached its duty to Mr Pillinger by leaving the quantity of road base on the eastern side, which was washed onto the road. [8] His Honour held that the presence of the road base in the Swathe Material, consisting of crushed rocks, was a material contribution to Mr Pillinger’s loss of control. [9] His Honour was therefore satisfied that the Council was negligent in leaving road base to the east of the roadway. [10]

     7. [2014] NSWSC 447 at [118].

     8. [2014] NSWSC 447 at [121].

     9. [2014] NSWSC 447 at [122].

     10. [2014] NSWSC 447 at [125].

361. I have had the advantage of reading in draft form the proposed reasons of Ward JA. I agree with her Honour, for the reasons proposed, that the primary judge did not err in the findings that he made as to the cause of Mr Pillinger’s accident and in concluding that each of the Council and Boral breached the duty of care that it owed to users of the roadway such as Mr Pillinger. I also agree with her Honour’s conclusions on the question of contributory negligence. I agree with the orders proposed by her Honour in relation to the aspects of the appeals and cross-appeals that relate to the liability of Boral and the Council to Mr Pillinger.

The Council’s Claim against Boral

362. The Council sued Boral for breach of the contract under which Boral carried out the final stage of the work on the roadway (the Contract). The Contract was made after the Council accepted a tender submitted by Boral in response to a request for tender published by the Council. Before dealing with the Council’s claims, it is necessary to say something about the relevant provisions of the Contract.

363. In June 2005, the Council published an undated Request for Tender, the closing date for which was 21 June 2005 (the Tender Request). The Tender Request invited tenders for the provision of “sprayed bituminous surfacing works to 30 June 2006” and included the following:

Section A – Preamble

Section B – Conditions of Tendering

Section C – Conditions of Contract

Section D1 – General Specifications

Section D2 – Technical Specifications

Schedules – Schedule 1 to Schedule 12

Appendices – Appendix A to Appendix D

364. Section A stated that the conditions of contract were those contained in Australian Standard 4305-1996 (AS4305) and the special conditions of contract set out in Section C. Section C specified that the conditions of contract were to be read in conjunction with AS4305. Under Section C, the Council was to appoint the successful tenderer to provide the works as specified in Section D, subject to and in accordance with the provisions of the Contract.

365. Section D1 described the scope of works as “the sprayed bituminous surfacing works for the period to 30 June 2006”. Section D2 described the works to be undertaken as follows:

the supply and spraying of various bituminous materials and associated surfaces as listed in Schedule 2, including seal design. [emphasis in original]

Schedule 2, entitled “Schedule of Prices”, specified the following items:

1.   Sweeping of Pavement

2.   Supply Heat and Spray C170 Bitumen (Quantity Measured at 15C), including Seal Design

3.   Supply and Incorporate Flux Oil (Diesel)

4.   Supply and Incorporate Cutter Oil (Power Kerosene)

5.   Supply and Incorporate Adhesion Agent

6.   Recover Longitudinal Line Marking

7.   Rolling Aggregate

8.   Load, Haul and Spread Aggregate, including removal of loose aggregate

9.   Laying and Rolling Geotextile (Geotextile to Be Supplied by Council)

10.   Site Establishment Cost to Move Labour & Equipment into Council Area

11.   Waiting Time (if applicable).

366. By letter dated 21 June 2005, Boral submitted a tender (the Tender) in response to the Tender Request. Enclosed with the letter was a signed tender for contract in the form of Schedule 1 attached to the Tender Request. The Tender, which was dated 20 June 2005, described the work under the Contract as “the provision of sprayed bituminous surfacing works for the period to June 30th, 2006”. Schedule 1 provided as follows:

[Boral hereby tenders] to undertake carry out and complete the work under the Contract briefly described above and to supply all materials and labour and everything of every kind respectively named shown described referred to or implied in the Conditions of Contract and the Specification of the work under for the sums specified in Schedule 2 and to bring the Works to practical completion within the period or by the date specified in the Annexure to the General Conditions of Contract referred to above.

The letter of 21 June 2005 also attached a completed Schedule 2 specifying a rate for each of the 11 items. Schedule 2 was also dated 20 June 2005. On 26 July 2005, the Council wrote to Boral advising that the Council had accepted the Tender as of 12 July 2005.

367. In its claim against Boral, the Council relies on cl D2.7 of Section D2, dealing with “Removal of Loose Aggregate”, which relevantly provided as follows:

i.   During the progress of work and until the risk of flying stones has passed, the Contractor shall be responsible for the removal of loose sealing aggregate form [sic; scilicet from] the pavement an [sic; scilicet and] shoulders and the sweeping unit shall not leave the site of work during this period.

ii.   On the day of sealing and where excess aggregate has accumulated, the pavement shall be swept using a vacuum broom in suction mode only.

iii.   Final sweeping of the pavement and shoulders shall be completed on the day after the incorporation of aggregate. All loose sealing aggregate on the pavement and shoulders shall be removed using a vacuum broom.

iv.   A mechanical broom shall also be maintained on-site to supplement the vacuum broom.

v.   The Contractor shall remove all windrows of loose aggregate.

vi.   The Contractor shall pay particular attention to the removal of loose sealing aggregate from intersections, medians and grassed verges.

vii.   The cost of removal of loose aggregate shall be included in the rate stated in Item 8 - Load, Haul and Spread Aggregate of Schedule 2.

viii.   Removed aggregate shall be stockpiled at a site nominated by the Superintendent.

ix.   The Contractor should note, that for quantities up to 9,999 litres in one visit, that Council shall supply a vacuum broom and operator at no charge to the Contractor. [emphasis in original]

368. AS4305 is a standard for “Minor Works Contract Conditions” and consists of 32 clauses and an annexure. The annexure contains blank spaces for the completion of details applicable to a particular contract. Section C of the Tender Request included a copy of the annexure to AS4305 in which the details relevant to any contract arising from acceptance of a tender were specified, apart from the name and address of “the Contractor”.

369. In its claim against Boral, the Council also relies on cl 10 of AS4305. Clause 10 provides:

Before the Contractor commences work under the Contract, the party named in Item 17 shall effect a public liability policy of insurance in the joint names of the Principal and the Contractor which covers the Principal, the Contractor, the Superintendent and all subcontractors employed from time to time in relation to the work under the Contract for their respective rights and interests, and covers their liabilities to third parties. The policy shall also cover the Contractor’s liability to the Principal and the Principal’s liability to the Contractor for loss of or damage to property (other than property required to be insured by Clause 9) and the death of or injury to any person (other than liability which is required by law to be insured under a workers compensation policy of insurance). Insurance effected by the Contractor shall be with an insurer and in terms both approved in writing by the Principal, which approvals shall not be unreasonably withheld.

The public liability policy of insurance shall be for an amount in respect of any one occurrence not less than the amount stated in Item 18. The policy shall be maintained until the Final Certificate is issued.

370. Item 18 in the annexure included in the Tender Request states a sum of $10 million. Item 17 specifies the “Contractor”, namely, Boral.

Liability under Clause 10

371. Clause D1.3(i) provides that AS4305 forms part of the Contract, although it is not included in the document. Clause D2.5 provides that all sprayed bituminous surfacing works will be undertaken in accordance with the “RTA NSW QA Specification R106 Sprayed Bituminous Surfacing (with Cutback Bitumen) as amended” (R106). A copy of R106 is contained in Appendix B of the Tender Request. Clause 1.1 of R106 provides that the Contractor must be responsible for the design, supply of all materials and the application of any or all of specified types of sprayed bituminous surfacing as required under the contract.

372. Clause 4 of R106 deals with “Process Control”. Clause 4.5, which deals with “Sweeping and Loose Aggregate Removal”, provides that, after final sweeping and prior to the work being opened to traffic at the pre-existing signposted speed, the number of loose aggregate particles must not exceed the values specified.

373. Clause 1.4 of R106 relevantly provides that the minimum process standards, details of the plant and equipment and methods to be used for sprayed bituminous surfacing must be as specified in Annexure R106/3. Annexure R106/3 deals with “Minimum Process Standards”. Clause A3.4 of Annexure R106/3 deals with “Condition for Commencement”. Clause A3.4.2, which deals with “Preparation of Pavement Surface”, provides as follows:

Before the application of primer, primerbinder or binder, the pavement surface must be swept by the use of a rotary road broom or suction broom to provide a uniformly clean surface. If necessary, additional sweeping must be done by hand, using stiff bass or similar brooms. Sweeping must extend at least 300 mm beyond each edge of the area to be sprayed. Where sealing work is carried out on localised areas and/or half pavement widths, any remaining loose material immediately adjacent to the swept areas must be removed from the pavement surface.

Adherent patches of foreign material must be removed from the surface of the pavement. Raised pavement markers must be masked or removed. Thermoplastic lines must be masked.

374. The Council contends that the provisions of sub-cl A3.4.2 indicate that the work carried out by the Council, for which the primary judge found the Council liable, was an integral part of the work that is the subject of the Contract. Therefore, the Council says, the policy contemplated by cl 10 of AS4305, required to be effected by Boral, must include insurance cover for the Council’s liability to Mr Pillinger.

375. Boral contends that cl 10 should be read in a limited way having regard to the limited indemnity provided by cl 8. Clause 8 of AS4305 relevantly provides as follows:

From the time when the Contractor commences work under the Contract, the Contractor shall indemnify the Principal against –

(a)   loss of or damage to property of the Principal, including existing property in or upon which the work under the Contract is being carried out. The limit to the indemnity under this Clause 8(a) shall be the amount stated in Item 14 [being $10 million]; and

(b)   claims by any person against the Principal in respect of personal injury or death or loss of or damage to property,

arising out of or as a consequence of the carrying out by the Contractor of the work under the Contract, but the Contractor’s liability to indemnify the Principal shall be reduced proportionally to the extent that the act or omission of the Principal, the Superintendent or the Principal’s other contractors, employees, consultants or agents contributed to the loss, damage, death or injury.

This Clause 8 shall not apply to –

[…]

(iv)   damage which is the unavoidable result of the construction of the Works in accordance with the Contract, and

(v)   claims in respect of the right of the Principal to have the work under the Contract carried out.

The Principal shall indemnify the Contractor in respect of damage referred to in Clause 8(iv) and claims referred to in Clause 8(v)

[emphasis added]

376. The primary judge considered that there was nothing in cl 10 to suggest that the reference to rights and interests of various parties was to be interpreted as referring to the limited indemnity in cl 8. [11] His Honour considered that Boral breached the Contract, in that it did not effect a policy of public liability insurance that covered the liabilities of the Council to Mr Pillinger. His Honour concluded that the measure of damages in light of that breach was the liability of the Council to Mr Pillinger in the tort of negligence. Therefore, his Honour held, the Council was entitled to an indemnity from Boral for the whole of its liability to Mr Pillinger. [12]

     11. [2014] NSWSC 447 at [174].

     12. [2014] NSWSC 447 at [179].

377. The primary judge accepted the Council’s contention that the treatment of cl 8 of AS4305 should be contrasted with the treatment of cl 9, which deals with the insurance of the work under the Contract. Clause 9 provides that the party named in Item 15 is to effect an insurance policy for an amount not less than the sum stated in Item 16, “covering the Contractor’s liability under Clause 7”. Clause 7 deals with “care of the work and reinstatement of damage”. The completed Annexure showed “N/A” in Items 15 and 16. The primary judge observed that, although cl 9 explicitly refers to cl 7, cl 10 does not refer explicitly to cl 8; the significance of that former reference, his Honour said, is that it argues against inferring an implicit reference in cl 10 to cl 8. [13]

     13. [2014] NSWSC 447 at [176].

376. Clause 10 must be read in the context of the whole of the Contract, of which it forms part. It is relevant that cl 10 omits the words “arising out of or as a consequence of the carrying out by the Contractor of the work under the Contract” that are included in cl 8. Moreover, cl 10 does not contain the proportional reduction contemplated by cl 8 to the extent of any contribution by the Council to, for example, the injury about which a claim by a third party is made. Further, unlike cl 8, cl 10 covers the liability of the Superintendent and of “all subcontractors employed from time to time in relation to the work under the Contract”. It follows that cl 10 necessarily has, on its terms, a broader operation than cl 8.

377. However, that does not lead to the conclusion that the liability of the Council against which an insurance policy is contemplated by cl 10 is limitless. Thus, cl 10 should not be construed or understood as imposing upon Boral, as the Contractor, an obligation to take out insurance cover for the Council, as Principal, for any liability that the Council might have for the death of or injury to any person. I do not consider that cl 10 contemplates that Boral should insure against liability incurred by the Council to which liability Boral made no contribution whatsoever, such as where, for example, the Council had negligently designed the road works and a third party consequently suffered injury. However, that is not the present case because the primary judge found that both Boral and the Council contributed to the injury suffered by Mr Pillinger.

378. Although I initially had some reservations, I consider, on balance, that the present facts fall within the scope of cl 10. That is particularly so in the context of a contract that contemplated the involvement of both Boral and the Council in the completion of the works provided for in that contract. Even if cl 10 be understood as referring to any liability arising out of or as a consequence of the performance by Boral of its obligations as Contractor under the Contract (that is, the same limitation as contained in cl 8), in the present case both Boral and the Council contributed to the loss suffered by Mr Pillinger. Thus, the Council’s liability does arise, at least partly, out of the performance by Boral of its obligations under the Contract. I agree with Ward JA that the primary judge did not err in his conclusion as to the effect of cl 10. I agree with the orders proposed by her Honour in relation to Boral’s appeal from the orders made in respect of the Council’s cross-claim against it.

Liability under cl D2.7

381. The Council submitted to the primary judge that Boral did not comply with cl D2.7 since, as his Honour found, there was road base and aggregate to the east of the roadway. The Council placed particular reliance on cl D2.7(iii). The Council contended that, if Mr Pillinger succeeded against the Council, that was because there was loose sealing aggregate on the pavement and shoulders because Boral had failed to use a vacuum broom in accordance with that clause. His Honour found that there was no dispute that the Council had never provided a vacuum broom as required in clause D2.7(ix). His Honour therefore found that the Council could not rely on an agreement on the part of Boral that it would use a vacuum broom to be supplied by the Council in circumstances where the Council did not provide that very item. [14] I agree with Ward JA that there was no error in that conclusion.

     14. [2014] NSWSC 447 at [152].

382. The Council also contends that Boral failed to perform the obligation imposed by cl D2.7(v) to remove all windrows of loose aggregate. Boral’s response is that the liability of the Council, on the basis of the findings made by the primary judge, is not because of the presence of windrows of loose aggregate. I agree with the conclusion reached by Ward JA in relation to cl D2.7(v).

Conclusion on the Council’s Claim against Boral

383. I agree with the orders proposed by Ward JA.

384. GLEESON JA: I agree with Ward JA.

**********

Appendix

Boral’s Notice of Appeal

In Boral’s notice of appeal it is contended that his Honour:

1. erred in finding that Boral breached any relevant duty of care owed to Mr Pillinger;

2. erred in failing adequately or at all to consider the matters arising under ss 5B and 5C of the Civil Liability Act, 2002 (NSW);

3. erred in finding;

1. that the risk of harm was foreseeable to Boral; and

2. that the stated risk of harm was not insignificant;

4. erred in failing to find what precautions a reasonable person in the position of Boral would have taken;

5. erred in failing to find how or why any such precautions as he found Boral ought to have taken could have been taken in the circumstances of the case;

6. failed properly to consider the matters required pursuant to s 5B(2) of the Civil Liability Act, 2002 (NSW); in particular the probability that harm would occur if precautions were not taken, and the burden of taking those precautions;

7. failed to provide sufficient reasons for any of the liability findings made against Boral;

8. in making findings against Boral, used either impermissible hindsight reasoning or speculation or both;

9. did not have a basis in the evidence, or alternatively insufficient evidence, upon which to make a finding that the swathe across the road contained aggregate from Boral’s resealing works rather than aggregate that found its way to the side of the road through the ordinary movement of traffic (for which his Honour expressly found Boral not liable);

10. erred in failing to find that the evidence of Ms Stevenson was in all the circumstances the most objective and, therefore, reliable evidence;

11. erred in failing to accord sufficient weight to the evidence of Ms Stevenson;

12. should have found that, to the extent that the swathe contained aggregate, it could not be said that the aggregate emanated from work carried out by Boral;

13. impermissibly used his own opinions to reach conclusions about matters which required expert evidence relating to matters concerning road building and drainage of roads in rural New South Wales;

14. erred in ignoring or otherwise not dealing with the evidence of the experts, particularly Mr Jackson Clark, relating to the road building aspects of the case;

15. erred in his finding as to causation;

16. erred in failing to find that there were several other unrelated, but equally probable, causes of Mr Pillinger’s injury;

17. erred in failing to find that Mr Pillinger had failed by evidence to prove each of the essential elements of is pleaded cause of action;

18. erred in finding that any breach of duty by Boral was a necessary condition of the occurrence of harm to Mr Pillinger and that it was appropriate for the scope of Boral’s liability, as found to exist, to extend to the harm suffered by him, as required by s 5D of the Civil Liability Act, 2002 (NSW);

19. erred in his finding of the amount of contributory negligence;

20. should have found that Mr Pillinger was travelling at an excessive speed and in excess of 80kp/h based on the expert evidence;

21. erred in ignoring the expert evidence as to the probable speed of Mr Pillinger’s motorcycle at the time he lost control of it;

22. erred in apportioning liability as against Boral at 60%;

23. failed to give proper reasons as to his finding in respect of the apportionment found in the case;

24. in the interpretation of the insurance clause (clause 10) of the contract; and

25. erred in finding that Boral breached that clause with respect to any obligation to (a) take out public liability insurance, and (b) that the clause indemnified the Council with respect to its own negligence to Mr Pillinger.

The Council’s Cross-Appeal

The Council’s cross-appeal raises the following grounds.

Duty

1. The primary judge erred in identifying the nature and scope of the duty of care owed by the Council to Mr Pillinger in the circumstances of this case.

2. In purporting to identify the nature and scope of the duty of care owed by the Council to Mr Pillinger, the primary judge failed to take into account:

1. the nature of the contractual relationship and allocation of work as between the Council and Boral;

2. the range of activities, duties and responsibilities of the Council as a public authority; and

3. the matters in s 42(a)-(c) of the Civil Liability Act 2002.

Breach

(3)   The primary judge erred in finding that the Council was in breach of a duty of care owed to Mr Pillinger.

(4) The primary judge erred in making no finding, or providing no reasons for any finding, as to whether the relevant risk of harm identified in [91] of the reasons for judgment below was “foreseeable” to the Council for the purposes of s 5B(1)(a) of the Civil Liability Act 2002.

(5) The primary judge erred in making no finding, or providing no reasons for any finding, as to whether the relevant risk of harm identified in [91] of the reasons for judgment below was “not insignificant” from the perspective of the Council for the purposes of s 5B(1)(b) of the Civil Liability Act 2002.

(6)   The primary judge erred in finding that when the Council’s completed preparation of the roadbase, there was on the eastern side of the road a windrow comprised of roadbase.

(7)   Alternatively, the primary judge erred in finding that when the Council completed preparation of the roadbase, there was on the eastern side of the road an excess of material comprised of roadbase.

(8)   The primary judge erred in, and provided no adequate reasons for, rejecting the evidence of Mr Matthews as to how the Council conducted its part of the road works.

(9)   The primary judge erred in failing to identify what precaution or precautions, in all the circumstances, a reasonable person on the Council’s position owing the duty of care owed by the Council to Mr Pillinger, and having regard to the contractual relationship and the allocation of work between the Council and Boral, would have done to:

(a)   “ensure that [after its works] there was only one large windrow to the western side of the road” (see [116] of reasons for judgment); or

(b)   “ensure that a windrow of roadbase was not left to the high side of the road” (see [118] of reasons for judgment),

for the purposes of s 5B(1)(c).

(10) The primary judge erred in failing to consider, in respect of the precaution or precautions in [9] above, the matters required under ss 5B(2)(a)-(c), 5C(a) and 42(a)-(c) of the Civil Liability Act 2002.

(11)   The primary judge finding that the Council breached its duty of care to Mr Pillinger is not consistent with the primary judge’s findings at [160]-[162] of the reasons for judgment.

Causation

(12) The primary judge erred in finding that any breach of duty by the Council was a necessary condition of Mr Pillinger’s accident, for the purposes of s 5D(1)(a) of the Civil Liability Act 2002.

(13)   The Primary judge erred in, and gave no adequate reasons for, implicitly finding that had the Council undertaken the manoeuvre described in [103] of the reasons for judgment during the laying of roadbase, no roadbase would have remained on the eastern side of the road.

(14)   The primary judge erred in finding that at the completion of all the road works by the Council and Boral, any windrow or material on the eastern side of the road comprised roadbase left by the Council.

(15)   The primary judge erred in finding that at the time of Mr Pillinger’s accident there was a substantial amount of loose gravel on the road.

(16)   The primary judge erred in, and provided no adequate reasons for, rejecting the evidence of Ms Stevenson as to the condition of the road at the time the accident or in the time between the completion of work and the accident.

(17)   The primary judge did not have any basis in the evidence, or a sufficient basis, to find that a swathe across the road contained roadbase left by the Council transported by the process set out in [62]-[63] of the reasons for judgment, in that:

(a)   the primary judge did not apply expert evidence before him;

(b)   the primary judge did not identify what expert evidence he applied;

(c)   if expert evidence was rejected, the primary judge did not provide any reasons as to why;

(d)   the primary judge did not identify what interferences he drew, or from what evidence;

(e)   the primary judge used impermissible hindsight reasoning and speculation;

(f)   in place of expert evidence, the primary judge impermissibly used his own opinions about matters concerning road building and drainage expertise; and

(g)   the primary judge made no findings as to the impact on any roadbase left by the Council of subsequent road work conducted by Boral.

(18)   The primary judge’s finding as to the content of the swathe across the road is inconsistent with the primary judge’s findings at [61] and [160]-[162] of the reasons for judgment.

Contributory Negligence

(19)   The primary judge erred in his finding as to the extent of contributory negligence of Mr Pillinger.

(20)   The primary judge erred in finding that Mr Pillinger was travelling at a speed of 80km/h or less.

(21)   The primary judge erred in rejecting, and failing to provide adequate reasons for rejecting, expert evidence as to the probable speed of Mr Pillinger’s motorcycle at the time of the accident.

Apportionment

(22)   The primary judge erred in apportioning liability as against Boral at 40%.

(23)   In assessing 40% liability the primary judge failed to take into account, or to take into account adequately:

(a)   the contractual relationship between the Council and Boral;

(b)   the allocation of the road works as between the Council and Boral;

(c)   the sequence in which the road works were conducted; and

(d)   the different nature and scope of the duty of care owed to Mr Pillinger by each of the Council and Boral.

Council’s Notice of Contention

The Council in its Amended Notice of Contention seeks to affirm the finding of Boral’s liability on the following grounds:

(1)   The primary judge erred in failing to find that Boral breached clause D 2.7(iii) of the contract between Boral and the Council.

(2)   The primary judge erred in construing the proper meaning of clause D 2.7(iii) in that:

(a)   the primary judge misapplied the significance (if any) of the finding that the Council did not supply a vacuum broom to Boral; and

(b)   the primary judge incorrectly construed clause D 2.7(iii) as applying only to windrows close to the edge of the road paving but still within it.

(3)   The primary judge erred in construing clause D 2.7(v) in that:

(a)   the primary judge incorrectly construed clause D 2.7(v) as not requiring Boral to remove all aggregate; and

(b)   the primary judge’s construction of clause D 2.7(v) is inconsistent with his findings at [56], [74], [97], [99] and [110] of the reasons for judgment.

(4)   The primary judge erred in finding that, despite Boral’s breach of clause D 2.7(v), the breach was not causative of loss and damage to the Council.

(5)   The primary judge erred in failing to find that pursuant to clause 8 of the contract between Boral and the Council, Boral was liable to indemnify the Council in full.

Mr Pillinger’s Cross-Appeal

(1)   His Honour erred in finding the cross appellant guilty of contributory negligence.

(2)   His Honour should have found the plaintiff was not guilty of contributory negligence.

(3)   There was no evidence to ground a finding of contributory negligence.

Mr Pillinger’s Notice of Contention

(1)   His Honour erred by not finding that the Council was negligent in not removing the windrow material from the high side of the road after Boral had completed its work.

(2)   His Honour erred by not finding that Boral was negligent in not removing the windrow material from the high side of the road at the completion of its work.

Endnotes

Decision last updated: 30 September 2015