Browning v Bitupave Limited - [2008] NSWSC 19

No judgment structure available for this case.

CITATION: Browning v Bitupave Limited [2008] NSWSC 19

HEARING DATE(S): 20 - 28 August 2007

JUDGMENT DATE :
31 January 2008

JUDGMENT OF: Harrison J

DECISION: 1. Verdict for the plaintiff against the first defendant for $2,140,000 (i.e. $2,400,000 less 15% for contributory negligence).
2. Order the first defendant to pay the plaintiff's costs.
3. Judgment for the second defendant on the plaintiff's claim.
4. Dismiss the first cross-claim with costs on an indemnity basis.
5. Judgment for the second cross-claimant on the second cross-claim with costs on an indemnity basis.
6. Declare that the third cross-claimant is entitled to be indemnified by Boral Insurance Pty Limited in respect of all or any costs incurred or thrown away by the third cross-claimant in its defence of the plaintiff's claim and the first cross-claim and in its prosecution of the second cross-claim.
7. Order the third cross-defendant to pay the third cross-claimant's costs of the third cross-claim on an indemnity basis.

CATCHWORDS: NEGLIGENCE – motor vehicle accident – collision between sedan and semitrailer – plaintiff’s sedan crosses onto wrong side of road at site of new roadwork – plaintiff loses control on gravel – road scheduled to be swept on day of accident - whether accident caused by fault of council or its contractor in placing or failing to remove excess gravel – adequacy of precautions and warning signs - CONTRIBUTORY NEGLIGENCE – speed limit of 40km/h – plaintiff travelling in excess of 60km/h immediately prior to loss of control – plaintiff 15% at fault - EVIDENCE – photographs taken at scene of accident – question of whether photographs depict presence of excess gravel or windrows – differing lay and expert opinions – extent to which court may interpret photographs when disagreement exists - CONTRACT – indemnity – obligation upon contractor to indemnify council secured by insurance – whether contractor assumed responsibility for liability of council to plaintiff even if caused by fault of council – council not at fault – issue discussed but unnecessary to decide - INSURANCE – Insurance Contracts Act s 48 – contractual obligation on contactor to effect insurance – whether council an assured within terms of policy

LEGISLATION CITED: Civil Liability Act 2002
Insurance Contracts Act 2004
Law Reform (Miscellaneous Provisions) Act 1946
Roads Act 1993

CATEGORY: Principal judgment

CASES CITED: Davis v Commissioner for Main Roads (1967-1968) 117 CLR 529
Jones v Dunkel (1959) 101 CLR 298
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200
Lipman Pty Ltd v McGregor & Ors [2004] NSWCA 6
National Vulcan Engineering Insurance Group Ltd v Pentax Pty Ltd [2004] NSWCA 218
Short & Anor v Barrett (New South Wales Court of Appeal, 5 October 1990, unreported)
State of NSW v Tempo Services Ltd [2004] NSWCA 4
Stillwell Trucks v McKay [2002] NSWCCA 292
Valkonen & Anor v Jennings Constructions Limited & Ors (1995) 184 LSJS 87

PARTIES: Annette Trudie Browning (Plaintiff)
Bitupave Limited t/as Boral Asphalt (First Defendant)
Cessnock City Council (Second Defendant)
Boral Insurance Pty Limited (Third Cross Defendant)

FILE NUMBER(S): SC 20137 of 2005

COUNSEL: P J Doherty SC with P Biggins (Plaintiff)
J E Maconachie QC with D Mallon (First Defendant and Third Cross Defendant)
R Sheldon (Second Defendant)

SOLICITORS: Whitelaw McDonald (Plaintiff)
Griffin Hilditch Lawyers (First Defendant and Third Cross Defendant)
Phillips Fox (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Harrison J

31 January 2008

20137 of 2005 Annette Trudie Browning v Bitupave Limited t/as Boral Asphalt and Cessnock City Council
JUDGMENT

Introduction

1 At approximately seven o'clock on the morning of 11 May 2002 the plaintiff was driving her Ford Festiva motor vehicle in a westerly direction along the Lovedale Road near Keinbah in the Hunter Valley when she crossed onto the wrong side of the road and collided with a semitrailer travelling in the opposite direction. She was severely injured. The collision occurred at the site of road works that were then being carried out on the road by the first defendant pursuant to a contract with the second defendant.

2 The plaintiff sued the defendants in negligence claiming damages for her injuries. Damages are agreed in the sum of $2.4 million plus costs. The defendants’ liability remains in issue. Contributory negligence has been alleged. There are cross-claims between the defendants as well.

3 The plaintiff has no recollection of the accident or any relevant events of that morning. Mr Bailey, the driver of the semitrailer, was the only eyewitness to what occurred. There was no suggestion that Mr Bailey was at fault in any way. His evidence, therefore, became critical to the task of ascertaining precisely what occurred.

The accident

4 On the morning of the accident Mr John Bailey was on his way back from Adelaide. He was driving a Scania prime mover and trailer with a gross weight of approximately 41 tonnes. He was driving in an easterly direction along the Lovedale Road. He came upon road works. Two vehicles passed him travelling in a westerly direction. He estimated that these vehicles were travelling at approximately 70km/h. When they came towards him he could see "all the stones flying off their cars" and bouncing off the truck.

5 When he reached the road works he slowed down to about 40km/h and then just let the truck run along at approximately 45 to 50km/h. Mr Bailey said that he was "positive" that his speed was not a little higher than that. When the two cars went past him he slowed down to 40km/h. When those cars had gone he saw coming towards him what turned out to be the plaintiff driving onto the eastern end of the road works. He said he was approximately 100m from the commencement of the road works at the eastern end when he first saw her car, although as it will emerge, this is probably an underestimate. Compared to the speed of the other two cars the plaintiff was going slower. Mr Bailey noticed this because he was watching for the rocks flying again but there weren’t any. His evidence about this was as follows:

6 Mr Bailey then described the movement of the plaintiff’s vehicle in the following way:

"It just sort of come on steady and then the right-hand wheel of the door was sort of in the - there's like wheel tracks in the gravel where the cars had gone through and it looked like the left one tried to drop into the wheel track cause the car sort of moved to the left a bit and then it just turned in front of me."

7 There was a collision between the prime mover and the plaintiff's vehicle. Mr Bailey said that that took just seconds to happen. He said, "it was very quick".

8 When asked what he noticed about the road Mr Bailey said:

"Oh, there was gravel piled up on the road. Where the wheel tracks were, there was a pile in the middle of it and either side of the wheel tracks and the same on the other side."

9 Mr Bailey said that he could see the gravel in the middle and on the sides and he saw it when he got out of the truck. He said, "when the car was coming towards me I could see the wheel tracks and the gravel around it".

10 Mr Bailey was cross-examined upon his observations of the first movement of the plaintiff’s vehicle. In exhibit Y, an extract from a police notebook written at the scene of the accident, Mr Bailey is recorded as having said, "I saw this vehicle turn to its right a bit ". Confronted with that version Mr Bailey said, "Yeah, well it was its left, it went to its left, it was my right". He later confirmed that the plaintiff’s vehicle "veered to the left and then back to the right". The statement given to police went on to say, "and next minute I knew the vehicle slid across and collided with the front of my truck". The notebook also recorded him saying, "I saw that at this time the vehicle was sideways with its left side towards me. It had slid over to my side of the road".

11 Under further cross-examination Mr Bailey described the movement of the plaintiff’s vehicle as follows:

"Yeah, it was a turn to my right, it veered, like went to the left a little bit, then slid around to the right."

He went on to say that the plaintiff’s vehicle "turned sideways on its own side" and then "came over to my side". He immediately applied the brakes and the semitrailer stopped nearly in its own length. The semitrailer left skid marks in the eastbound lane approximately 40m long. Mr Bailey said that his truck "didn't stop like it should have because it just rolled on top of the stones".

12 Finally, Mr Bailey was taken back to his statement to the police (exhibit Y) and cross-examined upon it in the following terms:

"Q. I ask that he be shown it again, your Honour. (Shown.) Read as much as that as you need to, please, Mr Bailey, but I want to suggest this to you: There is not one word in that statement, is there, about piles of aggregate?
A. There is a thing in here about the loose surface, yes.

Q. There is not one word in there, is there, about piles of aggregate?
A. Not in them words, no.

Q. And you did not, I suggest to you, tell the police that you had seen at any time piles of aggregate?
A. Not to my recollection. The police were there; they seen them, yeah.

13 Mr Bailey was also cross-examined about exhibit B1, one of several photographs taken at the scene. The following passage of transcript is relevant:

"Q. Do you agree that there is no accumulation of aggregate at the front of the tyres on your trailer?
A. Yeah, that's rolled over the top of it.

Q. Rolled over the top, did it?
A. Yeah, sliding on top of the gravel.

Q. There is no gravel on the outside of these wheels, is there?
A. There's gravel all over the road.

14 Following the plaintiff's accident Mr Bailey made two formal statements. The second in time was dated 4 February 2004 and became exhibit PX1. For presently relevant purposes it contained the following paragraph:

"As soon as the Festiva travelled on to the new road surface the front nearside wheel appeared to dig in and pull to the left where there was excess gravel on the fringe of the roadway. The Festiva went into a complete spin and travelled across the road until the rear left hand side collided with the front offside bull bar of my truck. The Festiva then cannoned along the bull bar before coming to rest in a ditch on the incorrect side of the road."

15 An earlier statement dated 5 March 2003 became exhibit PX2. It contained the following paragraphs:

"As I travelled along, two cars went past me heading in the opposite direction, and I noticed both of those cars throwing up lots of gravel as they went past. I was only doing about 40km/h because of the road conditions.

16 Exhibit L is another extract from the notebook of the policeman who attended the scene on the day of the accident. On page 81 of the notebook there appears the entry "loose bitumen, light traffic".

17 Exhibit P is an extract from a Patient Health Care Record prepared by the Ambulance Service of New South Wales. It included an entry that said, "Truck driver states [patient] lost control on new section of road and slid sideways into front of his truck".

18 Exhibit V is an extract from a New South Wales police service COPS report. It contains the following description:

"About 7am on Saturday the 11th of May 2002 [the plaintiff] was travelling in an easterly direction along Lovedale Road, Cessnock at a stated speed of approximately 50 km/h.

About this time [Mr Bailey's vehicle] has come to a point on the roadway where road works were being conducted and the dry bitumen has turned to loose bitumen roadway. Approximately 1km from Majors Lane, Keinbah.

19 In addition to the crucial evidence of Mr Bailey, all parties relied upon a series of photographs taken at the scene on the day of the accident. Reference to these photographs will be made later in these reasons. They also relied upon expert evidence. This is also referred to below in more detail.

The plaintiff’s case

20 Before turning to that material, however, it is important to understand the case pleaded by the plaintiff against each of the defendants. It is agreed that the first defendant carried out the physical work of resurfacing Lovedale Road at the place where the plaintiff’s vehicle collided with Mr Bailey’s semitrailer and that it did so pursuant to a contract with the second defendant. The plaintiff alleged that each defendant owed her a duty to take reasonable care to see that the road works carried out did not expose her to an unnecessary risk of injury.

21 It was in these circumstances that the plaintiff complained that the first defendant failed to devise, implement or maintain a system whereby excess gravel was not placed upon, or was removed from, the roadway after resurfacing, and that it placed gravel of such a type and quantity upon the road that a build up of gravel occurred between and alongside tyre tracks. There were further allegations that the first defendant failed to sweep loose gravel from the surface of the roadway prior to leaving the site on the afternoon of Friday 10 May 2002 and that before doing so it had failed properly and safely to roll in and embed the gravel that had been spread. The plaintiff also alleged that the first defendant failed to comply with what were said to be the relevant road resurfacing standards. It will be necessary to refer to these in detail as well in due course.

22 The plaintiff alleged against the second defendant that it also failed to remove loose gravel from the road and in particular that it failed to order a sweeper to come in on the afternoon of 10 May 2002. The plaintiff alleged, further, that the second defendant failed to instigate road safety measures such as lane closing prior to the gravel being fully embedded. The plaintiff relied generally upon the terms of the particulars of negligence pleaded against the first defendant.

Spray sealing operations in general

23 It is not in dispute that the plaintiff’s accident occurred when her vehicle went out of control on new roadwork within approximately 18 hours of the end of activities on the previous day. It is important, therefore, at an early stage to understand the nature of that work and precisely what it involved.

24 Paul Hillier gave evidence about this. Spray sealing is a commonly utilised highway surfacing technique most typically adopted for maintenance purposes. It is a relatively low-cost technique when compared to other surfacing methods and types and is generally undertaken to remedy surface defects that are not structural in nature, sealing the road surface against the ingress of moisture, and in many cases, restoring the skid resistance of the original road pavement. In its simplest form, spray sealing involves spraying the road surface with a controlled application of binder (usually bitumen, a cutback bitumen or bitumen emulsion) followed by the controlled application of crushed rock chippings. The dressing is then rolled (normally with a pneumatic tyred roller), so that the chippings become pressed into the binder to hold them in place and partially embedded into the existing original road surface.

25 A controlled excess of aggregate chippings is typically laid as not all the chippings become embedded or successfully adhere to the road surface. As a result some aggregate becomes dislodged by passing traffic in the early life of the new surface. Any loose aggregate chippings that have not embedded can ultimately present a low traction risk to road users, can damage car paintwork, and if present in significant quantities, may even adversely affect the integrity of the new seal during early trafficking. It is therefore necessary to complement the rolling operation with post-sweeping operations to remove any loose material. The latter is typically undertaken using a mechanical or suction sweeper, with suction sweepers being favoured in practice so that the mosaic is not adversely affected by this operation.

26 Recently laid spray seal is particularly vulnerable to early traffic. Because the dislodgement of aggregate chippings is largely predictable and expected and can become a risk to road users, advisory speed limits are usually imposed for some time at the site to seek to ensure significantly lower traffic speeds. It is also well recognised that low speed traffic is an excellent compactor of surface dressing.

27 There are a number of different spray seal techniques, or effectively variations on the same theme. These range from the most common, single spray seal through to multilayered dressings. The spray seal operation at Lovedale Road in May 2002 was a type known as double/double seal. This technique involves the application of two layers of chippings and two applications of binder. The second layer of binder is placed between the layers of chippings. The size of the second layer of chippings is nominally stated as half that of the nominal size of the first layer. For example, if a 14mm nominal size aggregate is used for the first layer, then a 7mm nominal size aggregate is adopted for the second. Local variation in the aggregate size adopted for the second application of aggregate can occur.

28 Double/double seals are particularly suitable for laying on existing road surfaces that are binder lean and it produces a robust treatment with an expected life of between 8 and 15 years. It has very good waterproofing qualities. Double/double seals can also provide some traffic noise reduction benefits. Despite their relatively low cost per square metre of coverage, spray seals are no different to other surfacing types in the fact that they must be comprehensively designed. Each design should also be site-specific. Design and operational guidance for spray sealing is contained within the RTA Sprayed Sealing Guide.

The spray sealing operations at Lovedale Road

29 The second defendant issued a call for tenders in respect of widening and reconstruction works, which included resurfacing, at Lovedale Road, with works to be completed "by late May 2002". The works were commissioned as part of the second defendant's "Roads to Recovery" funded program. The relevant construction documentation for the works was prepared for the second defendant by engineering consultants Sinclair Knight Merz. The provisional schedule of works indicates that a gravel sub-base course, base course and an overlay were to be provided prior to the spray seal being placed. The area of spray seal is noted as 5500 square metres comprising a 10mm primer seal followed by a 14mm one coat seal. This is not the same selection as a double/double spray seal.

30 The resurfacing element of the work at Lovedale Road was to be undertaken under the second defendant's term spray seal contract for the period 1 July 2001 to 30 June 2002. This contract was won and serviced by the first defendant. Clause 2 of that contract is as follows:

"Full service sprayed bituminous road surfacing shall be carried out in accordance with Roads and Traffic Authority QA Specification R106 – 'Sprayed Bituminous Surfacing (With Cutback Bitumen)', April 1997 as amended".

31 The first defendant was issued with purchase order 16118 to undertake the spray seal works. The second defendant was invoiced for the completion of this work on 17 May 2002. A Site Inspection Report prepared for the second defendant on 22 April 2002, which is effectively a preliminary design aid, refers to the need for 6500 square metres of "14/10" seal with a design rate of spread of binder of 1.28L per square metre for the first application and 0.91L per square metre for the second application together with a design spread rate of 1/98 square metres per cubic metre for the first (14mm) application of aggregate and 1/120 square metres per cubit metre for the second (10mm) application of aggregate.

32 A completed RTA pro forma Cutback Bitumen Seal and Reseal Design Calculation Sheet for Lovedale Road, completed on 23 April 2002, became exhibit 5. That sheet indicates that the works at Lovedale Road were a "Seal" with "Double Binder - Double Aggregate (DD)" [i.e. a double/double seal], and constituted "New Work".

33 With respect to the selection of aggregate sizes for double/double spray seals, the NAASRA Technical Report - Bituminous Surfacing Sprayed Work, dated January 1989, states:

"When using two applications of both binder and aggregate, it is usual for the aggregate in the second application to be not greater than one half size of that in the first application..."

Strict adherence to the guidance contained within the NAASRA report would have led to the utilisation of 7mm aggregate for the second application at Lovedale Road.

34 The resurfacing works on Lovedale Road on 10 May 2002 occurred between 9.15am and 1.00pm. The works were, therefore, completed approximately 18 hours prior to the plaintiff's accident, in fine conditions over six sprayer runs A to F inclusive. Runs A to C inclusive relate to the first applications of both binder and aggregate. Runs D to F inclusive relate to the second applications of both binder and aggregate. The data for runs A to C inclusive show an achieved rate of spread of binder of 1.28 to 1.3L/m2 compared to the target of 1.28L per square metre and an achieved rate of spread of 14mm aggregate of 1/95 to 1/98 square metres per cubic metre, compared to the target of 1/98 square metres per cubic metre. The data for runs D to F inclusive show an achieved rate of spread of binder of 0.9 to 0.95L per square metre, compared to the target of 0.9L per square metre and an achieved rate of spread of 10mm aggregate of 1/118 to 1/120 square metres per cubic metre, compared to the target of 1/120 square metres per cubic metre. Mr Hillier expressed the opinion that these results were well within the typical or expected operational tolerances.

The state of the road after spray sealing

35 Kevin Parsons was employed by Boral Asphalt. He was called to give evidence in the first defendant's case. He had worked for Boral Asphalt for nearly 20 years, commencing as a labourer and rising to the level of supervisor. He had extensive experience in the construction of roads using spray seal techniques. His qualifications and experience were not challenged. He gave detailed evidence of how the Lovedale Road double/double spray sealing contract works were performed.

36 Mr Parsons was asked for his observations of the site immediately before he left it on the afternoon of 10 May 2002. He gave the following evidence about this.

"Q. But at some point in time you left the site?
A. Yes.

Q. Before you left the site, did you do any inspection of the work?
A. Just to drive through the job.

Q. In what?
A. In a vehicle.

Q. What kind of a vehicle?
A. I can't remember the exact vehicle.

Q. Utility, heavy truck?
A. No, it'd be a utility.

Q. And what did you observe?
A. I would have observed if there was any loose material, too much loose material on the job or anything like that, any strips that we needed to cover.

Q. Do you remember whether there was any strips that needed to be covered?
A. Not at that point in time.

Q. And what did you observe about the state of the surface of the roadway, can you describe it to his Honour?
A. Well, it was - under our understanding of what the surface finish would be like, it was a reasonable seal for what we needed.

Q. Was there any loose material on the surface of the road?
A. At that point in time, no.

Q. What did you notice in your car as you passed over it?
A. In what way?

37 Later, when cross-examined by counsel for the second defendant, Mr Parsons had this to say about the state of Lovedale Road when he left:

"Q. So that before you left Lovedale Road on 10 May 2002, you were perfectly happy with the state of the surface of the road, weren't you?
A. Yes.

Q. And you understood that there would be no further work done on it until the next morning, is that right?
A. Correct.

Q. And you knew it hadn't been swept when you left the site?
A. Correct.

Q. Taking all of those things into account, you weren't concerned to leave the road in the condition it was in?
A. Well, as I mentioned before, when I talked to that - after that accident at the western end, I had asked the council if they wanted it swept and they were happy with the condition of it.

Q. Well, I am just talking about when you left?
A. No, I was happy with the condition of it.

Q. You didn't think that it required sweeping before you left, did you?
A. No.

Q. And if you had thought that it required sweeping before you left the site, you would have told somebody from the council that that was your view, wouldn't you?
A. If there's a good opportunity, I probably would have.

Q. Well, in terms of an opportunity, you could have telephoned them, couldn't you?
A. Yes.

Q. And if sweeping couldn't be arranged, then you would suggest to the council that some other method of dealing with the problem that you had detected be used overnight, wouldn't you?
A. That's a good chance that could have happened, yes.

38 Towards the end of his evidence I asked Mr Parsons some questions on this topic. The relevant passages from the transcript are as follows:

*****

"Q. The road was to be swept on the Saturday?
A. Correct.

Q. And that was to be swept by a contractor -
A. Arranged by Boral.

Q. - arranged by Boral. And what was it that that contractor would be sweeping on the Saturday as you anticipated?
A. Any loose material that happened to come off during the night.

Q. And do you know whether that activity occurred on the Saturday?
A. Which one are you referring to there?

39 Geoffrey Hayes also gave evidence for the first defendant. He was a senior engineering assistant with the Richmond Valley Council. In May 2002 he had been employed by the second defendant as a civil construction coordinator.

40 Mr Hayes gave evidence about the scene of an earlier accident that occurred at the western end of the work on 10 May 2002. He then gave the following evidence:

"Q. Did you inspect the roadway in the vicinity of that point?
A. Yes, I did.

Q. How did you do that?
A. I visually walked over it.

Q. And looked at the surface of the road?
A. Yes. Sorry, looked at the surface of the road in that area.

Q. What did you notice about the surface when you made that inspection?
A. There was nothing unusual about the surface, there was no damage to the surface, exactly what I expected to see after it had been sealed.

Q. Did you see any population of loose aggregate stones on that surface?
A. No.

Q. Apart from that inspection, walking over that western end, did you make any other inspection?
A. I drove through the job in both directions prior to leaving the site.

Q. For what purpose did you so drive?
A. To have an inspection of the finished product.

Q. When you did that what did you observe?
A. Nothing out of the ordinary basically, what I expected to see, a fresh bitumen seal.

Q. Did you see any quantities of loose aggregate on that seal?
A. No.

Q. Did you speak to anybody at the site other than council employees to the best of your recollection?
A. No, no.

Q. Do you remember who those council employees were?
A. Phil, Phillip Lord and Paul Pryor.

Q. Did you form any view about the need for any remedial action to be taken in respect of that seal before you left it that afternoon?
A. No.

HIS HONOUR

Q. Does that mean you didn't form a view or you did form a view that no work was needed?
A. I formed a view that no remedial work was required.

MACONACHIE

Q. Did you have a belief about the scheduled or programmed sweeping of that road on the afternoon of 10 May?
A. No, I just knew it was programmed for Saturday morning.

41 Mr Hayes was briefly cross-examined by counsel for the plaintiff. He concluded his evidence with the following question and answer:

Signage

42 According to Mr Hayes, signs were deployed on both sides of the road works over a period of six or so weeks. It appears from the diagram described as Fig 2 in a report of Mr Stuart-Smith dated 3 July 2006, which became exhibit 9-1, that the following signs were in place at various locations commencing at a distance of approximately 1km east from the eastern end of road works on Lovedale Road:

43 Some of the photographs that are in evidence show clearly that the commencement of the new work at its eastern extremity was obvious in daylight to a driver approaching from the east. The new work was much darker and is delineated by a straight line running across the original road surface, which is lighter in colour. Original line marking on the old road surface disappears at this point as well. These things can be seen in the photograph exhibit C12. The last of the signs referred to above appears to be approximately 20m from the commencement of the new work and roughly 120m from what I find was the point of impact marked by the presence of shattered glass in the middle of the road. This is shown in photographs C13 and C15.

Possible (physical) causes of the accident

44 It is not in dispute that the accident occurred in the way described by Mr Bailey. To my observation, he gave his evidence truthfully and clearly, particularly having regard to the fact that he was required to recall events that occurred more than five years previously. As cross-examination of him revealed, a slight issue exists as to whether or not his observations, as recorded by the attending police constable, were given from his orientation travelling east or from the plaintiff's orientation travelling west. This is discussed in more detail below. In the light of Mr Bailey's description, however, only the following possibilities would appear to emerge as realistic or likely competing (physical) causes of the accident:

44.1 The speed of the plaintiff’s vehicle.

44.2 A layer of loose gravel or aggregate on the road.

44.3 A steering manoeuvre performed by the plaintiff.

45 All of the parties relied upon expert evidence in order to attempt to explain what happened. None of the experts proposed any factor or factors not included in the above list. Significant areas of agreement were reached but no single, unanimous view upon the cause or causes of the accident emerged. In particular, the calculation of the speed at which the plaintiff was travelling, the precise condition of the surface of the roadway and, in this last respect, how the photographic evidence should be interpreted in aid of that enquiry, all remained highly contentious. It becomes necessary, therefore, to examine the expert opinions on these matters in some detail.

Mr Hespe

46 Frederick Stewart Hespe was instructed on behalf of the plaintiff that at about 7.00am, after rounding a curve beyond the intersection of Majors Lane, travelling in a generally westbound direction, the plaintiff encountered a newly resurfaced section of pavement that still had a considerable amount of loose gravel upon it. The loose gravel caused the plaintiff to lose control of the vehicle, which spun across the road into the path of Mr Bailey’s truck. He was further instructed that the road works had been completed about 2.00pm the previous day and that about 2.30pm on that day a vehicle travelling along the new seal lost control and crashed into a roadside power pole. That was an incident described by a Mr Lord in his file note of 13 February 2003. About 11 hours later another vehicle travelling along the same section of road, but in the opposite direction to the plaintiff, also left the road.

47 Mr Hespe expressed a number of opinions. The opinions that fell within his relevant area of expertise were as follows:

47.1 The plaintiff's accident occurred as a result of an excessive amount of loose stone (or aggregate) left on the pavement after road works on the preceding day.

48 Mr Hespe concluded that the plaintiff was travelling at approximately 50km/h when she entered the new work but had slowed to approximately 47km/h at the point of impact. This conclusion was derived from a series of complicated calculations based upon a number of known (observed) and assumed factors. With respect to Mr Hespe, I did not find his conclusions concerning speed to be particularly convincing. In short, through no fault of his own, Mr Hespe was required to incorporate too many unknown factors into his analysis. For example, the speed of the plaintiff’s vehicle was inevitably calculated by reference to the speed of the semitrailer. In turn, the speed of the semitrailer whilst apparently skidding under braking was dependent upon a calculation of the coefficient of friction on the road surface. In this respect, part of Mr Hespe's report was as follows:

, but we have no way of knowing what it really was.

49 Mr Hespe based his opinion about the condition of the road surface upon what was said about it in witness statements provided to him, as well as photographs. He expressed the following opinion derived from photograph C12:

". . . it can clearly be seen that the loose stones on the surface of the pavement have been arranged into windrows and wheel tracks by the passing traffic. This always happens when loose stone is left on the surface of the pavement. In this case, it can be seen that the depth of the windrows is such that stone has spilled back on to the old surface in front of the new work. My estimate of the depth of the windrows, from this and other photographs, is at least 25mm (1") and probably in parts 37mm (1.5")."

50 Mr Hespe also had this to say about loose stones in general:

"In general terms loose stones on a road pavement, particularly a sealed pavement, is inherently dangerous. This is because it materially reduces the effective coefficient of friction between the tyres and the pavement proper; and, if deep enough, can cause side reactions on the tyres of the steered wheels causing vehicles to deviate from the steered course. Even on straight stretches of road a sufficient depth of loose gravel can give rise to a significant reduction in directional stability.

On the other hand a layer of only one stone in depth so reduces the coefficient of friction as to make curves dangerous and even on straight roads makes any deviation hazardous. Furthermore, if for any reason loss of traction should occur, the change from limiting to sliding friction is even more pronounced and makes it extremely difficult if not impossible to recover from a loss of control. This is because not only is the limiting friction reduced, but the coefficient of sliding friction becomes very low indeed.

The instantaneous loss of limiting friction is a frequently observed phenomenon. Usually the disturbing factor is limited in extent and the general road surface is in good condition with a consequent high coefficient of friction; so that the incipient dropping into sliding friction is curtailed before it can fully developed. In the subject situation this was not the case, the general road surface had a low coefficient of friction, so that once the slide commenced it was impossible to retrieve the situation.

51 Mr Hespe gave further evidence in chief. He was taken to the critical topic of what caused the plaintiff’s vehicle to rotate. He gave the following evidence:

52 Mr Hespe said that his use of the term "break" in the answer last quoted had a particular meaning. He said, "when I say 'break' it starts to rotate about its vertical axis as opposed to braking".

53 Mr Hespe was then referred to exhibit C12 by reference to which he gave a long explanation of his opinion of how the accident happened. The answer is as follows:

"Q. C12?
A. Is it C12? It's my opinion that that is where the initial loss of control took place and when, for whatever reason, that she got her left wheel - that's the nearside wheel - into the left-hand shoulder windrow, when that occurred it was the initiating factor that broke the vehicle from limiting to sliding friction. Now, that can often occur for all sorts of different reasons, uneven road surface, braking, cornering, etcetera etcetera, and particularly when encountering a situation where one wheel is on a much more sound surface than the other.

Now in this case the nearside wheels went into the loose material which would have had a retarding effect and would have tended to rotate the vehicle counter clockwise about its vertical axis and, in my opinion, that was the cause of the transition from limiting to sliding friction and limiting friction would have kept her on the road, but the moment she went into sliding friction - because the balance of the road had a low coefficient of friction - she wasn't able to recover. It's quite common to - for a vehicle to break into sliding friction, and using again B-R-E-A-K, but because the balance of the road surface is sound it just recovers.

54 The photograph last referred to was exhibit C1.

55 Mr Hespe also gave evidence about his opinion of the plaintiff’s speed and location at the point where she lost control. The burden of his opinion in respect of the former was that she was travelling at somewhere between 40km/h and 50km/h. I consider this opinion to be unreliable and an underestimation of the true position. It either ignores or fails adequately to accommodate the observations of Mr Bailey. His evidence was that the plaintiff was travelling slower than two other vehicles that he estimated had passed him at about 70km/h. Such a description did not in my view leave room for a realistic conclusion, assessed in the context of Mr Bailey’s position, that the plaintiff was travelling as much as 20km/h to 30km/h below the speed of the other vehicles.

56 Mr Hespe’s opinion concerning the point where the plaintiff first lost control is also, in my view, equally unreliable. As Mr Hespe noted, "I've got no evidence because you can't see anything on any of the other photographs of the passage of the vehicle". He agreed with Mr Maconachie QC in cross-examination, that "at least 55 metres and perhaps 60 or 70 metres of the vehicle’s travel is not the subject of any [photographic evidence] that [he] had access to". Mr Hespe’s opinion that the plaintiff lost control within about five to ten metres of entering the new work is unsupported by evidence and is speculation at best. It is also to some extent in conflict with his assumption referred to at transcript 236, that "the total metres that she travelled after the [loss of control] event was about 75 metres".

57 Mr Hespe also confirms this at transcript page 238. He was taken to exhibit C10. With respect to that photograph he said, "I can't see anything in that photograph which indicates skid marks". Based upon this evidence and the description given by Mr Bailey it follows that the plaintiff’s vehicle had not commenced to lose traction or slide onto his side of the road at any point east of the photographer in exhibit C10. In Mr Hespe’s words about this on the same page were:

I conclude that it was still travelling more or less directly along its own axis

58 Then on the next page, still in reference to exhibit C10, Mr Hespe said:

"All I can say from that photograph, that there is no evidence of skidding on that."

59 Finally on this topic, Mr Hespe agreed with the cross-examiner in the following terms about what flowed from the absence of skid marks in exhibit C10:

"Q. No evidence which would enable you to say--
A. That the wheels--

*****

Mr Jamieson

60 Mr Jamieson expressed his preliminary summary and conclusions in the first of four reports prepared by him. Included in that material was the following opinion:

"It therefore seemed to be the case that at this location . . . an excess quantity of loose stones [was] not removed from the carriageway.

61 Mr Jamieson effectively repeated this opinion in his evidence in chief. An example of this is revealed in the following question and answer:

62 Mr Jamieson identified exhibit C12 as the only photograph showing the presence of a windrow of the sort to which he referred. He went on to describe what in his opinion that photograph depicted and the danger that it presented in the following passage:

"Q. What is it about that variation in depth between the wheel tracks and on the left of those wheel tracks that present a danger to motorists?

OBJECTION. ALLOWED

63 Mr Jamieson was given an opportunity in cross-examination to clarify precisely what it was that he observed in the photograph that led him to form the conclusions that he did. The following question and answer are relevant:

Mr Hillier

64 Mr Hillier arrived at a series of conclusions with respect to what he described as the provision and immediate after-care component of the road resurfacing operation that was undertaken on Lovedale Road some 18 hours prior to the plaintiff's accident. For presently relevant purposes his conclusions were as follows:

64.1 Witness evidence is consistent in stating that loose aggregate was present on the road surface at the material location and time.

64.2 Photographs from around the time of the accident show the presence and the trafficking of a degree of loose material (over-spread or displaced aggregate), but in his experience this was neither unusual nor excessive. In particular, photographs seen by Mr Hillier did not in his opinion show a build up of windrows outside the vehicle wheel paths sometimes seen by him where the application of aggregate has been noticeably heavy, i.e. poorly controlled and/or considerably in excess of the target rate of application

64.3 The operational documentation seen by him indicated that achieved rates of spread for both binder and aggregate were within typical (expected) operational tolerances.

65 Mr Hillier expressly agreed in his first report (at paragraph 5.7) with Mr Jamieson's comments relating to the potential for loose aggregate to have an adverse effect on vehicle handling. In addition, he gave the following evidence in cross-examination:

66 In Mr Hillier's opinion, the presence of an amount of loose aggregate is largely inevitable and universally accepted by practitioners given the processes utilised. The pertinent difference between Mr Hillier and Mr Jamieson on this topic is that Mr Jamieson concluded that an "excess" of loose aggregate was present on Lovedale Road at the time of the plaintiff's accident, which should be characterised as excessive or unacceptable. In contrast, Mr Hillier acknowledged that there was an "excess" of material (aggregate) laid, which he described as "an accepted operational requirement". Mr Hillier did not concede that this amount was excessive. (This difference becomes significant in the discussion below on the issue of breach of duty). For present purposes both Mr Jamieson and Mr Hillier agreed that the presence of a layer of loose gravel or aggregate on the road surface was inimical to vehicle stability and control and hence to safety.

Mr Johnston

67 Grant Johnston is an engineer who describes himself as a reconstructionist. He prepared a series of reports for the purposes of these proceedings and expressed a number of opinions. Some of those opinions seemed to be peripheral to his qualifications. Opinions that he appeared to me to be able to express included the following:

67.1 Immediately prior to the impact with the semitrailer the plaintiff's vehicle must have been sliding sideways along the road, leading with its left side. The plaintiff’s vehicle commenced to rotate in a clockwise direction, until her vehicle had reached 90° to its original direction of travel at the time of impact, shortly after entering the newly sealed section some 100m further east.

67.2 The semitrailer was travelling at approximately 20km/h to 40km/h at the time of impact with the plaintiff's vehicle. (Mr Jamieson agreed with this estimate).

67.3 The plaintiff's vehicle was travelling at a likely closing speed of approximately 30km/h to 40km/h, although it is possible that it may have been as low as 20km/h. This produced an actual speed of the plaintiff's vehicle at the time of impact with the semitrailer of between zero km/h and 20km/h.

67.4 Based upon the amount of loose gravel observed in the photographs, the available friction is likely to have been in the order of 0.4 to 0.6g.

67.5 Assuming a coefficient of friction of 0.3g, the loss of control speed of the plaintiff’s vehicle was between 65km/h and 75km/h.

67.6 Allowing for a rotation distance of 80m (something less than the total 100m travel distance on the new surface), a friction coefficient of 0.4 to 0.6g, an average slip angle of 45° (average rotation angle between zero and 90°) and a final speed for the plaintiff’s vehicle of zero to 20km/h, the plaintiff was travelling at between 75 and 95km/h when she entered the new work.

68 Mr Johnston expressed the view that, whilst the exact mechanism of the initial loss of control was unknown, it is likely that it resulted from a lateral acceleration demand of the vehicle exceeding the lateral acceleration capacity of the roadway. Mr Johnston expressed the opinion that it was "therefore likely that for any loss of control scenario the [plaintiff's] speed, estimated at between 65km/h and 95km/h, is likely to have been a significant factor in the loss of control event". Mr Johnston said, "[c]onversely, all other things being equal, it is unlikely loss of control would have occurred at 40km/h".

69 Mr Johnston commented specifically on police photograph 10 (exhibit C12). In his opinion, that photograph did not show excessive gravel beyond the expected controlled excess at a spray sealed site. In Mr Johnston's opinion, the quantity was not sufficient to reduce frictional supply to the very low levels suggested by Mr Jamieson. He agreed with Mr Jamieson that with a large excess of stones, values for the coefficient of friction as low as 0.3g would be possible. Mr Johnston also agreed with Mr Jamieson that because the road surface was uneven it became difficult to predict precisely what friction supply the plaintiff's vehicle would have experienced.

70 He was also asked to clarify some earlier evidence he gave about the road being temporarily hazardous. His evidence on this topic was as follows:

"Q. Could I just clarify one matter. Mr Johnston, you were asked some questions - and, forgive me, I forget who asked you - but you agreed that the road surface following the works was temporarily hazardous, I think. Do you remember agreeing to that?
A. Yes.

there is always a small amount of loose aggregate prior to the road being swept

that's the hazard - that's the hazard

71 Mr Johnston also dealt specifically with Mr Jamieson's opinion concerning the behaviour of vehicles striking deep windrows of loose material with the front nearside wheel. As will emerge, I find that this opinion is totally at odds with the evidence of Mr Bailey, which I accept. At paragraph 2.11 of his Second Supplementary Report (exhibit 7.3), Mr Johnston said the following:

"If such a phenomena [sic] had occurred then I would expect to observe evidence of such a windrow and in particular a tyre track mark through the alleged loose material. I see no such evidence in the photographs provided relating to the subject incident. I agree that the actions suggested could take place in a hypothetical sense however there is no physical evidence to support that they did occur. If such an action did occur it is highly likely that in a preserved scene there would be evidence including the alleged windrow and the vehicles tyre marks."

72 At paragraph 2.24 of his Second Supplementary Report, Mr Johnston dealt with a potentially significant issue. The material is self-explanatory but it is important to reproduce it here in full.

"I was asked to clarify my opinion that the likely friction factor of a freshly sealed spray sealed surface is about 0.4 to 0.6g. This is based primarily on my own testing across a range of freshly sealed spray sealed surfaces, bituminous surfaces with small quantities of loose material and on numerous unsealed or gravel road surfaces. This is the range of friction values I usually measure. I acknowledge that this is by means of a longitudinal locked wheel braking tests [sic] and that many of the quoted tables produce different values for longitudinal versus sideways or lateral friction. It must be remembered that these are for design purposes and that friction supply, not the demand which the tables produce, is generally approximately equivalent in all directions. I acknowledge however that there is to my knowledge no comprehensive study of friction of a newly laid spray sealed surface with different levels of grading of loose aggregate."

73 Mr Johnston was asked to calculate the coefficient of friction by reference to the stopping distance of the semitrailer of 40m from a speed of 40km/h. His evidence was that the result was a coefficient of 0.16g. It can be seen immediately that there is a very large discrepancy between a coefficient of friction of 0.16g calculated by reference to known factors derived from the behaviour of the semitrailer on the one hand, and Mr Johnson’s calculations of between 0.4g and 0.6g arrived at (somewhat haphazardly) by the methods described in the preceding paragraph on the other hand. I consider that this has led to an over-estimate by Mr Johnston of the plaintiff’s speed at the point where she first lost control.

74 Finally, Mr Johnston expressed an opinion that at 40km/h an impact of the plaintiff’s vehicle with the semitrailer was unlikely "all other things being equal". This was said to be based upon the premise that if the vehicle had slid "for 80 to 100 metres as suggested" at any friction value above 0.8g, it would not have reached the location of the truck for the impact to have occurred. Two matters require comment. First, I am unaware how the value of 0.8g is produced. Secondly, for present purposes it is important to note that in my view the plaintiff's vehicle slid out of control over a distance considerably less than 80 metres prior to the impact. It follows that if the plaintiff’s vehicle skidded through its rotation over a relatively short distance, its speed at impact would have been closer to its speed immediately before the uncontrolled rotation of the vehicle commenced.

Mr Stuart-Smith

75 Roger Stuart-Smith is a consulting traffic engineer. He expressed the following conclusions touching upon the possible physical causes of the plaintiff's accident, having regard to the plaintiff's likely speed and the state of the road surface:

75.1 Based on the description of the plaintiff’s movements given by Mr Bailey, and upon the damage to her vehicle, it is more likely than not that the plaintiff was travelling at a speed significantly in excess of the speed limit of 40km/h.

75.2 It was more likely than not that the plaintiff's accident was caused by a combination of excessive speed for the conditions and what was described as "an excessive steering manoeuvre by the plaintiff".

76 Alike with all of the experts, Mr Stuart-Smith was required to rely upon a combination of photographs and Mr Bailey's description of what happened to arrive at his conclusions. As the evidence reveals, precisely what the photographs depict is the subject of differing opinions. Mr Stuart- Smith's opinion is as follows:

"Photographs of the road in the vicinity of the crash site [see exhibits C1, C12 and C14] taken by Police just after the crash, show wheel paths where aggregate has been well bedded, with what appears to be a light covering of loose stones between the wheel paths. The depth of loose aggregate between wheel paths does not appear to be deeper than a single, relatively sparse layer of aggregate.

[Exhibits C8 and C15] . . . show the surface in an eastbound direction, showing the skid mark made by the semi-trailer. The photographs do not show any associated furrowing with the skid marks. No significant quantity of loose aggregate can be seen to have been pushed to the sides of the marks. The loose material appears to be no deeper than a single, relatively sparse layer.

The reported observation by Mr Bailey, that the nearside wheel of the plaintiff's vehicle appeared to "dig in" where there was "excess loose gravel" on the fringe of the roadway, is not consistent with the evidence shown in [exhibit C12], where the commencement of the left side edge of the new surface can be seen.

77 Mr Stuart-Smith also expressed an opinion on the issue of what he described as crash dynamics. That opinion was based upon views formed and expressed by Mr Stuart-Smith above, including his views concerning the physical state of the road surface. That opinion was as follows:

"The semitrailer driver, Mr Bailey, reported that the plaintiff went into a spin after her left side front wheel entered gravel on the side of the road.

Given the likely very low depth of loose aggregate present (as evidenced by [exhibit C12]), it was possible that Mr Bailey observed the plaintiff make a severe steering correction to the right after travelling towards the left side of the road. Such a manoeuvre could have displaced loose material on the surface at the commencement of the movement and subsequently.

Nonetheless, the described "spin" of the vehicle is consistent with the plaintiff having made a steering manoeuvre that was excessive for the speed she was travelling and the available friction. As a result, the plaintiff entered a clockwise yaw.

[Exhibit C1] shows a view of some of the tyre marks resulting from the plaintiff's clockwise yaw just before impact. Glass debris on the road surface denotes the approximate point of impact.

Whilst friction on the loose aggregate could have been expected to be lower than on a normal smooth road surface, friction should have been sufficient for normal steering manoeuvres at the speed limit to be accomplished with an appropriate safety margin . . .

78 The product of a combination of the state of the road surface and the speed of a vehicle upon it is the coefficient of friction. In his first report Mr Stuart-Smith calculated the coefficient of friction of the road surface assuming that the semitrailer was travelling at about 40km/h and "that it skidded to a stop in the distance of 40 feet estimated by Mr Bailey". As will be apparent, this should have been a reference to 40m so that, even allowing for Mr Stuart-Smith’s margin of error of 25 per cent, his calculation that the road surface was likely to have had a friction coefficient "of around 0.4 to 0.7" is erroneously conservative. Even disregarding the error, Mr Stuart-Smith conceded that since the number of wheels on the semitrailer that were locked is unknown, the range he contended for "might not be precise and could be conservative".

79 Nor is the estimate of speed by Mr Stuart-Smith - indeed by anybody for that matter - particularly satisfactory. The extent of damage to the plaintiff's vehicle was one of the matters on which experts relied to estimate its speed. Mr Stuart-Smith conceded that such a task was difficult to undertake since the extent to which the semitrailer may have slowed is not known so that the impact speed of the semitrailer is also not known. His analysis was as follows:

"Since the collision occurred about 100m from the commencement of the new surface, the distance over which the plaintiff sideslipped could have been up to 100m (although a lesser distance was most likely the case).

Nevertheless, given the available distance, should the plaintiff have commenced to sideslip and rotate to 90° at a regular rate over a distance of only 60 m, based on a friction coefficient of 0.4 to 0.7 and slowing by lateral friction only, she would have been travelling at around 62 to 82km/h at the commencement of her sideslip, had she stopped at the point of impact. Had the plaintiff sideslipped over a distance of 80 m, she most likely would have been travelling in excess of 72 to 95km/h had she stopped at the POI.

Conclusions on (physical) cause of the accident

80 The semitrailer was approximately 19.5m long. Several photographs depict it in the position where it came to rest following the accident. The point of impact between the two vehicles was very close to the point where glass is shown on the road. The photographs reveal that the semitrailer came to rest before the rear of the semitrailer had travelled past that point.

81 The photographs also show skid marks left by the plaintiff's vehicle as it moved in a clockwise yaw in the manner described by the experts. Those skid marks, not unexpectedly, end at the point of impact. Exhibits C1 and C7 are the best examples of this although exhibit C15 shows it slightly less clearly but from a different angle. Significantly for present purposes is the fact that the skid marks left by the plaintiff's vehicle do not appear to start further east than a point approximately adjacent to the front of the semitrailer in its resting position. Again, exhibit C7 is the best example of this.

82 To the extent, therefore, that skid marks depict the path of the plaintiff's vehicle in its uncontrolled clockwise rotation in the westbound lane, they do not extend for a distance much beyond the length of the semitrailer or approximately 20m. The skid marks do not, for example, depict the plaintiff's vehicle in an uncontrolled clockwise yaw extending over a distance of 40m or 60m or more, as has been suggested by some experts. Exhibits A5 and A7 do not reveal any evidence by way of skid marks or any disturbance of the gravel suggesting a loss of control anywhere before a point approximately level with the road sign shown on the left in exhibit A6. I find that the plaintiff did not commence to lose control of her vehicle until it had reached a point approximately level with that road sign.

83 I make the following further findings. First, that the plaintiff’s vehicle came across onto Mr Bailey’s side of the road very quickly. His evidence supports this. Furthermore, the skid marks would have been longer if it were otherwise. Secondly, that the speed at which the plaintiff’s vehicle went out of control was the same as or very close to the speed at which it collided with the semitrailer. This is because the dissipation of energy throughout the course of the skid would have been less than if the skid had taken longer and extended over a longer distance. Thirdly, that loose gravel that remained on the road after the spray sealing operation, and which was scheduled to be swept later that day, reduced the coefficient of friction to a level below that of a swept surface. I find that the coefficient of friction in the westbound lane was approximately the same as that calculated for the eastbound lane or 0.16g.

84 Every version given by Mr Bailey of what occurred includes his observation that the plaintiff’s vehicle initially pulled or veered to its left and then came back into a clockwise rotation or yaw as it slid onto his side of the road. It is not possible to say with certainty what caused the initial movement to the left. The plaintiff’s nearside front wheel may have "dug in" as Mr Bailey described. There is certainly no competing version and no reason to doubt its accuracy.

85 I also find that there were windrows of loose aggregate on the road. This is clearly shown in exhibits A2, A5, C2, C7 and C10. The photographs are taken with the low morning sun shining from the northeast, casting shadows across the road surface. These shadows undulate as they pass over wheel tracks and accumulated aggregate on either side of them and between them. These undulations correspond to the borders or edges of the accumulations of more or less aggregate as the case may be. Even without the benefit of the shadows, I find that the photographs depict a distinct accumulation of gravel in lines either side of, and between, these wheel tracks. The term "windrow" is in some respects unfortunate as it suggests an accumulation in elongated piles. It has a tendency to overstate the degree of accumulation. The gravel could not realistically be described as sitting in piles. However, the left foreground in exhibit C7 does in my opinion depict a volume of loose aggregate in layers quite distinctly different to, and greater than, the rather more sparsely populated paths where vehicles’ wheels have tracked since the previous afternoon. The same can be said of exhibit A5.

86 The evidence of Mr Bailey concerning speed is also the only evidence that does not rely upon assumptions. It was not significantly challenged in cross-examination. The effect of his evidence in this respect is that the plaintiff was going slower than 70km/h. This puts the plaintiff’s speed within the range calculated by Mr Stuart-Smith. According to him, if the plaintiff’s vehicle started to sideslip at a regular rate over a distance of only 60m she would have been travelling at the point where she first lost control at a speed of between 62km/h and 82km/h. For the reasons discussed above, I have found that the plaintiff’s sideslip occurred through a distance of less than 60m and more likely not in excess of 40m. Her speed as calculated by the Stuart-Smith method would therefore be correspondingly lower and in line with Mr Bailey’s observations.

87 I agree with Mr Stuart-Smith, and I find, that the plaintiff was travelling at a speed in excess of 40km/h when she entered upon the new work. I do not accept that there is a reasonable likelihood that she was travelling at a speed above 70km/h. I also find that the plaintiff was probably travelling at somewhere between 60km/h and 65km/h immediately prior to her loss of control.

88 I find that whilst travelling at that speed the plaintiff’s nearside front wheel drove onto a windrow, or what I prefer more accurately to describe as an accumulation of excess aggregate formed by the passage of vehicles over the new work in the 18 or so hours preceding the accident. It then caused the vehicle to "drop into the wheel track" or "to dig in and pull to the left where there was excess gravel on the fringe of the roadway". This then either caused the plaintiff’s vehicle spontaneously to go into a clockwise rotation or may possibly have caused the plaintiff to react by pulling the steering wheel to the right. This is what Mr Stuart-Smith described as a "severe steering correction". However, according to Mr Hespe, "[w]hether she did or not would not have altered the fact that the vehicle was out of control". As Mr Hayes described it, "[t]here were stones on the road, and there were loose stones on the road". I find that the rotation of the plaintiff’s vehicle was caused or facilitated by the layer of loose gravel or aggregate that remained upon the surface of the roadway, which was due to be swept off later that same day.

What roles did the defendants play in the post spray sealing operations at Lovedale Road?

89 Clause 16 of the second defendant's spray seal contract (the tender) states, "Cleaning up shall be the responsibility of the [first defendant]". Clause 19 provides as follows:

"The removal of excess aggregate from the road surface, road shoulders, gutters and table drains during the Defects Liability Period shall be the responsibility of the [first defendant]. If the [first defendant] fails to comply with a direction from the Superintendent to remove excess aggregate, then the Principal may remove the aggregate at the [first defendant’s] expense".

90 Clause A3.3.6 of the RTA specification relates to Control of Traffic. It requires the Contractor to:

". . . take all necessary precautions to protect the work from damage until such time as the new seal coat has developed sufficient strength to carry normal traffic without disturbance of the aggregate. Where early use of the new seal is needed to facilitate the movement of traffic, vehicles may be allowed to run on the work after initial rolling has taken place provided vehicles are controlled to such slow speeds that no displacement of aggregate occurs . . ."

91 Clause A3.7 of the RTA specification deals with the Application and Incorporation of Aggregate. It provides as follows:

". . . The Contractor must apply the aggregate of the specified nominal size and at the target aggregate application rate. The method to determine the actual aggregate spread rate must conform with RTA T274 or as approved by the Superintendent . . . "

92 That clause also says that the aggregate must be "spread uniformly" and that rolling must then take place using pneumatic tyred rollers until the aggregate is firmly embedded. It is suggested that not less than eight roller passes within one hour of placement should occur. If the aggregate is not evenly distributed then a drag broom can be used after initial rolling to rectify the situation.

93 With respect to double/double seals, clause A3.7 continues as follows:

"Where a bituminous surfacing is specified with separate applications of coarse and fine aggregate, each on a single application of binder, the coarse aggregate must be applied first, rolled and any necessary brooming carried out . . . before application of the fine aggregate and its subsequent rolling and brooming . . .

94 Sections 12, 13 and 14 of the NAASRA Technical Report - Bituminous Surfacing Sprayed Work, dated January 1989, deal with the after care of spray seals. Those sections include the following comments:

". . . Immediately the binder has hardened to the stage at which no more aggregate can be pressed into it by rolling or by traffic moving at slow speeds all loose aggregate should be removed by sweeping it clear of the edge of the seal . . . suction cleaners are useful for removing loose aggregate without damaging the surface . . . The road should not be opened to unrestricted traffic until the loose aggregate has been removed.

The work should be organised so that spraying operations cease sufficiently early for the binder to set and the aggregate to be properly incorporated in the binder before nightfall. This is necessary to protect both traffic and the work from damage. This could involve a period of up to four hours.

Traffic control does not end when spraying operations cease. It should extend as long as necessary to protect both traffic and the work.

. . . As a normal routine the surfacing should always be inspected the next day . . .

Fast traffic can damage a seal coat in its early life and whenever needed traffic control should be used . . .

95 The RTA Sprayed Sealing Guide deals with after-care in the following terms:

"At least one pass of the rollers should be completed before traffic is allowed onto the new work . . . [page 20].

Loose aggregate should be removed as soon as possible without damaging the seal . . . [page 21].

Brooming should be deferred on other sprayed seals [i.e. seals that do not utilise polymer modified binders] until the aggregate has sufficiently adhered to the binder. A light brooming may be carried out on the same day as rolling, but additional brooming will be required on the following day . . . [page 22].

. . . a vacuum broom can be used on new seal immediately following the completion of the rolling . . .[page 22].

96 Mr Jamieson said that the issue of loose stones on newly constructed roadways has been of concern to road makers for many years. He referred to the NAASRA "Bituminous surfacing spray work guide (Technical Report, January 1989)" and the Austroads "Sprayed Sealing Guide (2004)", although the latter quite clearly post-dated the plaintiff's accident. He said that it could be seen from these documents that there is no technical need to leave large amounts of loose aggregate on the surface of a roadway that has been re-sealed. Part of the 1989 document, under the heading "12.6 Loose Aggregate", provided as follows:

· "Traffic speeds should be controlled whilst there is loose aggregate on the surface to less than the speed which will cause stones to fly high enough to strike windscreens.

· Immediately the binder has hardened to the stage at which no more aggregate can be pressed into it by rolling or by traffic moving at slow speeds all loose aggregate should be removed by sweeping it clear of the edge of the seal. This can be achieved by using rotary brooms provided care is taken not to dislodge embedded aggregate. Also suction cleaners are useful for removing loose aggregate without damaging the surface.

· While there is loose aggregate on the surface and any possibility of windscreens being broken by flying stones, suitable warning signs should be prominently displayed advising motorists of this hazard. Traffic controllers with stop/slow bats should also be used to restrict the speed of traffic for some time after completion of the work.

The road should not be opened to unrestricted traffic until the loose aggregate has been removed.

150 I was not referred to any authority by the plaintiff or the first defendant to suggest that, in the circumstances of the present case, the principles enunciated in Montgomery ought not to apply to a resolution of the question of the second defendant's liability to the plaintiff. For example, it was not suggested that particular legislation or factual considerations not applying in Montgomery made the analogy with that case inapposite. There was certainly no dispute about the relevantly applying contractual provisions that governed the relationship between the defendants. It was not submitted by the first defendant that the removal of excess aggregate from the road surface was not its responsibility in accordance with clause 19. It was not submitted by the plaintiff that the second defendant had negligently employed or engaged the first defendant as its contractor to carry out the works.

151 The second defendant submitted that whatever duty it had to the plaintiff had been discharged by the selection of the first defendant as an apparently competent subcontractor. It submitted that there was no duty imposed on the second defendant to ensure that the employees of the first defendant did not behave carelessly: see Montgomery at [27].

152 Accordingly, the first defendant sought to argue that the second defendant was directly in breach of its own duty to the plaintiff as a result of its independent failure to erect proper or adequate warning signs. However, clause 14 of the tender deals specifically with the responsibility for signs. It is in the following relevant terms:

" 14. CONTROL OF TRAFFIC

In addition to the requirements of RTA QA Specifications R106, Clause R106.5.10, and R107, Clause R107.5.10, the [first defendant] shall be responsible for the control of traffic during the execution of the works in accordance with RTA QA Specification G10 - "Control of Traffic" and "Traffic Control at Work Sites Manual" and to the satisfaction of the Superintendent.

after the work is completed

153 Although there was considerable evidence, and although I was referred to a number of general provisions, about road signs (see, for example, the report of Mr Johnston exhibit 7-1), my attention was not drawn to any other provision said to be relevant to the allocation of responsibility as between the defendants for the erection or maintenance of appropriate signs. (This is so notwithstanding a specific pleading in the first cross claim that the second defendant breached its contract with the first defendant by failing to have appropriate temporary signage in place to inform the plaintiff of the changed traffic conditions expected to be found at the site of the works or to erect signs "in accordance with AS1742.10", (whatever that may mean)). Even if there were room for argument that the plaintiff's accident did not take place "during the execution of the works", there is no room for argument that it occurred before completion of the work that the first defendant was required to perform. Any obligation upon the second defendant to erect any temporary warning signs "after the work is completed" had obviously not arisen. The allocation of contractual responsibilities between the defendants is of course neither necessarily co-extensive with nor determinative of the scope and content of their respective independent duties of care to the plaintiff. However, in the absence either of evidence or a submission that the second defendant was negligent in the choice of the first defendant as its contractor, the second defendant was not in the circumstances of this case in breach of a duty of care that it owed to the plaintiff by failing to second-guess the adequacy of the first defendant's performance.

154 Rather than attempting to confront this reasoning, and arguably in anticipation of it, the first defendant sought instead to rely upon a conversation between Mr Parsons and Mr Hayes as having the consequence that the second defendant was thereby inculpated, with the result that the first defendant's liability to the plaintiff was either excluded or reduced. That conversation emerged in the course of evidence given by Mr Parsons in the following terms:

"Q. (Exhibit N shown) Pardon me for being so unhelpful Mr Parsons, but it is usually preferable to see how much anybody can remember before they refresh their memories. Is exhibit N a copy of your diary for 10 May?
A. Correct.

Q. Does it contain entries made by you?
A. Yes.

Q. Is there anything in the diary entry that helps you to remember anything more about the event involving the man?
A. As to the story--

Q. First, does it help you to remember what he told you had happened?
A. Yes.

Q. What did he tell you had happened?
A. He said he swerved to miss a kangaroo, and we hadn't seen any all day.

Q. Do you see then the words "police not called"? Did you write that?
A. Yes.

Q. Why did you write that?
A. I asked him if he wanted the police to be called and he said no.

Q. There is then an entry "council site" and what is written there?
A. "Council site under 40 kilometres an hour and reps happy with sealed condition".

Q. What caused you to write those words?
A. Because when I come back from Paxton the council representatives were there talking to the bloke and I asked at the time were they happy with the seal and they said yes. I said well, if you are not we will get it broomed for you, and they said no, we are quite happy with it.

155 This conversation took place some time in the mid-afternoon of 10 May 2002. According to the first defendant, whatever the contractual relationship between the defendants may have been, as a matter of cause and effect, Mr Hayes had the power under the contract to require the first defendant to sweep or alternatively had the power under “the Act” (presumably the Roads Act 1993) to close the road or take some corrective or remedial action utilising the second defendant's resources. The first defendant then made the following submission:

"20. It is not to reinvigorate the last opportunity rule to find, as a matter of historical fact, that Mr Hayes could have, but did not, require correction of anything on the road surface; the relevant normative judgment ascribing fault for any deficiency to the Council is required by the commonsense approach to causation."

156 In other words, the first defendant submitted that any causative responsibility for any defect in the road must lie with the second defendant as the road authority, which had the relevant power, but which it decided in the circumstances it was unnecessary to use.

157 I disagree. The burden of this submission is that the conversation between Mr Parsons and Mr Hayes displaced the contract regulating the respective positions of the defendants. It did not do so and I have some difficulty following precisely how it could have done so. It would seem clearly to be an attempt to breathe life into the long dead body of the last opportunity rule. It is also afflicted with other difficulties, largely identified in the second defendant’s written submissions, upon which it is unnecessary to elaborate.

Conclusions on liability

158 I find that the first defendant is relevantly "the person charged with the responsibility" referred to in pars [137] and [138]. I find that the plaintiff was injured as a result of the first defendant's decision to permit members of the public, including the plaintiff, to drive upon Lovedale Road prior to final sweeping of the road, which would have removed the gravel deposited upon the road surface during resealing but dislodged by passing traffic between approximately 2.00pm on 10 April 2002 and the plaintiff's accident at approximately 7.00am the following morning. That was a known hazard to motorists. Lovedale Road should not have been opened without appropriate controls or restrictions. I find that the signs that had been erected, presumably in conformity with advice of the sort expounded upon by Mr Johnston (see par [70]), were wholly inadequate and ineffective for that purpose and that there was as a result a failure by the first defendant to take proper or adequate steps for the safety of the plaintiff in the circumstances.

159 I find that the second defendant is not liable to the plaintiff for breach of the duty of care that it owed her.

Causation

160 The first defendant submitted that even if I were to find that it had breached its duty to the plaintiff, the plaintiff should fail on the issue of causation. It made the following submissions:

160.1 Mr Bailey’s statement (exhibit Y) must be understood to assert a deliberate turn to the right by the plaintiff for whatever reason.

160.2 The absence of marks upon the road surface evidencing a loss of control for approximately 20 to 30m prior to the point of impact where the yaw marks are plainly obvious.

160.3 The failure of the plaintiff to call any eye witness evidence with respect to the state of the roadway immediately after the collision, other than Mr Bailey " whose evidence was incomplete, imprecise, and affected by the emotional elements referred to " earlier in the first defendant's submissions.

160.4 The photographs in exhibits A, B and C, which do not support any case to the effect that the plaintiff lost control in windrows of aggregate.

160.5 The plaintiff was travelling at a speed in excess of 40km/h.

160.6 All of the evidence is consistent with the plaintiff travelling more quickly than her experience dictated, becoming concerned by the presence of a large vehicle coming towards her, causing an over-reaction to the situation, and loss of control of her vehicle.
160.7 In particular, the evidence of the police who attended the scene, to the effect that the plaintiff's speed was about 50km/h, is likely to be reliable. They saw the scene, including the plaintiff's car and the roadway and they had the advantage of speaking to Mr Bailey when everything was fresh in his memory.

161 The precise words attributed to Mr Bailey in exhibit Y were, "I saw this vehicle turn to its right a bit". In my view, that was a description of the movement of the vehicle, not Mr Bailey's opinion about what caused it.

162 The absence of marks on the road in the location referred to is irrelevant. It will be apparent from my earlier findings that I did not accept Mr Hespe’s analysis concerning the point of the plaintiff's initial loss of control. On the contrary, marks on the road clearly describe where that loss of control occurred. It was well beyond the position marked by Mr Hespe on exhibit 1, which is a copy of exhibit C12.

163 The first defendant’s submissions concerning the plaintiff’s speed go in my opinion to the issue of contributory negligence rather than causation. That is dealt with below. The balance of the matters mentioned does not appear to me to relate to the question of causation.

Contributory negligence

164 The first defendant contended that the plaintiff negligently contributed to her own loss and damage. It particularised that contention as follows:

164.1 Driving at an excessive speed in the circumstances.

164.2 Driving faster than 40km/h, the speed limit at the time.

164.3 Failing properly to control her motor vehicle.

164.4 Failing to have regard to the prevailing road conditions.

164.5 Failing to keep a proper lookout.

164.6 Failing to have regard to the various road-warning signs.
164.7 Failing to keep a motor vehicle on the correct side of the road.

165 The first defendant submitted that one unambiguous and uncontroversial factual circumstance bespeaks contributory negligence. That was the movement of the plaintiff’s vehicle from the correct side of the road to the incorrect side of the road and into the path of Mr Bailey's semitrailer. According to the first defendant's submission, unless the circumstances, or other evidence, provide a logical and acceptable reason for the course taken by the plaintiff’s motor vehicle, the fact of her moving to the incorrect side of the road is strong evidence of contributory negligence. There was no acceptable explanation for the plaintiff's car following the course that it did, other than her failure properly to manage and control it.

166 I disagree with that submission. It amounts, in effect, to a plea of res ipsa loquitur by a defendant against a plaintiff. There was an acceptable explanation for what occurred. I have described it above.

167 However, I do consider that the plaintiff’s speed contributed to the accident and that it was negligent in the circumstances for her to have driven in excess of 40km/h. I have already decided that the speed signs were inadequate to warn the plaintiff of the risk that she encountered. Limited to the provision of information about speed, however, the signs were unambiguous and perfectly adequate. If the plaintiff was travelling, as I have found, at somewhere between 60km/h and 65km/h at the point when she lost control, she was clearly in excess of the posted speed limit of 40km/h, and therefore driving at, or slightly in excess of, the usual speed limit for the road at that location of 60km/h.

168 All of the expert evidence confirms that speed was a relevant contributing factor to the plaintiff's initial loss of control, to the behaviour of her vehicle from the point where control was lost until the point of impact with Mr Bailey's semitrailer, and to the extent of the damage caused by reason of the speed at impact. It is inaccurate to describe the plaintiff’s negligence in terms that she lost control of her vehicle or drove onto the incorrect side of the road. Nor in the context of a consideration of the extent to which her own negligence contributed to her loss and damage is it accurate to say that the plaintiff failed to drive according to the prevailing road conditions. Her negligence was driving in excess of the prevailing speed limit. The plaintiff’s accident may well have occurred at speeds lower than 60km/h or 65km/h. At those speeds, however, I am satisfied that the plaintiff negligently contributed to her own loss and damage.

169 I assess the plaintiff's contribution at 15%.

Cross claims

170 There are three cross claims. By the first cross claim the first defendant sued the second defendant seeking both damages for breach of contract and contribution or indemnity in accordance with s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.

171 The breach of contract claim relied upon clause 2 of "a written contract dated 14 August 2001" entered into between the defendants for the performance of resurfacing works at Lovedale Road on 10 May 2002: see par [30] above. The first defendant alleged that pursuant to that contract the second defendant was the superintendent of the works responsible for erection and maintenance of temporary warning signs required to be erected each day outside of the hours of work and after resurfacing works were completed by the first defendant, and responsible for the inspection of the works upon completion. Particulars of the alleged breach of contract by the second defendant, which it denied, were as follows:

(a) Failing to have any [sic] place temporary signage adequate to inform the plaintiff of the changed traffic conditions expected to be found at the site of the works.

(b) Failed to erect warning signs in accordance with AS 1742.10.

(c) Failed to direct the [first defendant] to undertake further works to remove aggregate, which was considered excessive.

(d) Approved the works carried out by the [first defendant].

172 By its defence to the first cross claim, the second defendant admitted the contract alleged and that it was the superintendent of the works responsible for erection and maintenance of temporary warning signs required to be erected each day outside of the hours of work and after resurfacing works were completed by the first defendant, and responsible for the inspection of the works upon completion. However, it denied that it was liable for breach of the contract. As appears below, the second defendant essentially relied upon the matters pleaded in its own second cross claim against the first defendant in answer to the first cross claim.

173 By that second cross claim the second defendant sued the first defendant alleging that upon acceptance by the second defendant of the first defendant's tender, the first defendant became bound by and was obliged to comply with obligations created by clause 6 of the tender. Clause 6 is in the following terms:

" 6. INSURANCES

(i) . . .

(ii) . . .

174 The second defendant alleged that by reason of the provisions of clause 6, the first defendant was liable to indemnify it in respect of any liability it may have to the first defendant under the first defendant's cross claim against the second defendant and any liability it may have to the plaintiff for damages. The second defendant alleged further that it had asked the first defendant to take over conduct on its behalf of its defence of the proceedings commenced by the plaintiff pursuant to the agreement to arrange insurance but that in breach of that agreement the first defendant refused to do so or to arrange for the conduct of the second defendant's defence to be assumed by and at the cost of the insurer.

175 By the third cross claim the second defendant sued Boral Insurance Pty Limited ("Boral Insurance") alleging that a contract of insurance between Boral Insurance and Boral Limited (of which the first defendant is alleged to be a subsidiary) extended indemnity to the second defendant in relation to the circumstances in which the plaintiff claimed to have been injured and in relation to the proceedings brought by the plaintiff against the second defendant, including the first defendant's cross claim against it. The second defendant alleged that by reason of clauses 1, 3.1 and 8 of the policy, the second defendant was an "assured" and that in breach of the contract of insurance, Boral Insurance has refused or neglected to indemnify the second defendant in respect of the plaintiff's claim. The second defendant alleged further or in the alternative that by reason of s 48 of the InsuranceContracts Act 1984, the cover provided by the policy issued by Boral Insurance extended to cover the second defendant.

176 The defence to the third cross claim denied that the contract of insurance between Boral Insurance and Boral Limited extended indemnity to the second defendant. It also denied the second defendant was an "assured" within the meaning of the policy that it had issued. It denied that in breach of the contract of insurance it had refused or neglected to indemnify the second defendant in respect of the plaintiff's claim. Finally, it denied that the cover provided by the policy that it had issued extended to cover the second defendant by reason of s 48. (The extent of these denials must be taken to be limited or qualified in light of the concessions referred to below).

177 It follows from my earlier findings, that the second defendant is not a joint tortfeasor within the terms of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The first defendant has not established that the second defendant was either in breach of the terms of its contract with the first defendant or in breach of any duty of care owed to it by the second defendant.

178 The second defendant made the following submissions with respect to its cross claims (and as I have understood it, to its defence of the first cross claim). It submitted that there were two concepts expressed within clause 6. First, that the first defendant agrees to accept the whole of the risk of carrying out the contract and secondly that it agrees to indemnify the second defendant. In construing the clause the first concept informs the purpose of the balance of the clause and assigns the risk to the first defendant. As Kitto J said in Davis v Commissioner for Main Roads (1967-1968) 117 CLR 529 at 533:

"The dominant purpose of the indemnity clause is announced by its opening words..."

179 The opening words of clause 6 are the same as the opening words in Davis. Menzies J, with whom Barwick CJ agreed, said at 537 that negligence of the party in the second defendant's position was the very thing to which the indemnity clause was directed.

180 The second defendant then submitted that the second concept has two aspects of operation. First, it provides for an indemnity in furtherance of the purpose of the assignation of the risk of the contract. Secondly, it provides for an indemnity, bearing in mind the party bearing the risk of the contract, where there is:

181 According to the submission, there is no issue in relation to (i). With respect to (ii), either the first defendant failed to sweep (something omitted to be done) or it placed too much aggregate on the road (something, in the sense of "anything", done). "Arising out of" would encompass performance of work generally under the contract and anything incidental to it. With respect to (iii), the first defendant either did or omitted to do the things mentioned intentionally or negligently. With respect to (iv), there could be no doubt that what was done or not done was done or not done in the course of the contract, which was the only explanation for the first defendant’s presence at the site.

182 The second defendant argued that it follows, therefore, that the ordinary and natural meaning of the clause entitles it to an indemnity. According to the second defendant, given the fact that the parties agreed that the risk should lie with the first defendant, that is by no means a surprising outcome. The outcome accords with Davis.

183 For reasons put in the primary case, the first defendant did a number of things and omitted to sweep the road. Even if none of those things was done or omitted negligently, they were certainly done intentionally. For example, spray was sprayed intentionally, aggregate was spread intentionally and the road was not swept intentionally. The existence of an intention with respect to those matters, which were matters within the contract, means that the loss or damage suffered is the subject of indemnity under clause 6.

184 Even if it were held that the plaintiff’s loss or damage did not arise out of those acts, nonetheless the second defendant has suffered loss by reason of the costs it has incurred in this action. Even in the absence of negligence on the part of either defendant, that loss attracts the indemnity called forth by clause 6. Therefore, irrespective of the outcome of the principal proceedings the second defendant is entitled to be indemnified by the first defendant under the contract, including having all of its costs paid.

185 Secondly, the second defendant argued that the words "[s]uch policy shall contain a cross liability clause and a principal’s indemnity noting the [second defendant] as principal and shall have a limited indemnity of not less than $10,000,000.00" are separated from the first obligation imposed by the sub-clause (that of effecting insurance covering injuries to third parties) by a full stop. The full stop signifies that a different subject within the broader concept of the matters being dealt with (public liability insurance) in the sub-clause is being dealt with in the following sentence (just quoted) which mandates that the policy obtained in compliance with the obligation in the first sentence shall have certain specified characteristics. The second sentence of the clause imposes a stand-alone obligation to nominate the second defendant as principal and to arrange cover of it in that capacity for $10m.

186 The concept of a contractor’s insurance covering the principal is one of widespread application. The imposition of a stand-alone obligation is consistent with the opening words of clause 6. In pursuit of the purpose of the clause, the first defendant’s obligation was to have the second defendant nominated as a principal. It is consistent with the opening words of clause 6 because the whole of the risk, including the premium risk associated with insurance for the principal, is to be borne by the first defendant.

187 The requirement that the first defendant is to undertake the whole risk of carrying out the contract is not subject to any words of limitation that exclude the second defendant's right to an indemnity in circumstances where the second defendant is held to have been negligent. The conjunction "and" between the opening expression assigning the whole of the risk of the contract to the first defendant and the indemnity invokes the two concepts discussed above. The first concept fully explains the reasons why first, the first defendant would be obliged to effect insurance under (iii) and secondly, why, as a stand-alone proposition, such insurance would be obliged to extend to cover the second defendant.

188 With respect to its third cross claim against Boral Insurance, the second defendant draws attention to the following provisions of the policy:

"1. The Underwriters will indemnify the Assured against their legal liability (including liability assumed by the Assured under contract or agreement) to pay damages (including claimant’s costs, fees and expenses) in accordance with the law of any country but not in respect of any judgment, award or settlement made within countries which operate under the laws of the United States of America and/or Canada …

The indemnity granted extends to:

189 The first defendant is a subsidiary of Boral Limited: exhibit K. It is therefore an assured under the policy. Boral Insurance promises to indemnify the assured by clause 1 and extends that promise by the terms of clause 3.1. Boral Insurance’s promise to indemnify is the subject of the first promise and its extension by clause 3.1.

190 Clause 3.1 of the policy involves two issues. First, there is the agreement between the assured and any party (the "agreement"). Secondly, indemnity is granted to any party to the extent that the agreement requires the other party to be indemnified under a policy of insurance. In the second defendant’s submission, the first defendant's argument confuses the contract for the performance of road works with the policy of insurance. The employment of the word "such" in reference to the "indemnity" is a reference to the indemnity provided under the policy. The policy indemnity is the object of the word "such": it is that indemnity that is extended to others, not any indemnity provided under the contract. Therefore, if the roadwork contract required the second defendant to be insured under a policy (which it did), indemnity is extended to it under the policy by operation of the policy.

191 Accordingly, the second defendant is an assured under the policy entitled to indemnity, including the payment of its costs.

192 Further, the second defendant relied upon s. 48 of the Insurance Contracts Act which provides:

" Entitlement of named persons to claim

(1) Where a person who is not a party to a contract of general insurance is specified or referred to in the contract, whether by name or otherwise, as a person to whom the insurance cover provided by the contract extends, that person has a right to recover the amount of the person's loss from the insurer in accordance with the contract notwithstanding that the person is not a party to the contract.

(a) has, in relation to the person's claim, the same obligations to the insurer as the person would have if he were the insured; and

193 The second defendant submitted that it is either specified or referred to in the contract and hence has a right to recover its loss. It is entitled to be indemnified in one or both of the ways nominated. According to the submission, the extent of the indemnity would include the second defendant's costs on an indemnity basis irrespective of the outcome of the primary proceedings, any apportionment or otherwise.

194 Counsel for the first defendant also represented the third cross defendant. No separate submissions were made by the third cross defendant with respect to the issues raised in the third cross claim on whether or not the second defendant is an assured under the policy entitled to indemnity, including the payment of its costs, or on the operation in this case of s 48 of the Insurance Contracts Act. Submissions were, however, made by the first defendant in response to the second cross claim and, so it would seem, in response to the third cross claim as well. To some extent this tended to conflate the matters raised in defence of the second and third cross claims. Those submissions were as follows.

195 The first defendant conceded that the second defendant was entitled to indemnity because clause 3.1 of the policy engaged the second defendant and extended the benefit of the policy to it. (This concession did not seek to discriminate between either of the bases upon which the second defendant claimed the benefit of the policy, i.e. because of the terms of clause 6 or the operation of s 48 of the Insurance Contracts Act 1984). It follows from that concession that the second defendant is entitled to indemnity under the policy, subject only to consideration of the following submissions.

196 The first defendant argued that entitlement to indemnity was limited. It argued that clause 6 provided for a risk allocation to the first defendant, then for an indemnity in favour of the second defendant, in each case for negligent acts by the first defendant, and then for insurance to be arranged for those two identified purposes. The provisions of clause 6 relating to insurance are prefaced by the words "for which purpose", which operate, according to the first defendant, so as to limit the nature and extent of the insurance required to be obtained. That view is said to be reinforced by clause 6 (a)(iii), which restricts the obligation to insure to injury or damage "caused . . . by the contractor or his employees".

197 The first defendant submitted that the insurance, if it is to benefit the second defendant at all, can only respond to a liability for a negligent act or omission of the first defendant for which the second defendant is liable vicariously, or if it is not the same thing, because the second defendant is fixed with a non-delegable duty of care. The obligation of the first defendant pursuant to clause 6 is said to be the protection of the second defendant from claims arising out of or by reason of the negligence of the first defendant, and so to obtain a policy which includes "a Principal’s indemnity noting the [second defendant] as Principal . . .". Whilst conceding that what is meant by "Principal’s indemnity" is not entirely clear, being neither defined nor a term of art, clause 3 of the policy extends cover to the first defendant "but only to the extent required by such agreement to grant such indemnity".

198 In the first defendant's submission, this provides a very limited extension of cover. It is a cover in respect of loss or damage for which the first defendant is legally liable to a third party and which might also be visited upon the second defendant. The cover provided by the policy does not, on the first defendant's argument, extend to the second defendant's own negligent acts.

199 On the question of whether or not the second defendant was entitled to an indemnity from the first defendant having regard to the terms of clause 6, the first defendant again argued that the second defendant could not rely upon clause 6 only if it was, or at least to the extent that it was, itself negligent.

200 In the events that occurred, resolution of this dispute in the present case is of theoretical interest only. I have found that the second defendant was not negligent and no part of the first defendant's legal liability to the plaintiff was a liability that might also be visited upon the second defendant.

201 If it had been necessary to decide the issue it would have been my opinion that this is a case like Davis v Commissioner for Main Roads (supra) in which the contractor undertook the whole risk of carrying out the contract. The terms of clause 6 are clear and unambiguous. In the circumstances of the present case the first defendant undertook the whole of the risk of carrying out the contract and was required by the clause to hold the second defendant indemnified against, relevantly for present purposes, the costs of defending or settling any action or claim. This all arose out of what the first defendant did or omitted to do "in the course of the Contract".

202 The first defendant referred to Lipman Pty Ltd v McGregor & Ors [2004] NSWCA 6. However, Gzell J at [31] said:

This is not a case like

Davis v Commissioner for Main Roads.

203 In Valkonen & Anor v Jennings Constructions Limited & Ors (1995) 184 LSJS 87 the Full Court of the Supreme Court of South Australia said at [34]:

"There may be good practical reasons for providing that one party to a contract shall be indemnified by the other against any liability the former might incur to a third party, even if it is caused by his own fault, and where, as commonly happens, the obligation to indemnify is to be secured by insurance there is no sound reason for expecting the contract term to conform with an arbitrary judge-made textual requirement before its provisions will be given their natural operation."

204 In my opinion, the present case is no different. See also State of NSW v Tempo Services Ltd [2004] NSWCA 4 and National Vulcan Engineering Insurance Group Ltd v Pentax Pty Ltd [2004] NSWCA 218.

Orders

205 I have not yet had the benefit of argument on the question of costs. I propose to make orders 1 and 2, which in accordance with my findings would appear to be uncontroversial, but to receive argument with respect to the balance of the orders set out below:

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Citations

Browning v Bitupave Limited [2008] NSWSC 19

Most Recent Citation

PJS v Shire of Koorda [2013] WADC 162

Cases Citing This Decision

2

Algeri v Pennington [2016] WADC 41

PJS v Shire of Koorda [2013] WADC 162

Cases Cited

7

Statutory Material Cited

4

Lipman Pty Ltd v McGregor [2004] NSWCA 6

State of New South Wales v Tempo Services Ltd [2004] NSWCA 4

National Vulcan Engineering Insurance Group Ltd v Pentax Pty Ltd [2004] NSWCA 218

CITATION:	Browning v Bitupave Limited [2008] NSWSC 19
HEARING DATE(S):	20 - 28 August 2007
JUDGMENT DATE :	31 January 2008
JUDGMENT OF:	Harrison J
DECISION:	1. Verdict for the plaintiff against the first defendant for $2,140,000 (i.e. $2,400,000 less 15% for contributory negligence). 2. Order the first defendant to pay the plaintiff's costs. 3. Judgment for the second defendant on the plaintiff's claim. 4. Dismiss the first cross-claim with costs on an indemnity basis. 5. Judgment for the second cross-claimant on the second cross-claim with costs on an indemnity basis. 6. Declare that the third cross-claimant is entitled to be indemnified by Boral Insurance Pty Limited in respect of all or any costs incurred or thrown away by the third cross-claimant in its defence of the plaintiff's claim and the first cross-claim and in its prosecution of the second cross-claim. 7. Order the third cross-defendant to pay the third cross-claimant's costs of the third cross-claim on an indemnity basis.
CATCHWORDS:	NEGLIGENCE – motor vehicle accident – collision between sedan and semitrailer – plaintiff’s sedan crosses onto wrong side of road at site of new roadwork – plaintiff loses control on gravel – road scheduled to be swept on day of accident - whether accident caused by fault of council or its contractor in placing or failing to remove excess gravel – adequacy of precautions and warning signs - CONTRIBUTORY NEGLIGENCE – speed limit of 40km/h – plaintiff travelling in excess of 60km/h immediately prior to loss of control – plaintiff 15% at fault - EVIDENCE – photographs taken at scene of accident – question of whether photographs depict presence of excess gravel or windrows – differing lay and expert opinions – extent to which court may interpret photographs when disagreement exists - CONTRACT – indemnity – obligation upon contractor to indemnify council secured by insurance – whether contractor assumed responsibility for liability of council to plaintiff even if caused by fault of council – council not at fault – issue discussed but unnecessary to decide - INSURANCE – Insurance Contracts Act s 48 – contractual obligation on contactor to effect insurance – whether council an assured within terms of policy
LEGISLATION CITED:	Civil Liability Act 2002 Insurance Contracts Act 2004 Law Reform (Miscellaneous Provisions) Act 1946 Roads Act 1993
CATEGORY:	Principal judgment
CASES CITED:	Davis v Commissioner for Main Roads (1967-1968) 117 CLR 529 Jones v Dunkel (1959) 101 CLR 298 Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200 Lipman Pty Ltd v McGregor & Ors [2004] NSWCA 6 National Vulcan Engineering Insurance Group Ltd v Pentax Pty Ltd [2004] NSWCA 218 Short & Anor v Barrett (New South Wales Court of Appeal, 5 October 1990, unreported) State of NSW v Tempo Services Ltd [2004] NSWCA 4 Stillwell Trucks v McKay [2002] NSWCCA 292 Valkonen & Anor v Jennings Constructions Limited & Ors (1995) 184 LSJS 87
PARTIES:	Annette Trudie Browning (Plaintiff) Bitupave Limited t/as Boral Asphalt (First Defendant) Cessnock City Council (Second Defendant) Boral Insurance Pty Limited (Third Cross Defendant)
FILE NUMBER(S):	SC 20137 of 2005
COUNSEL:	P J Doherty SC with P Biggins (Plaintiff) J E Maconachie QC with D Mallon (First Defendant and Third Cross Defendant) R Sheldon (Second Defendant)
SOLICITORS:	Whitelaw McDonald (Plaintiff) Griffin Hilditch Lawyers (First Defendant and Third Cross Defendant) Phillips Fox (Second Defendant)