Burch v Shire of Yarra Ranges

ail

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4392 of 2002

FIONA BURCH

Plaintiff

SHIRE OF YARRA RANGES

and

QUALITY ROADS PTY LTD ( ACN 073 550 946)

Defendants

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August, 1, 2, 3, 6 and 7 September
DATE OF JUDGMENT:	4 November 2004
CASE MAY BE CITED AS:	Burch v Shire of Yarra Ranges and Anor
MEDIUM NEUTRAL CITATION:	[2004] VSC 437

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Torts – Transport accident – Claim by dependants – Claim against municipality and contractor to whom certain roadworks had been outsourced – Highway authority – Whether contractor a highway authority – Whether either defendant owed a duty of care – Formulation of duty of care by reference to road user taking reasonable care for own safety – Whether duty of care imposed upon highway authority non-delegable.

Torts – Transport accident – Claim by dependants – Contribution between defendants – ss. 23B(1), 24(2), Wrongs Act 1958.

Contract – Two defendants liable to plaintiff – Whether municipality entitled to indemnity from contractor for latter’s failure to effect and maintain public liability insurance in their joint names – Whether municipality entitled to indemnity under indemnity clause in contract.

Torts – Damages – Transport accident – Claim by dependants – Assessment of damages beyond cap amount – Compensation received – Whether reduction of damages by amount of compensation paid from damages as assessed or from cap amount – Transport Accident Act 1986, s. 93(7)(8)(9)(11)(11A).

Torts – Damages – Transport accident – meaning of "the care of a child" – Transport Accident Act 1986 ss. 93 (12A), 60(2)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. O'Dwyer, QC with Mr J. Riordan	Slater & Gordon
For the First Defendant	Mr R. Stanley, QC with Mr N. Murdoch	Hunt & Hunt
For the Second Defendant	Mr G. Lewis, SC with Mr C. O'Neill	Phillips Fox

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Table of Contents

The Claim

The Fatal Incident; a preliminary description

The Floodway

The Area in the General Vicinity of the Floodway

Events Preceding Construction of the Floodway

The Shire; and places subject to flooding

The Hazard

What the defendants knew or ought to have known about the dangers of the floodway before 13 November 1998

The Events of 13 November 1998

The Aftermath of the Incident

Liability

The cases advanced by the parties
The proper approach
Duty and Breach

Causation

Contribution/Indemnity

Sections 23B(1), 24(2) of the Wrongs Act
Public Risk Insurance
Clause 8.6.1 of the General Conditions

Conclusion

Damages

Deceased's likely employment and earnings
The plaintiff's likely earnings

Services

Assessment

The Statutory Cap on Damages. Comcare

Proportionate Dependency

Judgment and Orders

HIS HONOUR:

The Claim

Fiona Burch, the plaintiff, brings a claim under Part III of the Wrongs Act on behalf of herself and two children – Teaghan born 12 April 1995 and Jackson born 11 December 1998 – arising out of the death of her late husband, Michael. He died on Friday 13 November 1998. Teaghan is the plaintiff’s daughter by an earlier, short-lived marriage. Jackson is the son of her union with Michael. He was born, as the dates show, about a month after his father’s death.

The defendants are the Shire of Yarra Ranges (“the Shire”) and Quality Roads Pty Ltd (“Quality”). The Shire had a responsibility, in the first instance, for the construction, maintenance, and repair of roads, bridges and the like within its boundaries, and for taking measures to ensure the safety of the travelling public thereon. According to its argument, however, as at November 1998 it had contracted out those functions to Quality. The contract[1] pertained to the northern region of the Shire. Appendix 12 to the contract shows that the northern region occupied substantially more than half the area of the Shire.
[1]Exhibit 1D3.

Mr Burch died when his vehicle was swept off what was variously called a ford, floodway or culvert (conveniently, “the floodway”) which traversed Black Springs Road, Wonga Park. It was common ground, I note immediately, that the claim was governed by the provisions of the Transport Accident Act 1986 (“the Act”) The road and floodway were within the Shire. The plaintiff claims that each defendant breached a duty of care which it owed her husband as a user of the road and floodway, such breaches being a cause of his death. The defendants respectively deny breach of any duty; and say that if there was any breach it was the breach of the other. There are contribution proceedings, to the detail of which I will later refer.

Issues of liability and contribution aside, a number of matters were debated in connection with quantification of the claim – that is, in the event that the plaintiff established an entitlement to damages against one or both defendants. Nothing need presently be said about those matters.

The Fatal Incident; a preliminary description

Mr Burch died when attempting to cross the floodway in his Nissan Pulsar motor vehicle. Evidence to which I will later refer shows that the attempted crossing took place at about 3 pm. There were no eye witnesses to the incident. Black Springs Road, in the vicinity of the floodway, runs approximately east/west. There is no direct evidence of the direction in which Mr Burch’s vehicle was travelling immediately before the incident, but the probabilities are that it was travelling east, towards the Chirnside Park Shopping Centre. That is because it was a Friday, that was banking day for Mr Burch, apparently he did his banking at Chirnside Park, the shopping centre was accessible by Black Springs Road and was a distance east of the floodway, and documents were found in the car which showed that Mr Burch had not yet done his banking business that day.

The Floodway

The floodway was constructed in 1991 by the Shire of Lilydale. It was one of four shires which by amalgamation in about late 1994 became Shire of Yarra Ranges. By virtue of the amalgamation Shire of Yarra Ranges became successor to the liabilities of the former shires.

The floodway took the form of a depression in the roadway over which, at times, water from Brushy Creek flowed. Underneath the floodway, and set at right angles thereto, were three concrete pipes, each said to be 900 millimetres in diameter. For most of the time they were capable of carrying the water which flowed down Brushy Creek – it flowed from south to north - without water flowing across the surface of the floodway.

The nearest point of the floodway was 95 metres east of a T-intersection formed by Black Springs Road and Brushy Park Road. The latter was and is a sealed road which runs approximately north/south in the vicinity of the intersection.

The road surface of Black Springs Road on either side and in the near vicinity of the floodway was dirt and gravel. Otherwise, it was a sealed surface.

On either side of the floodway – that is, to its east and west – the contour of Black Springs Road fell generally towards the floodway.

The width of the floodway – that is, from north to south – varied between 8 and 9.6 metres.

The length of the floodway – that is, from east to west – was 15.2 metres.

20 metres north of the floodway, and so downstream of it, there was a farm crossing over Brushy Creek. It was a dirt crossing laid over a barrel drain which was 2 metres in diameter. The crossing was undoubtedly present for a considerable number of years before 1998. A letter from the then Melbourne and Metropolitan Board of Works (“the Board”) to the Shire of Lilydale dated 7 June 1991[2] suggests that the farm crossing was present at that time. But it is only necessary to conclude, as I do, that it was present for a number of years before 1998.
[2]Exhibit 2D2.

As at 13 November 1998, to the east and west of the floodway, there was a sign, coloured white, which said in black lettering
“Road subject to
Flooding
[3]See exhibit A, photographs 2, 3, 18 19.
Indicators show depth”[3]
Pausing for a moment, by the letter to which I referred a few moments ago the Board made an offer, subject to conditions, to fund part of the cost of constructing the floodway. The Shire Council, by resolution of 11 June 1991[4], accepted the Board’s offer of assistance “on the basis that Council also accepts the conditions under which this offer is made”. In its letter, the Board, amongst other things, said this:
[4]See exhibit 2D3.

“As the depth of water over the road may be significant on many occasions, signs shall be placed on both approaches to the crossing (on sufficiently high ground) stating the following:
‘Warning: road crossing may be unsafe
when flooded – indicators show depth.’

These signs shall be accompanied by at least one flow-depth indicator on each approach to the crossing, located so that they are clearly visible.”

The wording on the signs which were erected did not, then, correspond with the wording required by the Board’s letter. Specifically, there was no mention that the crossing might be unsafe when flooded.

The signs aside, as at 13 November 1998 there were two depth markers. They were located at about the mid-point of the floodway, and on its northern and southern sides. They were set up so as to show the depth of water above the surface of the floodway in 200 millimetre gradations. The markers were red-lined at about 1.8 metres[5].
[5]See exhibit A, photographs 3, 4 and 5.

There was no fencing on either side of the floodway at the pertinent time. I note that one of the conditions imposed by the Board, and accepted by the Shire of Lilydale, was as follows:

“Some form of fencing delineating the extent of the crossing ie: on the upstream and downstream headwalls is also required so that the extent and location of the road can be determined when the freeway is underwater (sic). This fencing shall be an ‘open’ type to allow the free passage of floodwaters.”

The Area in the General Vicinity of the Floodway

I have already generally described the two roads which formed the intersection, and have said that the shopping centre was accessible by Black Springs Road, it being some distance to the east of the floodway. This should be added: For part of the distance between the floodway and the shopping centre, to the south of Black Springs Road and connecting with it, there was in 1998 a housing estate.[6] On the northern side of Black Springs Road, however, there was rural land for about two-thirds of the distance between the Brushy Park Road intersection and the shopping centre[7].
[6]Some of it can be seen, apparently, in exhibit A, photographs 11 and 19.
[7]See the roadmap which is part of exhibit A, and photograph 10 in that exhibit.

The evidence shows that in 1998 Black Springs Road carried traffic to and from the shopping centre and to and from the housing estate. The road was also used by commercial and agricultural vehicles. There is no reason to think that Mr Munday and Mrs Santilli, witnesses at the trial, were two of only a few users of the road. Photographs put into evidence[8] tend in favour of a conclusion that the road was regularly used by vehicles of different kinds. Note also the evidence of opposition over a number of years to road closure; of which more later.
[8]Exhibit A, photographs 9, 10, 11, 12 and possibly 17.

Events Preceding Construction of the Floodway

Before 1991, there was no floodway, merely a creek bed traversing Black Springs Road.

The evidence shows that there were several attempts by the Shire of Lilydale to close the road. One such attempt was in late 1980. In December that year the Shire Engineer wrote to a local committee, telling it that the Shire had decided the creek crossing could be dangerous to the public.

The Shire’s attempt to close the road at that time was unsuccessful. It was resisted by local residents, emergency services representatives, and persons who wished to use Black Springs Road to travel to the shopping centre.

A second attempt by the Shire to close Black Springs Road was presaged by a Council resolution in 1990. Again there was opposition to closure. The perceived dangers of the creek crossing were met, in the end, by the construction of the floodway; and the road stayed open. The floodway was constructed, as I have said, with advice and some funding from the Board.

At least by 1996 the Shire (by then the first defendant) had decided that a bridge should preferably be erected in place of the floodway. But significantly because of financial pressures no bridge was erected immediately. The project was given some funding priority, inferentially after November 1998. A bridge was constructed, and was opened in early 2000.

The Shire; and places subject to flooding

The area of the Shire of Yarra Ranges is about 2,500 square kilometres, of which 50 percent is forest, about 20 percent is urban, and the balance is rural.

Within the Shire, in 1998, there were about 2000 kilometres of road. But in all that distance, according to the evidence of Mr Ross, called for the Shire, there were only four floodways, three of which were on Brushy Creek. Of those three floodways, the one on Black Springs Road was furthest upstream. The others were on Paynes Road and Lower Homestead Road. There was no obstruction downstream of the other floodways as was created by the farm crossing and barrel drain in the case of the Black Springs Road floodway.

Each of the Brushy Creek floodways, it appears, was subject to inundation at times. That was to be expected. But the evidence suggests that the Black Springs Road floodway alone presented a substantial danger to traffic when significantly inundated; a danger which had manifested itself on a considerable number of occasions between 1992 and 1998. Of this danger, more later.

The three Brushy Creek floodways and the other floodway[9] apart, there was evidence that at times two roadways in the Shire – or, just possibly, in its northern region – flooded. This happened because culverts were inadequate. The evidence suggested that flooding did not occur to any great depths at those locations.
[9]It involved the Olinda Creek at Hull Road. See the evidence of Mr Ross at T 205, though compare his evidence at T 231 lines 15 – 23.

As at 1998 the use of land in the vicinity of the three floodways was somewhat different. The area in the vicinity of the Paynes Road floodway was essentially rural. That was also the case in the near vicinity of the crossing on Lower Homestead Road. But that road did provide one access to the Heritage Golf and Country Club. Those situations were somewhat in contrast with the partly built-up area to the south of Black Springs Road east of the floodway, and the use of that road for access to the housing estate and shopping centre.

In all, the evidence impels conclusions that although in 1998 the Shire was 2500 kilometres in area, and although within it were 2000 kilometres of road, nonetheless very few places in the Shire[10] were subject to flooding; and of the few places that were known to be subject to flooding, the Black Springs floodway alone presented particular dangers, most probably because of the effect of the downstream obstruction.
[10]or at least in its northern region.

The Hazard

Philip Munday gave graphic evidence of instances on which Brushy Creek flooded across Black Springs Road in the period between 1992 and 1998 so as to cause property damage and a risk of personal injury to road users. He has been for many years the proprietor of panel beating businesses in the eastern suburbs; and he operated tow-trucks between 1992 and 2000. Between 1994 and 1998 he also lived at an address which gave access to Black Springs Road, and he regularly used that road.

The witness said that each year the creek rose over the floodway a number of times. Sometimes there was a lot of water, a flood.

Between 1992 and 1998, he said, tow-trucks which he operated removed about 15 cars from Brushy Creek. He had attended himself on maybe half a dozen occasions – mainly between 1994 and 1998, when he was living in the vicinity. On each occasion, he said, the vehicle had finished up near the barrel drain – that is, some 20 metres north of the floodway. On one occasion that he had attended, a family had been caught in a vehicle which had been swept off the floodway and carried down to the barrel drain.

On some occasions before 13 November 1998, according to Mr Munday’s evidence, the road had been closed at the floodway after his arrival. That had been done by the erection of signs bearing words such as:
“Water over road”
or
“Road closed”
On occasions he had observed persons putting the signs out. The protocol was that the police would radio D24 and ask that contact be made with the Council.

I see no reason to doubt the reliability of Mr Munday’s evidence of what he saw and did. His evidence was not attacked as being false. The Shire’s position was rather that it had not become aware of the incidents which he described, although its relevant staff knew that the floodway would inundate at times. As to that position, more later.

The hazard revealed by Mr Munday’s evidence was, in my opinion, very considerable; and on the evidence a danger unique within the Shire. It was a danger not simply, in a semi-suburban area, that a vehicle might stall when attempting to cross a low lying point covered by water, but that the vehicle might be swept off the roadway and into a vortex at the point of the farm crossing and barrel drain.[11] Mr Munday described the situation graphically:

“… they end up nose first or backwards down into that drain because they are sort of sucked through like a plug.”[12]

Such a situation plainly created a significant risk to life as well as to property.

[11]Compare photographs 7, 15 and 16 in exhibit A.

[12]T 94.

A deal of evidence was adduced for the defendants to suggest that the water level at the floodway could rise and fall quickly; the invited inference being, perhaps, that a dangerous situation could develop quickly, without time for remedial action. The evidence[13] showed, in my opinion, that at times there could be a rapid rise and fall in the water level, and that this was known to George Miller – a man who was the Shire of Lilydale’s main employee in the field at one time, and who later became works supervisor with Quality.[14] The evidence showed also that such a rise and fall was predictable if there was substantial rain in the catchment area. But I do not accept that rapid rise and fall were shown by the evidence to be the invariable hallmarks of flooding at Black Springs Road.[15] In any event, insofar as the Shire or Quality knew that there was a prospect of rapid rise in the water level at Black Spring Road in the event of substantial catchment rainfall, such knowledge or belief provides one aspect of the background against which to consider what, if anything, one or the other should have done when their employees knew that there had been such rainfall.

What the defendants knew or ought to have known about the dangers of the floodway before 13 November 1998

[13]See, for example, Mr Munday T 95, T 99.

[14]And also, though indirectly, by Mr Ritchie, who in 1997 and 1998 was an asset manager employed by the Shire. See T 245, line 28 – T 246. line 27. Relevant evidence given by Mr Miller is at T 294, lines 25-30, and T 299, line 31 - T 300, line 4.

[15]See, for example, Mr Munday T 104, line 27 – T 105, line 22, T 106 lines 19-28; and Senior Constable Clooney, T 124, lines 17-18.

Mr Munday’s evidence was that water inundated the crossing in a significant way, as a flood, a few times each year. It was on such occasions that the incidents occurred in which vehicles had been swept off the floodway. It will be recalled that on his account he had personally attended about six such incidents, mainly between 1994 and 1998; and that on a couple of those occasions he had observed men putting out temporary signs.

The contract between the Shire and Quality[16] is dated 15 January 1998. But it commenced on 28 April 1997.[17] It is possible, then, that the men seen by Mr Munday were either Shire or Quality employees – because Mr Munday understandably did not identify those instances by reference to the date of commencement of the contract. If he was correct about saying that he saw “Road Closed” signs put out, the probability is that the men were Shire employees; for according to the evidence Quality employees very rarely put such signs out. But I think that Mr Munday’s evidence about that matter was somewhat speculative.
[16]Exhibit 1D3.
[17]See letter Shire to Quality 17 March 1997, incorporated into the contract, and Annexure to General Conditions of Contract, p. 48 of Vol. 1 of contract documents. Mr Miller, who began his employment with Quality on 1 April 1997, gave evidence that the contract began after that date.

Whoever it was who attended on the occasions described by Mr Munday, such persons, unless they were extraordinarily inattentive, could hardly have failed to see what had happened. At least the presence of a tow-truck would have invited a second glance; and the presence of a vehicle in the flood waters only 20 metres from the floodway should not have gone unseen. Remembering that Mr Munday only attended the scene on about six of the approximately 15 occasions of which he gave evidence, bearing in mind the fact that such incidents occurred over the period 1992-1998, and bearing in mind also the fact that, by reason of a tow-truck allocation system, Mr Munday’s tow-trucks may not have been despatched to all incidents at the floodway, it is extremely difficult to accept – and I do not accept – that Council and Quality employees did not have knowledge before 30 November 1998 of incidents of the kind which he described. It is surely improbable that employees of the Shire and Quality did not attend on occasions other than those observed by Mr Munday; and it is surely improbable that in each such instance the employees remained oblivious to what had happened.

Concerning the improbabilities just mentioned, I should refer to the evidence given by Senior Constable Clooney. He said that he regularly inspected the area when there had been rainfall. It might be half a dozen times during a winter. On two-three occasions he had notified the Shire that signs should be put up; and they were put up.

Senior Constable Masterman, also, gave some pertinent evidence. He said that before the bridge was erected, to his knowledge, the crossing used to flood at least two to three times every winter. Over the years he took a few calls in relation to flooding. He contacted the Shire two or three times during the course of a winter, notifying it that the road was flooded and that signs should be erected.

When Quality took over its contractual responsibilities, the evidence shows, the Shire remained the first contact point. If a request for action was made, the Council would – or should – have passed it on to Quality. The likelihood is not simply that the Council knew of police reports of flooding and requests for remedial action that were made over the years, but that it conveyed requests for action, after April 1997, to Quality.

The likelihood, further, is that requests for remedial action were answered by employees of the Council, later Quality, attending the location; that is, quite apart from any self-initiated attendances. Any such attendances, at times of significant flooding, should have conveyed something of the danger to an observant employee. But beyond that, occasions of significant flooding, when a request was made for remedial action, were most likely to be occasions when an incident of the kind described by Mr Munday occurred. It is theoretically possible that on no occasion when employees attended in response to a police request had such an incident occurred; but evidence given by Mr Munday about the protocol that was followed, and the arrival of employees,[18] confirms that the probabilities lie the other way.
[18]T 94, line 26 – T 95, line 13.

The Shire called no one who had a hands-on role to say what was known about the dangers of the crossing in the period 1991 – November 1998, and particularly the incidents described by Mr Munday. Rather, evidence was given by Messrs Ross & Ritchie.

The former has been employed by the Shire since February 1997 as Director of Physical Services. His area of responsibility has included and does include roads, drains and traffic management. According to his evidence, before 13 January 1998 he knew that there was a floodway, but not its history of flooding.[19] There was a Council file pertaining to Black Springs Road. There was no record on any Shire file of the incidents described by Mr Munday. There was knowledge only of stalled vehicles.[20]
[19]T 209.
[20]T 204-205.

In cross-examination, Mr Ross referred on a number of occasions to what he called a customer requests system[21]. The gist of the system was that if a complaint, report or request was made by a resident or the police, then it was recorded; but if an employee made a pertinent observation, there was no system of recording it.[22]
[21]See example, T 211, lines 24-30.
[22]See example, T 225, line 26 – T226, line 13; see also T 233, line 30 – T 234, line 8.

Mr Ritchie gave evidence that in 1998 he was “the manager of asset management.” He reported to Mr Ross. He had responsibility for two areas in the northern region of the Shire, the region to which the contract between the Shire and Quality related. He had been an employee of the Shire of Healesville, and became an employee of the first defendant when amalgamation occurred. He had a number of different responsibilities until becoming manager of asset management in January 1997. Before November 1998 he was unaware of any problems or difficulties at the floodway. An area works supervisor had told him, before November 1998, that normally the water went up and down quickly. In cross-examination he said that although he did not know, historically, what level the water could reach, it was his view that the level could be dangerous for passing traffic.[23]
[23]T 252, lines 9-18.

I accept the evidence given by Mr Ross that no Shire file recorded any of the incidents described by Mr Munday. I accept also the more general evidence given by Messrs Ross and Ritchie that they did not know of any incidents, problems or difficulties in respect of the floodway. In circumstances where I am satisfied that some incidents such as described by Mr Munday were observed by Shire and later Quality employees, the fact that there was no Shire record of the same reflects a gravely deficient record-keeping system. The system meant that the Shire managers, at least, were disabled from an understanding of the particular danger of the crossing when in flood. In consequence, when the contract commenced, what could and should reasonably have been mentioned to Quality as a hot-spot went unremarked.

Quality called Mr Miller, employed as its contract supervisor since April 1997. Earlier on, he had been employed by the Shire of Lilydale and the first defendant. As I understand his evidence, he was 13 years employed by Lilydale, finishing up as works officer. Then he worked 18 months with the first defendant, took a redundancy package, worked 18 months on his own account, then took up employment with Quality. As works officer with the former shire and as contract officer with Quality, his work was essentially the same: supervising men working on the roads. On occasions, when employed by the Shire of Lilydale, he had been responsible for the area which included the floodway.[24]
[24]T 316.

Mr Miller gave evidence that he knew flood prone areas in the Shire as at November 1998. He specified the three floodways and two roads where culverts could not take the water. He knew that water could rise quickly at the Black Springs Road floodway. It subsided, he said, very quickly. He had not known, before this day, of cars being swept off the floodway. He had known of cars becoming bogged in the creek bed before the floodway was constructed.[25] He agreed that water could back up if the volume of water could not go through the barrel drain.
[25]T 302.

It appears from his evidence that Mr Miller, when employed by the Shire of Lilydale, had not always been responsible for the area which encompassed the Black Springs Road floodway. For that reason, or because he had different duties after the amalgamation, or because employees may not have reported incidents to him, or for a combination of those reasons, it is possible that he did not learn of the occurrence of incidents such as Mr Munday described before he left the Shire’s employ. It is also possible that incidents which probably occurred after April 1997 were neither seen by or reported to him. Those possibilities, I must say, strain credibility. Nonetheless, I accept his evidence, which in turn emphasises the defects in the Shire’s reporting system; and which shows also that Quality must have had a defective reporting system. That must surely be so when a senior man in the field for both entities was left uniformed about a very significant hazard to the travelling public.

The Events of 13 November 1998

It had rained fairly heavily on the night of 12-13 November. There had been “a lot of rain coming up to that day.” Under those circumstances, said Mr Miller, there were several roads in the Shire which flooded. Black Springs Road was one such.[26]
[26]T 273, lines 3-9.

Mr Miller went to the floodway at about 11.30 am.[27] He noted that water was

“lapping on the lower side of the ford, on the downstream side.”[28]

[27]Or between 11 and 11.30: T 292.

[28]T 273.

It was about 200 mms on the depth indicator. He decided that it was not a problem and went off to inspect other flood-prone areas. He decided to come back that afternoon to make another check. He knew that water could come up quickly.

Also at about 11.30 am, Senior Constable Clooney attended the floodway. He did so because of a complaint made by a member of the public. There was water over the ford to a depth of about 200 mms. He radioed D24, the protocol being that D24 would then contact the local police station. His message was that the Shire be asked to come out and put up signs. He was concerned because of the depth of the water and his knowledge that it did rise.

Senior Constable Masterman gave evidence of taking a call from D24 informing him that the road was flooded, and asking him to contact the Council to arrange signs. He did contact the Council, and received a positive response. He agreed that he should have logged the outgoing call, and that he had not done so.

The import of evidence adduced for the Shire was that it had no record of the call that Senior Constable Masterman said he had made. Notwithstanding that he did not log such a call, it seems probable to me that he made it. It concerned an area which he knew to be a problem, and in respect of which he had previously contacted the Shire. The Shire’s request tracking system should have generated a written record had a call been made; but the absence of such a record is not conclusive. The evidence generally did not impress me as to the efficiency of the Shire’s system of record-keeping.

The late Mr Burch commenced work, at the Dynon Road yards, at 6 am. The shift probably ended at 2 pm. He, the plaintiff and Teaghan were then living at 8 Kendall Court, Croydon Hills. That is south-west of Black Springs Road. They had been living there only since May 1998.

It is unknown by what route Mr Burch travelled from his workplace to Black Springs Road. There is no indication that he called home in the interim between ceasing work and the occurrence of the fatal incident. What is known is that, having probably ceased work at 2 pm, he used his mobile telephone to make a call to his father in law, Mr Trevor Hill, at 3.01 pm. He said this:

“Trevor, I’m in a spot of bother mate. I’m on the back road and the car is sinking.”[29]

[29]T 114.

In cross-examination, Mr Hill said that he believed the message ended:

“Because of some external factor because of the sound and the way of the voice,… there’s a definite indication when he said his car is sinking of distress at the time.”[30]

[30]T 120-121.

Evidently, the call was made when Mr Burch’s car was in the water. It is a reasonable inference that it was made immediately prior to and at the time when the car was swept into the mouth of the barrel drain, at which latter moment the fatal event occurred.

At between 3 and 3.20 pm, on his estimation, Mr Munday was driving north along Brushy Park Road. He said that:

“The road was flooded again and there was a car in the drain.[31]

The vehicle was against the barrel drain.

[31]T 95.

Five minutes or so later he returned. There were police on the scene, to the east of the floodway. The car was nose first into the drain. No temporary signs had been erected at that stage.

As a result of conversation with the police he called for one of his tow-trucks. It arrived and eventually, with difficulty, the car was removed.

Mrs Donna Santilli drove home from work at the shopping centre on the afternoon of 13 November. She thought that it was between 3 and 3.30 pm. She drove along Black Springs Road, as was her custom. She saw water on the road. She did not think it was very deep. She slowed down and drove on. Her car stalled. Water started coming into the passenger compartment. She saw men nearby. She made contact. The pulled her vehicle out. It was after this that one of the men pointed out Mr Burch’s car, which was down at the barrel drain.

Sergeant Docherty of Lilydale police attended the area after the Lilydale station received a D24 message

“advising of a car that was across the crossing on the road.”[32]

Probably this was a reference to Mr Burch’s vehicle.

[32]T 133.

In any event, Sergeant Docherty said he imagined that he would have been at the scene before 4 pm. He observed the car in the barrel drain. When he arrived, he noted that the water was 400 mm deep by the depth markers. There were signs that the level had been higher. When he arrived, one temporary sign had been erected. It said “water across the road”.

Mr Miller gave evidence of returning to the area, to the east of the floodway, at about 3.30 pm. Water was flooding across the road at about 800 mm. He erected a “water over road” sign. He had been back to the depot and picked up signs. He did not see Mr Burch’s car. He drove down to Paynes Road, crossed Brushy Creek at the floodway there, inspected the floodway at Lower Homestead Road, and then returned to the Black Springs Road floodway, by now on its western side. After his arrival, he put up a “water over road” sign. There had been no flooding at either of the other floodways. He estimated that his trip took about 15-20 minutes.

Mr Hill gave evidence of attending the scene at about 4.30 pm. A tow-truck had arrived and preparations were being made to hook up the car and pull it out of the drain. At that time the water was below the surface of the floodway.

There are some difficulties in assembling the precise sequence of events on the afternoon of 13 November. But I consider it probable that the sequence was as follows:

·At about 3.01 pm, Mr Burch’s car was swept off the floodway.
·Soon after 3 o’clock some person observed Mr Burch’s car in Brushy Creek, and made a report to the police. That person was neither Mr Munday nor Mr Miller. Having regard to the conversation which Mrs Santilli said she had with the men who assisted her, it is at least possible, if not probable, that it was one of those men who rang the police.
·Mrs Santilli’s vehicle stopped in the floodway at about 3.15 pm. She saw no temporary sign on the eastern side of the floodway because she arrived before Mr Miller. She obtained assistance, but not immediately. Nonetheless, she had departed before Mr Munday drove past, which I think must have been at about 3.30 pm.
·Soon after Mr Munday drove past, Mr Miller arrived at the eastern side of the floodway. He put out a temporary sign, and then left.
·Not long before 4 pm, Sergeant Docherty arrived at the eastern side of the floodway. He noted the presence of the temporary sign that had been put out by Mr Miller.
·Soon after Sergeant Docherty’s arrival, Mr Munday returned to the scene. He was on the western side of the floodway. He saw no temporary sign, because as yet no such sign had been erected on that side of the floodway.
·Soon after Mr Munday returned, he had a discussion with Sergeant Docherty and then arranged for the attendance of the tow-truck.
·Also soon after Mr Munday returned, Mr Miller arrived at the western side of the floodway. He then erected a temporary sign at that location.
·Mr Hill arrived at about 4.30 pm. By that time there was a tow-truck in attendance.

The sequence which I have just outlined explains why Mrs Santilli’s vehicle was not seen by any of Mr Munday, Mr Miller or Sergeant Docherty. It also provides an explanation why, although Mr Miller had attended at the east of the floodway in the period between Mr Munday first driving past and then returning, Mr Munday saw no temporary sign on his return.

It is a likely consequence of the sequence which I have described that the time elapse between Mr Munday first driving past and his return must have been longer than he estimated. That must have been so unless Sergeant Docherty arrived at the intersection a little earlier than he estimated - which is certainly a possibility. If Sergeant Docherty did arrive a little earlier, it would not otherwise disturb the sequence of events which I have outlined.

There is no direct evidence of the depth of water above the surface of the floodway at the time when Mr Burch attempted to cross. Senior Constable Clooney estimated water depth at 200 mm at about 11.30 am. Sergeant Docherty estimated depth at 400 mm when he arrived. Mr Miller, who was probably at the floodway 20 minutes or so before Sergeant Docherty’s arrival, gave evidence that the water depth at that time was 800 mm. Sergeant Docherty observed evidence that the water level had been higher at some time before his arrival; but he made no estimate as to what the likely maximum depth over the floodway had been.

Without any intent to mislead by any witness, I think that evidence of water depth, made by reference to depth markers, would not necessarily be wholly reliable. Much would depend upon the distance between the observer and the depth marker, and whether the water was flowing smoothly past the depth marker or was eddying. Examination of the photographs in exhibit A shows that the depth markers only had indications on one side. Sergeant Docherty and Mr Miller made their observations from the eastern side of the floodway. There is no photograph in exhibit A which shows water flowing past the depth marker on the eastern side. Such a photograph might have given some guidance whether the marker was likely to have been easily and reliably read.

There is no doubt that the water level fell between the time of the arrival of Sergeant Docherty and the arrival of Mr Hill. There is no reason to doubt Sergeant Docherty’s evidence that the water level had been higher at some earlier time. I doubt, however, that the water depth was 800 mm when Mr Burch attempted to cross, when Mrs Santilli attempted to cross, or when Mr Miller arrived. Mr Santilli attempted to cross the floodway between the time of Mr Burch’s attempt and Mr Miller’s first arrival. She did not identify the make or model of the car that she was driving, but she described it as a car. She said that when her car stopped, water started coming through on its passenger side. She gave uncertain evidence that the depth of water was similar to that shown in photographs 9 and 11 in exhibit A. The water depth in those photographs, see the indicator in photographs 11, was about 400 mm. Taking the circumstances of swiftly flowing water and a sedan car, I do not think it is necessary to postulate a depth of water any greater - or certainly not much greater - than 400 mm to explain entry of water into the passenger compartment.

It is of course the fact that Mrs Santilli’s vehicle was not swept off the floodway, by contrast with Mr Burch’s vehicle. That might imply that the water was running at greater height or with greater force at the time when he attempted to cross. Alternatively, it might indicate no more than that the vehicles were travelling in different directions and making use of different parts of the floodway.

There are uncertainties; but the probabilities are that the water depth was probably something more than 400 mm at the time when Mr Burch attempted to cross. I think it would be speculative, however, to conclude that the water depth was twice as great, even assuming that Mr Burch attempted passage on the northern side of the floodway, where the water was likely to have been a little deeper.

The Aftermath of the Incident

Mr Burch’s body was found the next day.

Two weeks later, Mr Munday saw that the floodway was inundated again. No temporary signs had been put out. Vehicles were passing through. He took photographs of the scene.[33] Later in the day, workers arrived and put orange webbing up,[34] as an intended barrier. Temporary signs were also erected: “water over road”, “road closed”. [35] The signs remained in place for days after the flood had subsided. Vehicles drove around them.
[33]Exhibit A, photographs 9, 10, 11, 12, 13, 14, 15, 16.
[34]Exhibit A, photographs 17, 18, 19.
[35]Exhibit A, photographs 17, 18, 19.

Mr Ross gave evidence that the webbing was erected upon the direction of the Council, given soon after Mr Burch’s death, that this should be done whenever water passed over the floodway. Before the Council’s decision was implemented, legal advice had been taken.

In early 1999, double gates were erected on either side of the floodway. The webbing had not been effective. The Shire directed Quality to close (and padlock) the gates when there was flooding. The gates, which were erected by and at the expense of the Shire, remained until the bridge was erected.

According to Mr Ritchie, at different times people used bolt cutters “to cut the locks so they could open the gate and drive through”; and people actually manning the gates were abused. He did not see, but was told about, those things.[36]
[36]T 247.

Mr Munday’s evidence shows, in my opinion, insofar as it might be relevant, that action taken at a time of flood soon after 13 November was neither timely nor appropriate. The Shire had by then, it appears, directed Quality to put up webbing (and signs) when Brushy Creek flooded. But in fact there was no webbing and no signs when the creek was in flood; whereas webbing and signs remained days after the flood had subsided.

Counsel for the Shire invited me to conclude that attempts to close off the floodway were futile – the invited inference being that they would have been futile in Mr Burch’s case. The evidence of subsequent events, in my view, shows no such thing. It is hardly surprising that some road users ignored “road closed” and “water over road” signs which were not erected when the floodway was first inundated, but which were thereafter put up, and remained after flooding had subsided. Again, if it be the case that padlocks were cut, there is no evidence that this took place at time of flooding. If bolt cutters were ever used, the probability is that it was in circumstances where, a flood having subsided for some time, a road user became frustrated because the gates remained padlocked. Such a response can be equated with road users driving past “road closed signs” which were left in place days after flooding had ceased.

Liability
The cases advanced by the parties

The gist of the plaintiff’s case was that each of the defendants had owed her late husband a duty to take reasonable care to protect him from the particular hazard posed by the floodway when it was flooded to any significant extent; that each defendant had breached that duty, and that such breach was a cause of her late husband’s death. One aspect of the alleged breach was the failure of either defendant to close Black Springs Road at the floodway before 3 pm on 30 November 1998 – whether it be closure by the erection of suitable temporary signage or by closing gates such as were later erected.

But that was not the only alleged breach. The plaintiff relied upon matters earlier in time. So, when the floodway was constructed the Shire had not complied with a Board condition that it erect fencing at the sides of the floodway; and the permanent signs which the Shire erected, in breach of another Board condition, made no reference to the floodway being possibly unsafe at times of flooding. According to the plaintiff’s case, again, the Shire’s system of recording problems with its roads was defective. Action in a particular instance depended upon the vagaries of advice by police and the public. The Shire had no protocol for ensuring the safety of the floodway at times of likely significant flooding; nor had the Shire said anything to Quality at the outset of the contract to alert it to the particular hazard created by the floodway at such times. There were methods for closing the road which did not involve large cost: erecting temporary signage; and erecting gates which could quickly be closed at times of likely significant flooding. The Shire’s failure to establish a protocol as to the circumstances in which the road should be closed, to alert Quality to the particular danger of the floodway, and to erect gates, were a likely consequence of the defects in its reporting system. Its managers – whatever its men may have known – did not fully comprehend the risk. Finally, according to the plaintiff’s case, on 13 November 1998 the Shire failed to instruct Quality to close the road after having been informed by the police that a complaint had been made and that signs should be put out.

So far as Quality is concerned, the plaintiff focussed particular attention upon what her counsel submitted was the inadequacy of Mr Miller’s response on 13 November. He knew enough to visit the area in the morning. He knew that the creek had the capacity to rise quickly. But he left the area and did not return for about four hours. If Quality was correct in saying that it had no power under the contract – save in exceptional circumstances – to close roads, then Mr Miller should have informed the Shire about the situation at 11.30 am or thereabouts. If Quality did have power to close the road, then Mr Miller should have acted long before 3.30 pm.

In the case of Quality, as with the Shire, the plaintiff relied upon matters antecedent to 13 November. Mr Miller’s conduct that day, according to the plaintiff, was explicable by Quality not having a sufficient understanding of the nature and extent of the danger posed by the crossing at times of significant flooding. In the absence of a sufficient understanding of those matters, it had not developed a protocol for action when there was a likelihood of significant flooding. Its understanding - this was implicit in counsel’s submissions – was in part attributable to it having no adequate system for receiving and collating pertinent information, and in part attributable to the Shire not having alerted it to the problem at the outset of the contract.

Counsel for the Shire submitted that the duty of care cast upon a highway authority is to repair or remove a hazard or dangerous situation which is not obvious to the ordinary reasonable motorist exercising a proper look-out. He cited the judgment of Chernov JA in Boroondara City Council v Cattanach[37] at [10]-[12], [15] and [22]. He cited also the judgment of Winneke P in Greater Shepparton City Council v Davis[38] at [27]-[29]. In the present case, he submitted, the hazard must have been obvious to Mr Burch, whose vehicle had travelled from bitumen onto a gravel surface when not far from the floodway. It would be expected that he would have slowed down, and thus have had plenty of opportunity to see the floodway and the water level. It had been broad daylight. The flooding and its extent – 800 mm – would have been obvious. Considering the question of duty, Mr Burch had been akin to a pedestrian faced by an obvious danger. Mr Burch evidently knew the area. He had referred to “the back road” in the short telephone message which he left for Mr Hill.
[37][2004] VSCA 139.
[38][2004] VSCA 140.

Counsel noted that the starting point for consideration of the matter was that the floodway was appropriate. That is, it was no part of the plaintiff’s case that the Shire was at fault by not constructing a bridge. That submission was accurate. It was accepted for the plaintiff that the Shire’s decision to build a floodway and not to erect a bridge was a policy decision.

Counsel for the Shire also addressed the question whether Quality owed Mr Burch a duty of care; and questions of breach and causation. His client, he submitted, had completely delegated its responsibility for coping with emergencies to Quality. Any duty owed to Mr Burch had been owed by Quality. Any obligation to erect road closed signs had been its obligation. If, however, the Court did not consider that the Shire had taken all reasonable steps to protect road users by engaging Quality, then a duty could have been owed, and breached, by each defendant. Any breach had been overwhelmingly that of Quality. Mr Miller’s conduct in leaving the area for four hours, although he anticipated at 11.30 am that there might be a problem, had been extraordinary. He had made no report to the Shire or to the police. There was no reason that he could not have returned earlier. When he did return, he had put out temporary signs which were inappropriate. Their message was that motorists should approach with care, not that the road was closed.

Counsel further submitted, a propos breach, that steps later taken by or at his client’s direction were irrelevant. They showed only what could have been done, not what should reasonably have been done. They were a political response, a knee-jerk reaction to a tragic event. Had road signs been too readily put up, motorists might have become reliant on their presence or absence; and if signs had not been erected in a particular instance because of shortness of time, motorists could have been led into a trap.

Upon the question of causation, counsel submitted that the evidence showed that motorists in fact relied on their own judgement at the floodway, and ignored “road closed” signs at times. There was no reason to believe that Mr Burch would have complied with a road closed sign.

Counsel for Quality accepted that his client owed a duty to the travelling public. He could not say, he submitted, that the duty which the Shire owed to the travelling public was non-delegable. He referred to Kondis v State Transport Authority[39]. Nonetheless, the Shire had been in the pre-eminent position to control events, and its systems had been grossly defective. It had no system for patrolling (danger areas). No proper instructions had been given to his client at the outset of the contract. The Shire should have taken steps which it later took – erecting gates, which it directed Quality to close at times of flooding – before November 1998.
[39](1984) 154 CLR 672 at 687.

Concerning the duty which he accepted that his client owed to the travelling public, counsel submitted that it did not exist in a vacuum. The question was whether there had been a duty to prevent the public using the floodway on 13 November 1998. The answer to that question depended upon the power given to Quality by the contract. The contract was very detailed. It referred to emergencies at a number of points. It did not empower Quality, however, to close roads. That was Mr Miller’s understanding. If the Shire had wished to contend the contrary, it should have called an appropriate witness (a Mr Fenner was mentioned). It had not done so, and an inference adverse to it should be drawn. It was noteworthy also that Mr Ross had not admonished Quality for not closing the road on 13 November.

Counsel submitted also that even if the “water over road” signs which Mr Miller eventually erected on 13 November had been inappropriate, it mattered not. They were irrelevant to what had occurred.

Counsel for Quality addressed the question of causation. The gist of his submission was that Mr Burch’s conduct in attempting to drive across the floodway, not any act or omission in breach of duty, had been the real and effective cause of his death. Counsel reminded me that, faced by the flooding, travel to the shopping centre by the Maroondah Highway would only have involved a short detour and a little more time.

In answer to the submissions for the Shire concerning duty, counsel for the plaintiff submitted that it is not the law that there is no duty of care where a hazard could reasonably have been apprehended by a reasonably prudent driver. That is just one of the matters to be taken into account when considering whether a duty is owed. He cited Brodie and Anor v Singleton Shire Council; Ghantous v Hawkesbury City Council[40] particularly at [53]-[56], [150], [151], [156], [158], [160]-[163].
[40](2001) 206 CLR 512.

Counsel submitted that in the present case, in any event, the hazard faced by Mr Burch was not one that could reasonably have been apprehended by a reasonably prudent driver. Mr Burch had fallen into a trap – just as Mrs Santilli had done soon after; and just as the persons whom Mr Miller dissuaded from driving into the floodway had been about to do. People were fooled by the depth of water and the danger. The hazard of a vehicle being swept off the floodway and down the creek was not obvious.

The parties approached the case, evidently, on the footing that the Shire was the highway authority in the pertinent locality; and thus – subject to the impact, as the Shire would have it, of the contract between it and Quality – was responsible for the construction, maintenance and repair of Black Springs Road, and for attending to emergencies which affected use of that road by the travelling public. The contract itself, I add, revealed the Shire’s understanding that such was its position.

The assumption underlying the parties’ approach to the case was surely correct. Counsel made no reference to pertinent legislation, but I would shortly mention ss. 203-208 and Schedules 10, 11 of the Local Government Act 1989 – which operated until amendments effected by Act No 125/1993; and ss. 204-208 and Schedules 10 and 11 as respectively substituted or inserted (in the main) by the 1993 Act. By both versions of Schedule 11, I note, a Council has been empowered, by item 10, to block or restrict the passage or access of vehicles on a road by the erection of a temporary barrier or obstruction for as long as necessary to prevent injury to a person or damage to property. In that connection, the definition of “road”, as defined since 1993, has included, by paragraph (g), “a bridge or ford”.

The proper approach

Upon the question of principle, I consider that the duty of a highway authority, in a case of alleged failure to repair or inadequate repair of an imperfection in the roadway, is to be formulated in terms which require that a road

“be reasonably safe … for users exercising reasonable care for their own safety.”

That was the formulation as refined by Gaudron, McHugh and Gummow JJ in Brodie at [163], their Honours having earlier said that highway authorities
“… are obliged to take reasonable care that their exercise of or a failure to exercise [statutory] powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff.”[41]

[41]At [150].

It is true that their Honours said[42], in the context of breach of duty, that
[42]At [160]

“a proper starting point may be the proposition that the persons using the road will themselves take reasonable care;”

but immediately thereafter they observed that
“not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury.”[43]

That, I think, directs attention to duty rather than breach.

[43]Paragraph 161.

There is no doubt, next, that the concept of road users taking reasonable care for their own safety has been said to be of particular importance in the case of pedestrians. They have been perceived to have a particular ability to see and avoid imperfections in a road surface. In Brodie, the application of the concept to pedestrians was mentioned in connection both with duty and breach. See, with respect to duty, per Gaudron, McHugh and Gummow JJ at [163]; and in the context of breach, per Callinan J at [355]. In this State, subsequent to Brodie, the Court of Appeal has unequivocally applied it at the duty level. See Cattanach at [15]. In this approach it is at one with the New South Wales Court of Appeal. Moreover, the Court of Appeal has made it clear that the question of the obviousness of a hazard to road users is to be considered objectively. See Cattanach at [16].

It was argued for the Shire that the approach under discussion is not confined to pedestrians. I agree that, conceptually, it is not so limited. The question whether an alleged hazard should have been obvious to a reasonably careful member of a particular class of road users must rather be considered in all the circumstances of the particular case. As a matter of fact it may well be the situation that imperfections in a road surface which ought reasonably be seen by a pedestrian will not be such as ought reasonably be seen by a motorist.

To conclude that a duty will not arise unless, inter alia, a plaintiff establishes that the alleged hazard would not have been obvious to a reasonably careful member of the class of road users of which he or she was one does not mean, of course, that a duty of care necessarily will arise if the hazard would not have been obvious. Whether it will do so depends upon whether, in all the circumstances, a road authority’s exercise or failure to exercise its powers creates a foreseeable risk of injury to a class of persons – road users – of whom the plaintiff is one.

The approach to formulating duty now under discussion has been developed in the context of claims by plaintiffs against highway authorities where allegations have been made of imperfections in roadways[44]. In the present case the Shire was doubtless a highway authority; but I do not think that could be said of Quality. Further, this was not a case about an imperfection in the roadway in the conventional sense. Again, a distinction has been drawn in the past between the activities of a municipality as highway authority and as traffic authority.[45] The plaintiff’s case focused in part upon the failure of one or other defendant to erect “road closed” signs on 13 November. Whether the exercise of such a function should have been characterised as a function of the Shire as road authority or traffic authority – if that distinction remains relevant – was not debated. There are, in short, matters which leave in some doubt the applicability of the law as it pertains to claims against highway authorities. At least that is so with respect to Quality, and at least as regards one aspect of the case argued generally for the plaintiff.
[44]“Roadways” including roads and footpaths, and the sub-structure of a bridge.
[45]Turner v Ku–ring–gai Municipal Council, (1990) 72 LGRA 60 (New South Wales Court of Appeal).

Recognising those doubts, but assuming in favour of the defendants that each was a highway authority, and that their conduct, as impugned, was referable to that status, the evidence as I have analysed it has satisfied me - consonantly with the submissions made for the plaintiff – that the particular hazard created by this floodway when it was significantly inundated would not have been obvious to a reasonably observant member of the travelling public. Why, even if the reasonably observant member of the public was cloaked with the knowledge of someone who had lived in the area for a period of months, should that hazard have been reasonably obvious to such a person? It is one thing to perceive a risk that, if driven into flood waters, a vehicle might stall. The hazard here was of a quite different type. Further, by reason of the nearby crossing and barrel drain the risk to life as well as to property was very significant. Nor, I add, must Mr Burch’s conduct be considered on the footing that, when he attempted to cross the floodway, the water was as much as 800 mm above the surface of the floodway. I have earlier analysed the evidence in that connection. Finally, I observe, there is something anomalous about the defendants – the only witnesses called by each of them claiming to know nothing about the particular hazard of the floodway – contending that such hazard would have been obvious to a reasonably observant member of the travelling public.

Duty and Breach

Was, then, a duty of care owed to Mr Burch by one or both defendants? Counsel for the Shire did not deny that his client would have owed Mr Burch a duty of care were it not for the contract – that is, assuming the plaintiff satisfied me that the hazard would not have been obvious to a reasonably observant motorist in her late husband’s position. The contract, he contended, changed everything. Counsel for Quality, however, whilst accepting that in a general sense his client owed a duty of care to members of the travelling public, submitted that his client owed no duty to Mr Burch to close the floodway on 13 November because the contract gave it no power to close roads. Counsel for both defendants, then, focussed upon the terms of the contract as providing the answer to which of them, if either, had owed a duty of care to Mr Burch.

I do not agree that the contract is the determinant whether one defendant or the other, or both, owed Mr Burch a duty of care in connection with the hazard created by the inundation of the floodway to any significant extent. Though not a determining consideration, however, I consider that the contract is not irrelevant to those questions, and it is convenient to say something immediately about its features.

The main point in dispute – particularly between the defendants - was whether it was any part of Quality’s contractual obligation to put out some and what temporary signs on Black Springs Road in the vicinity of the floodway before 3 pm on 13 November 1998; or to take any other action that day with a view of protecting the travelling public.

Pausing for a moment, as the case was argued for the defendants it was common ground that the contract was to be found entirely within the contract documents. An allegation by the Shire in its Notice of Contribution and Indemnity[46] that the contract was partly in writing, partly oral and partly to be implied – which allegation was admitted by Quality – fell by the wayside. The defendants, in effect, accepted that cl. 1.3.5 of the agreement - an entire contract clause – represented the true situation. Further, certain cross-examination of Mr Miller by the Shire’s counsel was said to be relevant only to Quality having an accurate understanding of what it had bound itself to do – which assumes that such an understanding could be relevant.
[46]Filed 15 October 2002.

Against that background, it can be said that the contract, in two volumes, was a complex compilation. It included a Form of Agreement executed by the parties, General Conditions of Contract, correspondence both predating and postdating execution of the agreement, Tender documents, a Specification incorporating most but not all of 19 appendices, a preamble to Schedules and nine Schedules. With unwitting humour cl. 1 of the Specification provided that “detailed, precise technical and/or legal terminology has been avoided in the interests of simplicity”. In fact the Specification and its many appendices were on the one hand extraordinarily detailed and yet in a number of respects were unsatisfactorily incomplete.

The contract undoubtedly concerned, in the main, the routine maintenance of roads in the northern, larger region of the Shire; and performance also of some road improvement works. Very detailed provision was made for the frequency and mode of inspection of roads, the undertaking of particular tasks, and reporting. Much of the work which was to be done under the contract was to be performed for an agreed lump sum; but provision was made for payment for day work and variations.

In addition to routine maintenance and improvement work, the contract adverted at various points to emergencies. Clauses 1.4 of the Specification of Works defined an emergency as involving

“work urgently necessary to prevent damage or loss to the life, property or work of others”.

Counsel for the defendants focussed a good deal upon the provisions concerning emergencies. They pertained to emergencies occurring both within and outside ordinary hours for work under the contract.

Quality was obligated to do certain things in the event of an emergency. Where it did so within ordinary hours, its work was within the lump sum component of the contract. Where it did so outside those hours, it was to be separately compensated.

The Shire’s contention, in effect, was that the situation at the floodway on 13 November was an emergency which Quality was contractually bound to address. Quality argued, to the contrary, that its obligations in respect of emergencies began when it was advised of the same – whether directly or via the Shire. From that point on it was obligated to act in certain ways; and to report upon the emergency to the Shire. But in the absence of an initiating report it was under no obligation to address an emergency; and in any event it had no power to close a road.

Clause 1.1 of the General Conditions defined “the services” to include the performance of work, supply of materials and all other things required to be done under the contract as indicated in the contract documents

“and… any matters reasonably to be inferred from the contract or trade usage.”

Clause 1.4.4 provided that the powers and discretions vested in the Shire were not fettered or restricted by the contract.

Clause 2.2.1 required Quality to perform the services in accordance with the contract documents. Those documents included not only the General Conditions but the Specification.

Clause 2.2 required the contractor to barricade off repair works at night times. It contemplated the use of signs and lights. By cl. 2.2.2 Quality was obligated to render necessary help to the travelling public if a work site was flooded or closed for any other reason.

The burden of cl. 2.7 was that all enquiries or complaints received by the council in relation to the performance of the services were to be referred for action by the contractor in the manner determined by the Shire-appointed supervisor (the supervisor was Mr Ritchie). The clause imposed a time limit for initial response by Quality of one hour after communication of any such enquiry or complaint. The substantive response was to include remedial work if the same was within the scope of work for which the contract lump sum was payable. In the case of services which were the subject of a provisional sum, Quality was to prepare a report within three days of the initial response as would enable the Shire to decide what should be done.

Clause 2.8 obligated Quality to set up and maintain a communication system which was geared to responding to calls all day every day.

The Specification, by cl. 1.2, provided that Quality should undertake works which were included as part of the provisional sum, variations, or day works in accordance with the direction of the supervisor. Such works included after hours emergency works.

Clause 2.5 of the Specification related to reports. It required Quality to submit a report “for all emergencies within the scope of the service and whenever an accident” occurred. Whether an emergency was or was not within the scope of the service(s) was not specified by that clause.

Clause 2.6 of the Specification, at its outset, required Quality to respond to all emergency calls, at whatever hour of the day they occurred.

Much of what followed in cl. 2.6 presupposed that an emergency call had been received. It stated what Quality’s response must be. It provided that the Shire might act if the contractor could not be contacted, or neglected or refused to do the work.

Clause 2.6.3 provided that the contractor must keep an adequate supply of sandbags and filling sand at strategic locations close to known flood prone areas for emergency flood response. It said also that “the supervisor shall advise those locations upon request from the Contractor”.

Clause 2.6.3 further provided that

“If the road is flooded… the contractor shall, while on actual duty, provide assistance were possible to members of the travelling public.”

Clause 2.6.5 dealt with circumstances in which a road was obstructed to traffic. It was concerned with the removal of the obstruction, and seems not to have been directed to obstruction by flooding.

Clause 2.6.5.4 provided for payment to Quality for after hours emergency response.

Finally I should mention cl. 2.6.5.5, a sub-clause under the heading “Obstruction to Traffic”. It provided that if a road was blocked by reason of an emergency, immediate action was to be taken by the contractor to erect suitable temporary warning signs, lights and barriers.

In my opinion analysis of the contract documents yields this result:

First, the contract was essentially a road maintenance contract.

Second, it was part of “the services” that Quality provide a 24 hours per day response facility.

Third, when a complaint or enquiry was received by the Shire in relation to performance of the services, the Shire was to refer same to Quality. If remedial work was required, and if such work was within the scope of the lump sum component of the contract, Quality was to do the work. Otherwise Quality was to report, and the Shire was to decide what, if anything, was to be done.

Having account of the time allowed for reporting it is doubtful, though possible, that cl. 2.7 of the General Conditions was in part directed to emergencies.

Fourth, within the lump sum component of the contract was a smallish allowance for “in hours emergencies”[47]. Emergency works and services after hours, to the contrary, were outside the lump sum component.[48]
[47]Tender, Schedule 3(a).
[48]Tender, Schedule 4(a)

Fifth, work to be done in dealing with emergencies after hours was to be as directed by the supervisor.

Sixth, the gist of cl. 2.6 of the Specification was that Quality must respond to emergency calls; but that the Shire was not disentitled to do so in certain circumstances.

Seventh, there are uncertainties whether cl. 2.6.3 of the Specification, insofar as it obliged the Contractor to provide assistance where possible to members of the travelling public, and cl. 2.6.5.5 insofar as it provided for the erection of suitable temporary working signs, lights and barriers, should be read as free-standing; or rather as only applying if Quality responded to an emergency call-out; whether, if one or both should be read as free-standing, Quality was obliged to take action at the floodway on 13 November 1998; and, if some obligation was imposed, whether Quality was disentitled to erect “road closed” signs.

Eighth, upon the first of those questions the meaning of the contract documents is, not altogether clear-cut. But bearing in mind the nature of “emergency” as defined, the inclusion of in hours emergencies within the services embraced by the lump sum payable under the contract, possibly cl. 2.7 of the agreement, and as well the unrestrained language of cll. 2.6.3 and 2.6.5.5, I consider that, at least with respect to in hours emergencies, Quality contracted to deal with the same whether or not it was called out to answer an emergency. It would be a strange situation if Quality happened upon an emergency and was obliged to do nothing; but must respond to that emergency if it was directly or indirectly informed about the same. Could it be the case that if Mr Miller came upon an emergency he contractually was obliged to do nothing; but that if he came upon the same emergency and a member of the public was present and pointed out that there was an emergency which required attention, he was obliged to respond?

Ninth, cl. 2.6.5.5 was cast widely enough – in referring to blockage of a road due to an emergency – to address the situation which arose at the floodway on 13 November 1998. It may be so read notwithstanding its location within cl. 2.6.

Tenth, the contract documents included a Shire letter questioning Quality’s understanding of its obligations in case of emergencies; and Quality’s response by letter of 11 March 1997. The response, absent any dissent by the Shire, stands as part of the contract. Quality explained its understanding of what it must do this way:

“… to do whatever is required to remedy the situation – ie: clear, clean, repair, sign and help other Authorities but always keeping the Supervisor informed.”

Eleventh, nothing in the contract documents to which counsel referred me, or which I have mentioned, shows that Quality was disentitled to put out a “road closed”sign in the event of an emergency. There is no doubt that the erection of such a sign, its intent being to divert the travelling public, involved action of considerable importance. It is understandable that Quality would not lightly take such action. But the safety of the travelling public was the first consideration. It can be expected that, before erecting such a sign, Quality would have informed the supervisor of its intent; or at the least communicated what it had done very soon thereafter. So to communicate would have fitted the regime described by Quality in its letter of 11 March 1997.

In concluding that Quality was authorised to erect a “road closed” sign in the event of an emergency – that is, where there was a danger, inter alia, to life or property – I have not ignored Mr Miller’s evidence about the matter, which was in the effect that such a step was only taken on instructions from the Shire or the police.[49] Nor have I ignored the Shire’s failure to call any witness who was involved in roads activities in the field during the contract period – a matter relied upon by Quality. But ultimately, as counsel for the defendants agreed, the question is one of the construction of documents.
[49]Instances of closure referred to in exhibit 2D4 were said to fit that profile.

That is all that need presently be said about the contract. But before answering the questions which I earlier posed about duty and breach it is convenient to mention another matter which, in my opinion, bears upon the question of duty, though it is not determinative.

Counsel for Quality, as I have noted, did not submit that the Shire’s duty as highway authority was not delegable in the Kondis sense. He rather argued that the Shire had always been in the pre-eminent position to control events. Counsel for the Shire argued simply that his client had delegated its responsibility. Counsel for the plaintiff touched upon the issue of delegability of functions. He submitted that the Shire could not contractually absolve itself of its responsibility in respect of the floodway. It had responsibility for roads (which included the floodway). It could delegate its responsibility, but having regard to the knowledge which it ought to have had, as keeper of the history of the road, it could not by contract absolve itself of the duty of care which it would owe road users on application of conventional principles.

“… (T)here are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor.”[50]

In such a case the contractor’s negligence is material to show the non-discharge of the duty imposed on the principal.

[50]Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.

Categories of case in which the particular duty has been held to arise include those involving employer and employee, adjoining landowners in relation to work threatening support or common walls, hospital and patient, school authority and pupil[51].
[51]The last-mentioned, subject to qualification: State of New South Wales v Lepore (2003) 212 CLR 511. See also the circumstances considered in Voli v Inglewood Shire Council (1963) 110 CLR 74 and in Burnie Port Authority.

According to Mason CJ in Kondis[52] the particular duty arises where the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety in circumstances where the person affected might reasonably expect that due care will be exercised.
[52]At 687.

In Burnie Port Authority[53], as Dawson J observed in Northern Sandblasting Pty Ltd v Harris[54], it was pointed out that –

“Viewed from the perspective of the person to whom the duty is owed, the relationship is marked by special dependence or vulnerability on the part of that person.”

[53]Cited at footnote 50.

[54](1997) 188 CLR 313 at 345.

There has been criticism of the concept of non-delegable duty, and of the explanation of the circumstances in which such a duty will be held to arise. Likewise there has been reluctance to extend the categories of case where such a duty is discerned. The differences in reasoning in Northern Sandblasting show the difficulty in satisfactorily identifying and then applying what has been said to be the unifying principle; whilst in Lepore[55] Gummow and Hayne JJ specifically referred to the “need for considerable caution in developing any new species of this genus of liability.” See also pertinent observations by Kirby J[56].
[55]At [247].
[56]At [289].

In Brodie, Gaudron, Gummow, McHugh JJ said this:

“Whatever may be the general significance today in tort law of the distinction between misfeasance and non-feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance.”

And
“Authorities have the control of highways… have physical control over the object or structure which is the source of the risk of harm. This places highway authorities in a category apart from other recipients of statutory powers.”[57]

No question whether there was a non-delegable duty, however, arose in that case.

[57]At [102]-103]. See also at [140].

It may be, in light of those observations, that the duty owed by a highway authority to road users should be categorised as non-delegable. But I refrain from so concluding. So far as I am aware, it has not been so categorised in the past; and I am reluctant to add another category of case to those in which the particular duty has been held to arise – particularly in the absence of full argument.

It does seem to me, on the other hand, that the statutory powers vested in the Shire bear upon the question whether it owed a duty of care to the late Mr Burch. They suggest, at the very least, that any attempt by the Shire to hand over the exercise of some of its powers to a contractor required it to adequately appraise the contractor at the outset of all that it knew about particular potential dangers to the travelling public; and that the Shire could not absolve itself of a duty of care otherwise arising if, because of the failure of its processes, it had not identified such a danger and for that reason did not appraise the contractor appropriately.

In the context of what I have already said about the factual circumstances of the matter, the contract, and non-delegable duty, I go to the questions of duty and breach.

In my opinion each defendant owed the late Mr Burch a duty of care, and each defendant breached that duty.

The Shire owed a duty because, viewed most narrowly, on 13 November it received instructions from the police in respect of a present, or at least a pending, emergency. There was a foreseeable risk of harm to road users if, once given those instructions, within a reasonable time the Shire neither contacted Quality and directed it to act, or itself acted. It breached its duty by failing to do either of those things. There is no point to be made that the police instruction may have been to erect “water over road” signs[58]. If such signage was inappropriate, the Shire was not disabled from erecting suitable signage, or directing Quality to do so.
[58]See the evidence of Senior Constable Masterman at T 129-130.

· Section 93(12A) addresses the circumstance of loss of services, not involving their necessary replacement, which is particularly a matter compensable under a Part III Wrongs Act claim. Damages in respect thereof are precluded. The Commission may not be obliged under s. 60(2)(c) to pay for the replacement cost of such services in the event that such cost is incurred. That will depend upon whether the prerequisites of s. 60(2)(c) are satisfied. It is certainly possible that the dependants of a deceased person might be unable to obtain either compensation from the Commission or damages in connection with s. 93(12A) services.

The fact that the loss of services performed by a deceased person may not be compensable under s. 60(2)(c) does not provide a reason for giving "services in the nature of housekeeping or the care of a child" in s. 93(12A) a different meaning to the concept of engagement in "housekeeping duties or the care of a child" in s. 60(2)(c). It might be thought, if the sections produced such a result in a particular case, that their operation was inequitable. But such a subjective appreciation would not provide a sound basis for statutory interpretation.

Counsel for the plaintiff submitted that the concept was one of domestic services, that it embraced the ordinary activities involved in maintaining a home and caring for a child. That was to be contrasted with some of the activities which Mrs Burch has undertaken with Jackson, activities in which Mr Burch was likely to have involved himself had he lived. Counsel referred to the evidence of Mrs Burch that she has spent considerable time each week attempting to improve her son's deficient motor coordination skills; and in teaching him to write his name, letters and numbers. He mentioned also time spent by Mrs Burch coping with her son's emotional liability and with problems of a protruding tongue and dribbling.

Neither "housekeeping" or "care of a child" is defined by the Act. No counsel cited any authority pertaining to either term.

Section 60(1)(b) as first enacted was the predecessor of what is now s. 60(2)(c). Just as does s. 60(2)(c), it referred to a person being

"engaged mainly in housekeeping duties or the care of a child and [not receiving] salary or wages in respect of those duties or that care."

In the Parliamentary debates, both that provision and what became s. 93(10)(b) went unremarked.[80] In the 1994 Parliamentary debates the then Treasurer, who was responsible for the passage of the Bill which became Act No. 84/1994, referred to "domestic services" as a "shorthand expression" for the subject matter of s. 93(12A). He also referred to "household services" in that connection. So also, the then leader of the Opposition referred to "the extremely important job of looking after children in the home".
[80]Hansard, Assembly, 3 December 1986, pp. 2700, 2702-2707.

Despite those few remarks, it does not seem to me that the Parliamentary debates cast any useful light on the meaning of "services in the nature of housekeeping or the care of a child". What meaning, then, should be given to the latter as a matter of proper approach? Is there any authority which is of assistance?

Parents and others spend time with children in a large variety of circumstances which may be described as care-giving. Children develop their skills at different speeds; and the one child commonly develops some skills more quickly than others. Some children go to nursery school when very young, others when older; likewise with school. It is commonplace that some parents help their children prepare for school more so than other parents; and likewise help their children with their school work more so than others. Some parents drive their children to and from school. Others walk to and from school with their children. Still other children go to school by bus or tram, without a parent in attendance. Some children engage in out of school activities – sport, dance or the like. Some parents take their children to and from the venues of such activities. It appears to me that a very broad range of activities, varying from child to child and from parent to parent, naturally fall within the description of "the care of a child".

There is no reason to confine the meaning of the term to housebound activities such as cooking and cleaning for a child. To do so would be to give s. 60(2)(c) an abbreviated meaning; and there is no reason so to construe the provision – rather the contrary. Section 60(2)(c) creates an entitlement to no-fault compensation. It should not be unnecessarily read down.

It is true that s. 93(12A) denies a right to damages for loss of services in respect of the care of a child. But that does not provide a reason why the phrase "the care of a child" should be given a different meaning in ss. 93(12A) and 60(2)(c). Although damages for loss of services in a claim under Part III of the Wrongs Act, according to O'Bryan J in Kelson, were not precluded by the operation of s. 93(10)(b) – this leading to the enactment of s. 93(12A) - and although compensation in respect of anticipated services lost would not necessarily be payable under s. 60(2)(c), the evident structure of the Act is that, to the extent which it provides, compensation for the care of a child is to be compensable under s. 60, and damages claims referable to provision of such care are to be precluded.

Accepting that "the care of a child" can embrace a very broad range of activities, accepting also the import of s. 60 and the intent of s. 93(10)(b) and later s. 93(12A), it seems to be artificial, in the context of a damages claim, to characterise some aspect of the care of a child as "remedial assistance" – the only point of the characterisation, to the detriment of the breadth of the operation of s. 60(2)(c), being to avoid the preclusion on damages set up by s. 93(12A). I say "artificial" because the activities in question would in my opinion naturally fall within the ambit of "the care of a child"; and because if such a distinction was drawn it would likely lead, in particular cases to hair-splitting about where "care" ended and "remedial assistance" began; and to quite subjective assessments of where one ended and the other began.

Noting that no authorities were cited by counsel, there is one decision to which I should refer. Sullivan v Gordon[81] was a damages claim by a female plaintiff who had been injured in a motor vehicle accident. She had suffered frontal lobe brain damage. After the accident she had given birth to two daughters by different fathers. Her brain damage caused her to behave in an erratic fashion. Her mother gave evidence that the plaintiff, by reason of her erratic behaviour, including inability to keep her temper, was unable to either properly care for her daughters or properly manage her own affairs. The trial judge found that the plaintiff was unemployable, irresponsible and in need of supervision. The particular question for the court was whether the plaintiff could recover damages for the loss of capacity to care for dependant children. The New South Wales Court of Appeal held that the plaintiff could so recover and that, subject to the Motor Accidents Act 1988 (NSW), she should be compensated for that consequence of her injuries on the same basis as a Griffiths v Kerkemeyer[82] claim. Under s. 72 of the Act Griffiths v Kerkemeyer damages were payable in respect of "services for additional domestic assistance" and "domestic assistance". The court held that childcare required by the plaintiff to care for her children fell within the ordinary meaning of those phrases[83]. It decided that the evidence supported a finding that almost full-time care was presently required for one child, and that significant care would be required up until the child was aged 16.[84] Beazley JA referred in the latter connection to "the usual domestic care and supervision of any teenager at school."
[81](1999) 47 NSWLR 319.
[82](1977) 139 CLR 161.
[83]Per Beazley JA at [75]; Spigelman CJ, Powell JA and Stein JA agreeing.
[84]At [76].

Neither the claim in Sullivan nor the New South Wales legislation mirrors the present claim or legislation. But it does seem to me that the conception of childcare which the Court of Appeal applied was an expansive one; and compatible with the meaning which, as a matter of approach, I would give to the phrase "the care of a child".

In the event, I consider that whilst the late Mr Burch may well have participated in what the plaintiff's counsel characterised as "remedial assistance" for Jackson, by operation of s. 93(12A) such hours as he was likely to have spent in that connection cannot be the subject of a damages award.

In my opinion, the evidence leads to a conclusion that Mr Burch provided about eight hours gratuitous services each week – that is, services not falling within any preclusion against damages set up by s. 93(10)(b) or (12A) – in the period leading up to his death. It seems likely to me that he would have contributed to provide services at such a rate, barring contingencies, at least up to age 65. For a person so inclined, as I take Mr Burch to have been, there is always work to be done. There is no reason in logic, of course, why a man with things to do should stop working at age 65. Taking a period ending when Mr Burch would have been aged 65 is rather a synthesis of a number of circumstances which are necessarily uncertain. They will never happen in fact; if they were to have happened, in some instances it would still be many years hence.

It was agreed that, for the purpose of assessing damages, services performed by the late Mr Burch should be valued at $20 per hour.

Assessment

In the period between his death and trial the late Mr Burch would have contributed each week, by net income and value of services, $1135[85] to the notional family purse. In that period the plaintiff would have contributed $100 per week. Counsel for the plaintiff submitted that the extent of the dependency of the plaintiff and children to date should be assessed at 80% of deceased's presumed contribution. He highlighted the circumstances that the plaintiff's earnings in the relevant period would have been small, that Jackson has been a needy child, that the deceased was careful with his money, that there were mortgage repayments and plans to extend the family home.
[85]$975 + 8 x $20.

Counsel for the first defendant submitted that the appropriate extent of past dependency was 68% of what Mr Burch would have put into the family purse. In support of that submission counsel argued that the plaintiff would have earned one third as much as her late husband in the period between his death and trial.

Each submission had some recourse to the report of the actuary, Mr Cumpston.[86]
[86]Exhibit M.

As to the future, counsel for the plaintiff, relying upon contentions that the deceased would have worked to aged 65, that he would have wound back his voluntary services to an extent with the passage of time, that Jackson was likely to have remained dependant to aged 25, and that the plaintiff would have earned a small amount in future years, submitted that dependency should be assessed at 70% of deceased's notional contribution to the family purse up to the time when he would have attained the age of 65.[87]
[87]Jackson would then have been aged 29.

Counsel for the first defendant submitted, to the contrary, that dependency should be assessed at 68% of deceased's contribution to the family purse for a period of 15 years. By then Jackson would be 20.5 years, Teaghan would be 24, and the deceased would have been aged 57. Dependency should thereafter be assessed at 54.13% of deceased's contribution to age 65 – that age reflecting likely retirement at 60 and thereafter receipt of superannuation income to which income salary sacrifice over the years would have contributed.

The submissions made for the first defendant were founded upon assumptions that the plaintiff would have continued to work indefinitely, and to contribute to the family purse an amount equal to one third of the deceased's contribution. The various percentages advanced by both counsel, a propos dependency after trial, again had recourse to Mr Cumpston's report.

I turn from the competing submissions to my conclusions.

As to the extent of dependency in the period to trial, considering inter alia Mr Cumpston's report, I consider that the appropriate figure is about 73% of deceased's assumed weekly contribution of $1135 to the family purse. That makes allowance for what I have concluded would have been the plaintiff's income in that period. The weekly figure is thus about $828. Taking the period, conveniently, from date of death to 13 November 2004, the value of lost dependency, as a raw figure, is $258,336. From that figure there should be a very small discount for contingencies, and something to account for the fact that the plaintiff gained an unexpected and accelerated benefit arising from her husband's death: the receipt of $17,000 insurance moneys in respect of his vehicle, which was a write-off. I reduce the figure for past dependency to $245,000.

As to the extent of the dependency in the post-trial period, I have already concluded that the late Mr Burch was likely to have worked at least to age 60. Allowing for his having post-retirement income to which his salary sacrifice over the years would have contributed, and having regard to my conclusion that he was likely to have continued to perform voluntary services to the advantage of his family up to age 65, I consider that future loss of dependency should be assessed to the date when Mr Burch would have attained 65 years. On the footing that his immediately disposable net employment income would now be $1125 per week, and the value of his weekly services $160, the amount of his weekly contribution to the family purse between trial and age 65 (which he would have attained on 19 August 2027) should be assessed at $1285. For part only of the period between trial and 2027 – that is, until the plaintiff attains 50 years on 16 July 2014 – the family purse would have been augmented, I have concluded, by her net earnings of $100 per week.

I further conclude that both children would have remained dependant on Mr Burch until he was aged about 55. By then Teaghan would have been aged about 22, and Jackson nearly 18. I further conclude that, probably, Jackson would have continued dependant upon his father until the latter was aged about 62 – by which time Jackson would have been well into his 26^th year; and that the plaintiff would have continued dependant upon her husband until he attained 65 years.

I have concluded, then, that relevant events were likely to have occurred when Mr Burch attained the age of 52 (his wife's cessation of work), about 55 (cessation of Teaghan's dependency), about 62 (cessation of Jackson's dependency), and 65 (nominal cessation of plaintiff's dependency).

In the 10 years period until the plaintiff is aged 50, I assess dependency, as in the case of the period to date, at 73% of deceased's assumed contribution to the family purse – that is, about $950 per week. The 10 years multiplier at 6%, without allowance for mortality, is $395[88]. So the loss of dependency for that 10 year period, as a raw figure, is $375,250.
[88]Luntz, Assessment of Damages for Personal Injury and Death, 4^th Ed, Table 2. I was told by counsel that there was general agreement that Tables set out in Luntz should be used.

For a three year period, from 2014-2017, according to my conclusions, the dependency would have been a little greater than 73%, because the plaintiff would not have been working. Then, in the five years to 2022 (when Mr Burch would have been 60) the dependency would have been a little less – say about 70% - because Teaghan would not have been dependant. The extent of dependency would have reduced again when deceased was aged about 62, for according to my conclusions Jackson would then have ceased to be dependant. Mr Cumpston's report suggests that between ages 62-65 the extent of dependency would be about 64%.

Recognising that there cannot be mathematical certainty in an analysis of this kind, I consider that I should allow an average dependency of about 67.5% in the period 2014-2027. There should be a discount in order to allow for the deferral factor. The 6% multiplier for 13 years is 476. The average weekly dependency, in accordance with my approach, would be about $867 ($1285 x 67.5%). The raw figure is $412,692. The deferral factor, .4688, maybe calculated by application – see paragraph 6.1.7 – of Appendix Table 1 in Luntz. The adjusted amount is $193,470.

The prospective loss of dependency, then, absent any discount for contingencies, assesses at $568,720. There needs to be a discount for contingencies. Prominent is the risk of early death. But there must also be considered matters such as the risk of accident or illness, the possibility that Mr Burch may have stopped work at a younger age, the prospect that the plaintiff may have worked more than I have concluded was likely, the possibility that Jackson's future will be less gloomy than has been foreshadowed. Plaintiff's counsel argued for a 12% discount for contingencies. First defendant's counsel proposed a 20% discount. I think that the range of contingencies, varying in terms of probability, justifies a discount of 15%. That yields a net figure of $483,412.

I therefore assess the plaintiff's claim overall, at $728,412.

The Statutory Cap on Damages. Comcare

By s. 93(9) of the Act, a court must not award damages in a claim brought under Part III of the Wrongs Act in excess of $641,240.

By s. 93(11A), damages under sub-s. 8, subject to an irrelevant exception, are to be reduced by the amount of any compensation paid in respect of the loss of expectation of financial support under a compensation scheme specified in s. 37. The effect of s. 37(g) is that the Commonwealth's Comcare system is specified.

It was common ground in the present case that Comcare payments totalling $205,313.45 had been made to the plaintiff and the children.

There was dispute, however, whether the Comcare payments should be deducted, in the event that the damages as assessed exceeded the statutory cap, from the damages as assessed or from the cap figure. Plaintiff's counsel argued for the former; first defendant's counsel for the latter. It appears that it is no relevant authority. Some reference was made to my ruling in O'Connell v Melbourne Excavations and Demolitions Pty Ltd[89], but what I there said is not directly in point.
[89]Unreported, judgment 7 March 1997.

In the present case, I have assessed the damages at a figure ($728,412) which exceeds the statutory cap. Depending upon the correct approach, the award of damages will be $523,098.55 or $435,926.55.

It would, I think, be strange if the legislature's intention, as deduced from the statute, was that any necessary reduction for compensation paid should be made from a different starting point in the case of claims on the one hand by injured persons and on the other hand by the dependants of deceased persons. Where it is very clear in the one case that there is to be a particular starting point, and where it may be argued that the starting point is not clear in the other case, the improbability that there should, unexplained, be different starting points tells in favour of an interpretation that achieves consistency. That seems to me to be this case, as I will explain, and it tells against the submissions made for the plaintiff. But I should first outline those submissions.

Counsel for the plaintiff relied upon the differences in language between s. 93(7) and (11) on the one hand and s. 93(8) and (11A) on the other. He pointed out that by sub‑s. (11A) damages under sub-s. (8) are to be reduced by the amount of compensation paid. Sub-section (8) simply provides for recovery of damages in a Wrongs Act claim. Sub-section (11A) read with sub-s. (8), counsel submitted, means that damages as assessed are to be reduced. To emphasise the point, it is sub-s. (9) which imposes the cap. By contrast, counsel submitted, sub-s. (11) provides for reduction of compensation paid from damages recoverable by an injured person under sub-s. (7); and within sub-s. (7) the cap is imposed, and it is provided that reductions for contributory negligence and for compensation paid are to be made from the cap amount if the damages as assessed exceed the cap.

Counsel did not concede that it would be anomalous to have different regimes in respect of claims by injured persons and claims by dependants. He submitted that the rights of dependants have at times been treated favourably. He reminded me that, in the context of the Accident Compensation Act 1985, there was a period when common law claims by dependants were preserved whilst claims by injured workers were precluded. He conceded, on the other hand, that in the various versions of the Accident Compensation Act there has been a constant theme that reductions for compensation paid, and for contributory negligence, are to be made from the total damages that can be awarded – which is to be regarded as the cap amount when damages are assessed at a greater amount. He agreed also that, a propos contributory negligence, that is the effect of s. 93(7)(a)(ii), (7)(b)(ii) of the Act. In short, he conceded that across the canvas of damages claims arising out of transport and industrial accidents in this State there has been and remains a consistent pattern that reductions for compensation paid and for contributory negligence take as their starting point (where relevant) the cap amount. To that regime there is, he contended, a single exception: a dependant's claim authorised by the Act.

There is no doubt, I consider, that counsel's concessions were rightly made. In the case of injured persons making claims under the Act, s. 93(7)(a)(ii), (b)(ii) make the position plain. Under the Accident Compensation Act, as it has applied from time to time, the situation has been the same. See, for example, s. 135(3A) as inserted by Act No 83/1987 and construed in Wellbridge v Jackson[90], Neville Smith Timber Industries Ltd v Alen[91], Metropolitan Transport Authority v Ivanovski[92] and Copur v Alcan Australia Ltd[93]. See also the previous s. 134AB(22)(a)(ii), (b)(ii) read with sub-s. (25), ss. 135A(7)(a)(ii), (b)(ii) read together with sub-s. (11), s. 135A(8), (9), read together with sub-s. (11), s. 135C(1), (2) read together with sub-s. (7)(a). See also, a propos reduction for contributory negligence, s. 135A 7(a)(ii), (b)(ii) read together with sub-ss. (11), (12), and s. 135AB(22)(a)(ii), (b)(ii) read with sub-ss. (25) and (26).
[90][1990] VR 689.
[91][1991] 2 VR 1.
[92]Full Court, unreported, 12 November 1991.
[93][1995] 1 VR 238.

The question which remains, however, is whether the language of s. 93(8)(9) and (11A) requires the conclusion advanced by counsel; in considering which it would be right not to readily conclude that an established right has been abbreviated.

Despite the attraction of the argument advanced for the plaintiff, I consider that it is not correct. Section 93(1) provides that no damages may be recovered for injury or death as a result of a transport accident except in accordance with the section. The section then authorises recovery in cases of injury and death. Subject to later qualifications, the right of recovery is in the one case conferred by sub-s. (2) and in the other case by sub-s. (8). Sub-section (2) is the starting point for the erection of an elaborate structure – see sub-ss. (3)(4)(5). In the case of a dependant's claim, however, there is no need for such an elaborate structure. Sub-s. (8) suffices to give right of recovery in such a case. Sub-section (8), indeed, has been in its present form ever since the Act commenced.

There has always been a cap on amount of damages which may be awarded in a claim authorised by sub-s. (8). Sub-section (9), which imposes the cap, has, like sub-s. (8) been in that form ever since the Act commenced.

So also, there has always been a cap on the amount of damages which may be awarded in a claim authorised by sub-s. (2). It is sub-s. (7) which has contained the relevant provision.

Sub-section (8) and (9) are, I think, to be viewed this way. Sub-section (8) creates a right to recovery of damages in a proceeding brought under Part III of the Wrongs Act. Absent sub-s. (8), sub-s. (1) would preclude such a proceeding. Sub-section(8) is to be equated, in the case of an injured person, with sub-s. (2). Absent sub-s. (2), sub‑s. (1) would preclude a claim being brought by an injured person. Sub-section (9) is concerned with a particular aspect of what may be awarded in a claim which is authorised by sub-s. (8). Other aspects of what may be awarded in claims authorised under the section are dealt with by sub-ss. (10), (12)(b), (12A), (13) and (15). Those sub-sections make it clear, despite the fact that sub-s. (7) now speaks in terms of a recovery of damages, that recovery where used in that sub-s. is to be equated with an award of damages.

It next seems to me that sub-s. (11A), in referring to reduction of damages under sub‑s. (8), is really doing no more than identifying the type of matter in respect of which sub-s. (8) authorises recovery of damages. It is saying that damages in such a case are to be reduced by compensation paid. It does not make subs. (9) irrelevant for the purpose of determining the starting point for the reduction. Sub-section (8) itself has nothing to say, one way or the other, about the quantum of permissible damages.

There is a difference in the language of sub-s. (7) and (9) where once their language was very similar. But the present contrast is readily explicable, and it does not lead to a conclusion that the Act has headed in different directions in the connection now under discussion.

Sub-section (7) as first enacted, precluded an award of damages in excess of stated amount for pecuniary and non-pecuniary loss. The sub-section was in substance akin to sub-s. (9). So, sub-ss. (2) and (8) authorised recovery of compensation, and sub-ss. (7) and (9) precluded awards of damages beyond certain amounts.

Sub-section (11), as first enacted, provided that if damages were awarded in accordance with sub-ss. (7) or (9), the Court was to order payment to the Commission of compensation paid by the Commission. Given that the amount which could be awarded was capped, any such order must have operated upon, at most, the capped amount. It follows that, at the outset, the point at which a reduction (in effect) for compensation paid was effected was the same whether the award was in favour of an injured person or dependant(s). That point was damages as capped, not damages as assessed in a greater amount.

Pausing for a moment, if the argument for the plaintiff was correct, it must be concluded not only that there is a regime in the case of a Wrongs Act claim which is quite unlike that which applies in all other transport and industrial accident matters, it is also a regime which has altered – favourably for dependants – since the Act was first enacted. There is no hint of any such beneficence in any Parliamentary proceeding. Indeed, as will be seen in a moment, sub-s. (7) in its present form and sub-ss. (11) and (11A) have broadened the circumstances in which an award of damages is to be the subject of reduction.

Sub-section (7) in its present form was substituted by Act No. 87/1994. As previously enacted, there was no specific mention of what was to happen in the event of a finding of contributory negligence if damages were assessed at an amount beyond the statutory cap. The preclusion upon an award of more than the statutory cap implied that any reduction must be from the capped amount; but it was not so plain as in the case of compensation paid by the Commission. Sub-section (7) in its new form specifically addressed the issue – by paragraphs (a)(ii) and (b)(ii).

At the same time, the former sub-s. (11) was split into two, the new sub-s. (11) dealing with claims by injured persons, and the new sub-s. (11A) addressing dependants' claims. Each of them was made specific to the type of claim in question. So, sub-s. (11) referred to payments made under ss. 47, 48, 49, 50, 51 and 54 whilst sub-s. (11A) referred to payments made under ss. 57, 58 and 59. Again, the two new sub-sections provided for reduction of damages by the amount of compensation paid otherwise than under the Act. Finally, sub-s. (11) and (11A) spoke of "reduction of damages" rather than in terms of a court ordering payment to the Commission. The earlier methodology would have been inappropriate where compensation had been paid otherwise than by the Commission.

It is true that by the 1994 amendments the reference in the old sub-s. (7) to an award of damages was replaced by the language of "recovery". It is true also that by those amendments sub-s. (7) internally provided that where damages were assessed at beyond the capped amount, compensation must be deducted from that capped amount and not from damages as assessed. But it is a very long bow to conclude that those changes, and the split up of the former sub-s. (11) into sub-ss. (11) and (11A), had the effect that the then existing regime in the case of dependants' claims was altered – particularly when, as I have noted, sub-ss. (8) and (9) themselves remained unaltered.

In the event, the plaintiff should be awarded damages of $435,926.55.

Proportionate Dependency

As between the plaintiff and the children, I have concluded that all would have been dependant in the period to date, that Teaghan would have remained dependant to age 22, that Jackson would have remained dependant until he was well into his 26^th year, and that the plaintiff alone would have been dependant for a period of about three years after Jackson's dependency ended.

It is not possible to calculate proportionate dependency in an exact way. Speaking generally, the plaintiff's dependency should be considered the greatest throughout, whilst Jackson's past and probable future needs and the fact that, upon my conclusions, only he and his mother would have been dependant for a certain period mean, I think, that his extent of dependency should be accounted a little greater than Teaghans.

The overall period from the date of Mr Burch's death to the date when he would have been 65 is about 29 years. The approximate period from the earlier date to the date when Teaghan will be 22 is 19 years. The approximate period from the date of his father's death to when Jackson will be 25.5 years is, because he was born very soon after his father's death, 25.5 years.

I assess proportionate dependency, having some recourse to Mr Cumpston's report, as follows:

·    Teaghan 19 \ 29 x 18% of $435,926.55 = say $51,500
·    Jackson 25.5 \ 29 x 21% of $435,926.55 = say $80,500
·    Plaintiff, the balance of: $303,926.55
Judgment and Orders

There should be judgment entered and orders made in accordance with these Reasons. So much of the damages as I have apportioned in favour of Teaghan and Jackson must be paid into Court. I will hear the parties as to the appropriate form of the judgment and orders. For the moment, I add, I will reserve consideration of the question of interest. I will do so because, it appears, there are presently matters before the Court of Appeal the determination of which may give guidance about that question.

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[2004] VSC 437

4 November 2004