Calvert v Shire of Gingin

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CALVERT -v- SHIRE OF GINGIN [2004] WADC 1

CORAM: LA JACKSON DCJ

HEARD: 12-15 MAY, 21 JULY, 1-4 DECEMBER 2003

DELIVERED : 15 JANUARY 2004

FILE NO/S: CIV 2962 of 1995

BETWEEN: LYNDA JEAN CALVERT
Plaintiff
AND
SHIRE OF GINGIN
Defendant

Catchwords:

Negligence - Duty and standard of care of a local authority in the maintenance of roads and installation of safety signs - Causation

Legislation:

Nil

Result:

No negligence found
No causation found

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Ms N Johnson QC and Mr D M McKenna (May/July 2003) and Mr K J Martin QC and Mr J I Winter (December 2003)

Solicitors:

Plaintiff: Bradford & Co
Defendant: Jackson McDonald and Jarman McKenna (as from 7 July 2003)

Case(s) referred to in judgment(s):

Agar v Hyde (2000) 201 CLR 552
Brodie v Singleton Shire Council (2001) 206 CLR 512
Chance v Alcoa of Australia Ltd, unreported; SCt of WA; Library No 8070; 15 February 1990
Commonwealth of Australia v O'Callaghan [2001] WASCA 276
Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183
Hoyts Pty Ltd v Burns [2003] HCA 61
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Shorey v PT Limited (2003) 197 ALR 410
Tame v New South Wales (2002) 191 ALR 449
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Chappell v Hart (1998) 195 CLR 232
Fell v Blue Mountains City Council [2003] NSWSC 17
Frost v Warner [2002] HCA 1
Gloucester Shire Council v McLenaghan [2000] NSWCA 208
Jones v Bartlett (2000) 176 ALR 137
Lloyd Russell Jones v Commissioner of Main Roads [2002] WASCA 307
McIntyre v Ridley District Council (1991) 56 SASR 343
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Naxakis v Western General Hospital (1999) 197 CLR 269
Prast v Town of Cottesloe (2000) 22 WAR 474
Roads and Traffic Authority of NSW, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer [2003] NSWCA 58
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
Shire of Brookton v Water Corporation [2003] WASCA 240
Tomlinson v Congleton Borough Council [2003] UKHL 47

LA JACKSON DCJ: The plaintiff's claim is for damages arising out of a motor vehicle accident on 13 October 1989. The plaintiff was driving a motor vehicle along Mogumber West Road in the Shire of Gingin when her car ran off the road and hit a tree.
The plaintiff's action is against the Shire. The issue before me is that of liability only.
This was a most tragic event. Whilst I have no medical evidence, I understand the plaintiff, then aged 37, broke her neck and as a result is a quadriplegic. The plaintiff's nephew, then aged seven, was seated in the back seat. His spine was broken and he is a paraplegic. The plaintiff's sister was a front seat passenger and also received injuries. It is, I think, important for the trial judge in a case such as this to bear in mind the awfulness of the consequences of the accident but to be cautious not to be overwhelmed by them. It would be impossible not to feel considerable sympathy for the plaintiff in the position she finds herself. However I must not allow such sympathy to be a factor in the proper determination of the issue of liability. It is trite to say the plaintiff has the burden of proof to satisfy the Court on the balance of probabilities that the accident and consequential injuries were as a result of the breach by the defendant of its duty of care to the plaintiff. If she fails to do so then her claim should be dismissed notwithstanding the emotion which surrounds a case as tragic as this. If the defendant is liable then any question of contributory negligence on the part of the plaintiff must also be considered objectively.
It is convenience to firstly consider the legal principles that apply and then to consider the evidence and make findings of fact relevant to those principles.
Until the decision of Brodie v Singleton Shire Council (2001) 206 CLR 512 the law in Australia was that a local authority, with respect to roads and footpaths, could not be liable for nonfeasance, that is for taking no action, but would only be liable for misfeasance, that is for some positive set carried out negligently. Although it is somewhat cumbersome to set it out in full, a summary of the most useful principles at par 150 and following in Brodie, by Gaudron, McHugh and Gummow JJ (footnotes omitted) would not do justice to those reasons:
"150The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non‑repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.
151The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. The result, in broad terms, may not differ from the recommendation as to the obligations of local government bodies by the Public Bodies Review Committee of the New South Wales Parliament in its report, Public Liability Issues Facing Local Councils, November 2000, Recommendation 9, at p 10: 'That the principle of non feasance for the repair of roads remain in place or that statutory immunity from liability for the repair of roads should be provided subject to councils meeting a reasonable standard of maintenance agreed by an external authority.' In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.
152In dealing with particular cases and in determining factual issues respecting breach of duty, it may be convenient to differentiate between the design and construction of a roadway, between subsequent works done on it and between course of inspection to ascertain its soundness. These matters are not mutually exclusive and sometimes may overlap.
(i) Construction and design
153Issues may arise as to whether there was a foreseeable risk of harm arising from the design or the method of construction employed and whether, in choosing or performing the design and construction or in failing to take preventative measures or to put into place warning signs, the authority responsible failed to exercise reasonable care.
154There will be variations respecting the manner in which a road, as designed and constructed, may be dangerous and likely to cause injury. The laws of physics may dictate that an ordinary road user is subject to forces making use of the road dangerous. For example, the road may be improperly cambered on a curve, or the road, its sides or shoulders may be inadequate to support vehicles which may reasonably be expected to stop or travel upon it. The pattern and path of the road may present a danger, often as a result of the terrain through which it must pass, from sharp curves, a steep incline or the like. The design of the road may be such that natural forces or elements may create a danger. For example, natural watercourses may make the road surface slippery or uneven, or the design of the road may allow natural forces to deposit dangerous quantities of gravel upon it. The road markings may create, conceal or mislead as to the existence of a danger in the road surface, or the design of the road or structures on it may present a concealed danger.
155The question whether 'due care and skill' was taken in design and construction will require consideration of all the circumstances of the case. The circumstances will include the type and volume of traffic expected. Different roads will serve different purposes and need not be constructed to the same standard. Thus, one would not expect all country roads to be sealed. The cost and practicality of an alternative and safer design, if one be available, may be weighed against the funds available to the construction authority. This may involve striking a balance between competing designs or methods of construction.
156It may also be that, although a road is in a dangerous condition, the authority will have discharged its duty of care by taking reasonable steps to minimise any danger or to prevent it arising. The authority may have provided adequate warning to users of the road by erecting appropriate signs (so that, if exercising due regard for their own safety, users are able to avoid the danger), or by building into or adding to the road features such as safety devices or fencing which tend to minimise the danger.
157The safety of a road may be altered by changes to the ground over which it passes. These changes may produce a source of danger which requires the taking of reasonable steps to remove or minimise it. Thus, for example, if a ravine is cut alongside a road, or exposed by the removal of natural scrub, it might well be incumbent on an authority having the management of that road to install fencing to prevent users of the road too easily falling into the ravine.
(ii) Repair, maintenance and works
158A rejection of the 'immunity' for 'highway authorities' and the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road.
159The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger.
160In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the result of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care.
161…
162The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers included, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question.
(iii)Pedestrians
163…
(iv)Inspections
164Cases respecting inspections for dangerous conditions have been determined by the dichotomy between misfeasance and non‑feasance. A 'highway authority' was not liable if it failed to conduct inspections but, seemingly, was liable if it began remedial work in response to the discovery by inspection of defects or, possibly, even once it discovered the existence of those defects. These cases usually involved 'non‑feasance', as an inspection typically discloses a situation which is unsafe and needs repair. Allied to them are cases in which a danger first manifests itself when the road surface, or a structure, collapses or gives way either under the plaintiff or shortly before it is crossed.
165Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where the authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and if they are found, fails to take reasonable steps to correct them. In the cases, the danger usually manifests itself in decayed beams or supports of bridges, or drains or culverts, or other structures supporting a road or its surface. … "
In Wyong Shire Council v Shirt (1980) 146 CLR 40, Mason J at 47 said:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
In Tame v New South Wales (2002) 191 ALR 449 McHugh J at par 98 and par 99 said:
"[98] Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability. But courts have exacerbated the impact of this weakening of the foreseeability standard by treating foreseeability and preventability as independent elements. Courts tend to ask whether the risk of damage was reasonable foreseeable and, if so, whether it was reasonably preventable. Breaking breach of duty into elements that are independent of each other has expanded the reach of negligence law.
[99] Giving the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was 'some valid reason' for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide – virtually automatic – into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Wyong Shire Council v Shirt (1980) 146 CLR 40 in a passage that is too often overlooked."
See also Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183.
The defendant argued that the passage in Agar v Hyde (2000) 201 CLR 552 at par 68 which reads as follows applied:
"Further, from the earliest times, the common law has drawn a distinction between a positive act causing damage and a failure to act which results in damage. The common law does not ordinarily impose a duty on a person to take action when no positive conduct of that person has created a risk of injury to another person."
I do not consider that passage has application in this case and, of course, take note of the fact that either the defendant or its predecessor the Road Board constructed the road at some time in the past.
The plaintiff and her family lived in the metropolitan area of Perth. In the late 1970's the plaintiff's father purchased a small farming property situated on Mogumber West Road in the Shire of Gingin about 11 or 12 km east of Brand Highway. The plaintiff's father built a house with, I gather, assistance from family members who used to travel to the farm from time to time to assist. The house was completed in about 1982 and thereafter on a regular basis the plaintiff used to visit her parents. The plaintiff's evidence was that she used to go four to five times a year. Her familiarity with the road is a matter of some significance. I consider the plaintiff, for the purpose of this action, tried to play down the number of occasions she went along the road. For example, when the plaintiff was interviewed by police on 20 March 1990, in answer to the question (No 7) "If it was your sister's friend's car why were you driving it." she replied "It's just because I always drove, whether it was our car, my sister's car, my bosses van, I always drove." In comparison in par 38 of her proof of evidence, she said "John and I usually shared the driving pretty evenly. On occasions John would drive and on other occasions I would drive." I accept that in March 1990, when the plaintiff was still a patient at Shenton Park Rehabilitation Hospital, it was a time of great trauma for her, but her recounting the history of driving before the accident is likely to be accurate. The plaintiff's sister, Dona Fraser, said that because their father was unreasonable he refused to have the telephone put on and the family used to visit once or twice a month. She was not by that saying it was the plaintiff who visited as regularly as this, but nonetheless, it is an indication to me that the frequency of visits was probably somewhat greater than the plaintiff conceded. Of course, each time there was a visit there was a return journey along the road. There was a service station which sold supplies such as newspapers and milk on the Brand Highway a few kilometres north of its intersection with Mogumber West Road. The plaintiff said she would from time to time call in there to collect supplies on her way to the farm. She denied going there during any of the visits but I think that is a proposition that she never would have gone is unlikely.

Doing the best I can, I consider the plaintiff had travelled along the road on sufficient occasions to be familiar with it. Indeed on 20 March 1990 she told the police that she was familiar with the road and that she knew she needed to take care at the point where the accident occurred (par 20).
It was arranged that the plaintiff and her sister and her sister's son would visit the farm on 13 October 1989. The day before, the plaintiff's husband, John Thomas Calvert, had gone to the farm driving the family's Holden Commodore Station Sedan. This was a vehicle the plaintiff had driven to the farm on many occasions. The plaintiff also had a car described as a Mini but I have no precise details of it. This car was apparently not in particularly good mechanical condition. I presume because of that, Ms Fraser had borrowed a friend's Toyota Corolla Hatchback Sedan and it was this vehicle the plaintiff was driving on 13 October 1989.
Mr Calvert, expecting his wife to be driving in her car, had driven down the Mogumber West Road to the Brand Highway to meet her so that he could follow her along the road in case in case she broke down. He was driving along Brand Highway when he was waved down by the plaintiff. Mr Calvert turned and they drove in convoy towards the farm. The plaintiff was leading and Mr Calvert was about 90 metres behind because of the dust on the gravel road.
The speed at which the plaintiff was driving is important. Both the plaintiff and her husband maintain they were travelling at a speed of approximately 70 km/h. The plaintiff said she had not looked at her speedometer and this was simply an estimate. Mr Calvert said he had looked at his speedometer earlier along Mogumber West Road but not again so that in the area approaching the scene of the accident his evidence of speed can also only be an estimate. Sergeant Ian Clarke was a constable in 1989 attached to Gingin Traffic. After the accident police were called and he attended. He noted in his report that the plaintiff had been travelling at 80 km/h. He said that information came either from the plaintiff or Mr Calvert but he is unable to say who.
I have no reason to doubt the evidence of Sergeant Clarke. I accept he was told either by the plaintiff or Mr Calvert that the plaintiff's speed was about 80 km/h. In this case the plaintiff's interests are best served by a lower speed being found rather than a higher one. I think the speed at which the plaintiff was driving may have been played down to a degree for that purpose.
Ms Fraser's evidence as to speed is of no assistance. She said she was paying no attention to the speed of the vehicle and was looking about to see whether there had been any new building in the area because, it seems, she was concerned about the isolation. The best I could do would be to assume that there was no excessive speed to the extend that Ms Fraser had become conscious of it. The road appears to be a gravel road in good condition. Subject to curves in the road, there would be no particular reason why 60, or 70, or 80 km/h would not be a generally reasonable speed to drive along the road.
At all material times Mogumber West Road was a gravel road. It had no speed limit signs on and was therefore subject to the overall State speed limit of 110 km/h. In her statement of claim the plaintiff pleads as a particular of negligence the speed limit of 110 km/h on the road. I do not consider that to be relevant to these proceedings. The plaintiff well knew that she would not be able to drive along the road at anything like that speed. There were a number of bends in the road and again the plaintiff was well aware of those as she said to the police "we never drive fast along that road, its just a trundle".
There is one short matter with respect to Ms Fraser's evidence I should deal with. She said she was unaware of anything amiss until the plaintiff, who did not normally swear, said "Oh shit." Ms Fraser then paid attention and realised that the car was sliding out of control towards a tree. Either at that time or after the impact Ms Fraser said the plaintiff said she was sorry. I do not consider that to be evidence of an admission of responsibility but rather an expression of regret. To seek to elevate it beyond that would, I think, be to take it out of the context of the happening of a serious accident when what was said is unlikely to be something carefully considered.
The topography of the road has been described as an S‑bend followed by a dip. Ronald Kay, now the works supervisor, had been a grader driver for many years, on and off since 1972. He denied the bends constituted an S‑bend. The fact that the road bends to the left and then some distance further bends to the right does not accurately describe the bends as creating an S. In my opinion bends need to be much tighter and closer together than these and the description is an inaccurate one. There is nothing peculiar or different about these bends when compared to other bends on the roadway except one at about the five kilometre point described as Stolarski's corner where the bend is sharper than all of the others and therefore notable.
At the righthand bend in Mogumber West Road, the road also commences to go downhill. Mr Eric Sarre, an engineer, said this combination of the curve and the hill creates a danger because a car will tend to lose traction when going down hills. I have no reason to doubt his expert opinion on this point.
When Constable Clarke attended the scene he observed tyre marks leading to the rear of the plaintiff's vehicle. This was a gravel road upon which, as a matter or ordinary experience, wheel marks will often be left. I have no reason to presume that the marks observed by Constable Clarke were other than the wheel tracks left by the plaintiff's car. Constable Clarke prepared a sketch on his report. He said that report would have been prepared back at the Gingin Police Station. It shows a right hand bend in the road. It shows the plaintiff's car up against a tree at the end of the bend and shows the wheel marks commencing on the left hand side of the road and crossing to the incorrect side of the road and then back again to the tree on the left hand side. Clearly this sketch is highly truncated. The evidence of Constable David Oxford was that he attended the scene of the accident on 18 October 1989 and prepared a diagram in his notebook. He said from the end of the right hand bend in the road to the tree was a distance of about 100 metres. He said the bend was about 140 metres around.
The defendant in its plea of contributory negligence pleads the plaintiff drove her car on the incorrect side of the road. The sketch by Constable Clarke tends to support that allegation. The plaintiff in her evidence denied having driven on the incorrect side of the road.
On 20 March 1990 the plaintiff was interviewed by a Constable Jones of the Major Accident Inquiry Section. In answer to the question (No 10):
"In your own words can you tell me how the accident occurred?"
the first two paragraphs were as follows:
"Well, you know what road we were on so I don't have to explain that to you. We were driving along as usual, we never drive fast along that road, its just a trundle and I know there's a slow S‑bend and its not a sharp S‑bend and as usual I approached it on the high side and just let it go down to the low side of the S then just came out of it.
This day the approach was the same cause (sic course) up on the high side, eased of the accelerator and then it just felt like someone or something had grabbed the rear driver's side wheel. The nose of the car instantly started to go across the road and in that short space of time."
I digress to give a brief explanation of the slope upon which roads in general and this particular road, are built. A straight road is built with a slight slope from the centre down to each side. The centre of the road is called the crown. The gentle slope is, of course, for drainage purposes. Where a road goes around a curve the outside of the curve is what is described as super elevated. This is to provide traction for a car because if on the outside of a curve the road sloped away there would be a tendency for the car to be thrown off the road. Accordingly, a left hand curve will be elevated on its right side and a right hand curve will be elevated on its left side.
What then is to be the meaning attributed to the plaintiff's statement to the police that she approached it on the high side and just let it go down to the low side? As she was going around the left hand bend it would not make any sense to think she would have been on the high side of that bend, namely, towards the centre or right hand side of the road. As she came to the right hand bend the high side is on the left. If she started off towards the left hand side of the road as she came towards the right hand bend and then crossed over towards the right hand side of the road she would then be on the low side of that bend. That would be consistent with cutting the corner as alleged by the defendant. It is also consistent with the sketch plan drawn by Constable Clarke.
Mr Calvert did not see the plaintiff's vehicle enter the right hand curve. Ms Fraser was not paying any particular attention. There is therefore no other evidence.
I am aware as a matter of ordinary common sense of the tendency of motorists driving around curves to cut the corner to flatten out the curve as that makes driving more comfortable. The centrifugal forces of a car driven around a curve are obvious. If the corner is cut a little then it has the tendency to reduce those forces. If the road is clear ahead, there is nothing inherently unsafe about cutting the corner on a country road.
The plaintiff's statement to Constable Jones and the sketch drawn by Constable Clarke lead me to the conclusion that the plaintiff did indeed drive her vehicle across the centre of the road as she went around the right hand curve. The defendant has pleaded as a particular of negligence that the plaintiff drove on the wrong side of the road. I do not accept that in doing so she was negligent in the sense of failing to take reasonable care for own safety and that of her passengers. On a good gravel road such as this and with a sufficient visibility ahead, driving on the wrong side of the road is not, in my opinion, negligent.
The plaintiff's evidence was that as she was driving around the right hand bend she felt her right hand rear wheel grab. This caused her to lose control and ultimately to crash into the tree. I have no reason to doubt the plaintiff's explanation as to the sensation immediately before losing control.
In her statement to the police the plaintiff said that gravel rolls to the low side of the bend because of the camber of the road. Mr Eric Sarre, an engineer, said that because of the actions of the wheels of a car going around a bend the tendency is for the gravel to be thrown to the high side. There were photographs taken at the scene the day of the accident and photographs taken in December the same year. None of those is particularly conclusive as to the spread of loose gravel on the road. Certainly, there appears to be some loose gravel towards the edge of both sides of the road whether on the curve or the straight. I am unable to say with any certainty the mechanics of exactly how the accident occurred. If the plaintiff drove the car across to the wrong side of the road and then was coming back her course would have taken her across the normal line of the traffic to some extent. That may have caused some impact with a little more loose gravel. The car the plaintiff was driving was a front wheel drive. She had not driven this car before. The family Holden is a rear wheel drive. Ross Winstan Dunkerton is an expert driver. He described the difference between the handling of front wheel as against rear wheel drive cars. He said that if the rear of a front wheel drive car started to slide, as appears from the plaintiff's description had occurred here, the car would tend to slide in the direction of its inertia, that is, in the direction it had been heading. The slide could be corrected by applying power to the front wheels. He said that was a difficult thing from a driver without experience of front wheel drive cars to do. He said that the natural tendency was to brake. In a rear wheel drive car this could assist, but not in a front wheel drive car. The initial loss of control might have been due to the dip in the road. It might have been due to the car crossing some loose gravel. Mr Bradford, on behalf of the plaintiff, complained that Mr Dunkerton's evidence of the cause of the accident went beyond the outline of his evidence. In closing Mr Bradford adopted the explanation as a possible cause and did not press his objection or seek an adjournment to deal with that evidence. I accept the explanation by Mr Dunkerton. The different car being driven by the plaintiff was the only different factor on the day of the accident.
The burden of proof being on the plaintiff, is for her to show how the accident occurred. If she is able to do that and to demonstrate a causal connection between the happening of the accident and some fault of the defendant then she will succeed. If she is unable to show with precision exactly how the accident occurred then the task of showing it was occasioned by some default on the part of the defendant will be more difficult. It is, of course not impossible. In Chance v Alcoa of Australia Ltd, unreported; SCt of WA; Library No 8070; 15 February 1990 Malcolm CJ said:
"Where there are possible competing causes it is sufficient if the evidence would support an inference that the defendant's negligence 'materially contributed' to the appellant's injury."
See also Shorey v PT Limited (2003) 197 ALR 410.
Although the road surface and the topography are issues, as I understand it, the plaintiff's main complaint is that there was a failure to place any warning sign of either the S‑bend or the right hand curve, and either alternatively or additionally, signs advising of a speed slower than 110 km/h should have been placed immediately before either of the curves.
The National Association of Australian State Road Authorities "NAASRA" is a body comprising of State Government Road Authorities. It makes recommendations for the construction of roads throughout Australia. Its objective is to attain a uniform standard of roadworks. It is not a body comprising local authorities. In 1970 NAASRA published a set of guidelines including guidelines for two lane country roads. In it, it made recommendations with respect to curves and hills and the way they should be constructed. In 1972 the defendant received a copy of the 1970 NAASRA guidelines. One of the arguments put forward by the plaintiff was that the defendant was negligent by failing to comply with the NAASRA guidelines.
The 1986 Australian Standards provided for advisory signs to be constructed. They provided for speed advisory signs where appropriate and for signs as to curves and hills and the like. According to the evidence of Mr Sarre and Geoffrey Cocks, another engineer, the safe speed for this curve, including the downhill part immediately towards the end of the curve, was 60 km/h. I accept their calculations. But against that the plaintiff and her husband had driven the road including the corner in much the same manner as they did on 13 October 1989. They had presumably therefore driven at about 70 km/h without difficulty. Mr Dunkerton's opinion was that 70 km/h was a safe speed. Even though the safe speed was 60 km/h, it does not mean it cannot be driven at a faster speed.
The plaintiff pleads the defendant was negligent in failing to erect a 60 km/h advisory sign. The defendant admits it did not erect such a sign. The defendant did not erect advisory speed signs on gravel roads. Because a gravel road can change due to weather and use, it was left to drivers to assess a safe speed to drive. This attitude was, according to Mr Cocks, proper practice. Interestingly, when the 1990 Australian Standards were published they drew a distinction between gravel roads and bitumen roads and advised there should be no advisory speed signs on gravel roads unless it was unlikely there would be any substantial change in the road surface. Mr Sarre said in his opinion a substantial difference was the kind that might occur in a cyclone prone area where there could be dramatic changes because of extraordinary weather conditions. I do not think that opinion was given as part of any expertise on his part. Mr Cocks referred to changing conditions due, for example, to heavy trucks. It is a matter of ordinary interpretation of the words used within the standards. In my opinion those words should be read to mean a change which could substantially alter the safe speed. Any other interpretation would not be logical. A gravel road can change because of weather conditions and such changes can have a substantial effect upon the safe speed. For example, a dry gravel road in the condition shown in the photographs will be quite different from the same road after rain. Heavy traffic and dry conditions can cause corrugations which again could have a substantial effect upon the safe speed of any curve.
Curves or hills in a gravel road are obviously different. Changes in weather conditions are not going to mean the curve or the hill flattens out or disappears. The plaintiff pleads the defendant should have had signs to warn her of the impending curves or at least the right hand curve and should have erected a sign warning her of the downhill slope at the end of it. The defendant admits there were no such signs.
There is no reason why such signs could not have been erected. The issue is whether the defendant failed in its duty to the plaintiff in not having them. The defendant's duty is to take reasonable care: it does not extend (as pleaded by the plaintiff) to ensuring the safety of road users (Brodie par 151). To do so it must erect signs to warn of dangers where it knows or ought to know such dangers exist. Mr Sarre acknowledged there needed to be some catalyst for the erection of such a sign. He acknowledged, and I think correctly, that a country Shire cannot be reasonably expected to engage professional engineers to look at every metre of every road within the Shire. Catalysts such as the occurrence of an accident or a complaint or an inspection will indicate there is a problem that needs to be rectified.
On Mogumber West Road closer to Brand Highway, is a bend known as Stolarski's corner. The defendant acknowledged this was a notoriously bad corner. No warning sign was erected there. It may be it should. The lack of a warning sign at Stolarski's corner is not evidence which, in my opinion, assists the plaintiff.
The defendants system was to have an annual inspection of all of the roads by the Shire Clerk, the work's foreman and the Shire counsellors for the particular parts of the Shire being inspected. In addition there were monthly inspections by the Shire Clerk and the foreman or works supervisor. I gather the monthly inspections were more to look at particular areas of concern rather than a general overview. Mr Norman Wallace had been Shire Clerk from 1960 until 1993. During that time he would have inspected the Mogumber West Road each year as part of that annual inspection and, no doubt, on other occasions as well. None of those inspections revealed any danger requiring alteration of alignment or signage. There had never been an accident at that corner of which the defendant had become aware. Mr Wallace said he could not recollect any complaint about the corner. Mr Kay had never been told of any problems at that corner. There is no record of any complaint having been made to the defendant. Mr Dunkerton said in his opinion the corner was quite safe to be driven at a reasonable speed which he considered to be 70 km/h. He said it was no different from most of the road. Mogumber West Road is a windy road having 11 curves in the nine kilometres between Brand Highway and the scene of the accident. Both the plaintiff and Mr Calvert said they drove along this road at about 70 km/h. Mr Sarre in his evidence spoke of a speed environment which he described as being the speed at which the eighty fifth percentile of motorists would be expected to drive. He said a danger occurs if, without warning, there is a change in the speed which has been established in that way. I do not accept that the recommendation of the curve as a 60 km/h curve is sufficient to mean it is so different from the rest of the road as to require special attention.

The defendant has not in my opinion breached its duty of care to the plaintiff in failing to erect an advisory speed sign or a sign warning of the topography of the area.
In 1992 there were alterations to West Mogumber Road. Some bends were changed and hills flattened. Some changes were made to the road in the area of the accident. Such changes are not evidence which assists the plaintiff. There is no evidence that the changes were in response to the accident. Even if they had been it would not necessarily show there was negligence on the part of the defendant prior to the accident.
In the absence of any adverse report received by the Council, it would be an unreasonable burden on a country local authority to have a professional engineer inspect every curve and hill in every road in the Shire.
The duty of care owed by the defendant to road users is to take reasonable precautions to avoid an unreasonable risk to their safety. The defendant had both the NAASRA and the ASA standards. The plaintiff argues that it had a duty to implement those standards. I do not agree with that proposition. As Kennedy J said in Commonwealth of Australia v O'Callaghan [2001] WASCA 276 Australian Standards are a guide and a breach of them is not of itself evidence of negligence. The defendant had a system of consulting with engineers from the Main Roads Department when it was reconstructing roads within the Shire. It would not follow that the Shire was obliged to accept the advice given because it could only do so in terms of its financial ability. The defendant did not employ its own engineer it being too small to do so. The plaintiff argues that if nothing else the defendant was obliged to consult with the Main Roads Department engineers so as to obtain advice with respect to compliance with NAASRA and ASA guides. The argument is that with only some 440 km of gravel roads within the Shire it would not have been an unreasonable task to have a programme of having the roads inspected and being advised with respect to compliance. No evidence was given as to the practicality of that proposition. Neither Mr Wallace or Mr Horton was asked. No evidence was called from the Main Roads Department as to how extensive the task might have been. For example, in this case the estimate of the safe speed of 60 km/h comes from an examination of an aerial photograph of the bend to establish the radius of the curve. When Mr Cocks was asked about a "crest" sign he said he would have to do the calculations. It is obviously more than just having an engineer drive along the roads. If the task of inspecting the roads in the Shire to obtain advice about compliance with NAASRA and ASA standards was reasonably feasible then I see no reason why the Shire should not have undertaken that task. But there is no evidence it was feasible. In the absence of evidence, I do not find the defendant should have had MRD engineer's report on the whole of the road network in the Shire.
In 1998 the road was bituminised. Again there were some changes made to the alignment of the road but again this is not evidence which is of assistance to the plaintiff.
Much has been made of the state of the road surface. The plaintiff said her right rear wheel grabbed. It was suggested this might have been in a windrow of gravel. The photographs show no excessive gravel. Sergeant Clarke described the road surface as good. Mr Dunkerton's evidence was that gravel would need to be 6" (150 mm) thick to "grab" a wheel. There is no evidence of anything like that. In her pleadings the plaintiff complained of the loose gravel on the road surface creating "a dangerous marble like effect" The gravel used by the defendant came from local gravel pits. It was not round like marbles. In any event loose gravel is part of a gravel road. The looseness of stones on top of the surface are part of the reason why motorists drive more slowly on gravel roads. As was said in Brodie (supra) par 160 the defendant is entitled to construct a road on the basis that users of it will, subject to possible inadvertence, use ordinary reasonable care. In my opinion the road surface was safe for a motorist using ordinary reasonable care.
Where the dip in the road commenced, the road changed colour. As seen on Exhibit 19 it is more orange. Vincent William Dazley Murray, a former works supervisor and foreman employed by the defendant said it was because of clay. From time to time the defendant did patch repairs on the roads to repair specific faults. Mr Calvert said he saw a grader working on the Mogumber West Road on the day of the accident. The suggestion is that this different coloured section of gravel was a patch and perhaps a recent patch and that it created a different road surface to the rest of the road and was thus a hazard. There are, I think, some difficulties with that theory. If Mr Calvert was suggesting that the grader had graded the section of the road where the accident occurred, I do not accept it. The photographs and the evidence of Mr Kay and others was that the road had not been graded for some time as could be seen by the absence of any grader wheel tracks (except on the very edge of the road), the way in which the vehicles had pushed the loose gravel to the sides and centre, and the leaf and other debris. If the grader was grading some other part of the road it is irrelevant to this accident. The fact that there is clay in the gravel on the dip does not necessarily mean it was patched. I note on Exhibit 19 an area just off the road surface which is also orange. It may be that the underlying soil is more clay than other areas. Even if the gravel is different, there is no evidence it has different qualities effecting driving on it. There is no evidence that this section of road was different on the day of the accident from the many previous occasions on which the plaintiff had driven it. I do not consider the difference in colour of the road is of assistance to the plaintiff.
The plaintiff complains the S‑bend created a blind corner. She complains the dip is blind and should have had a "crest" warning sign. That may well be so. But the danger of blind curves or hills is of a head‑on collision because motorists may stray to the centre of the road. This is not such a case. Even if there should have been warnings of a blind corner or crest, its absence has not caused or contributed to this accident.
If the defendant had breached its duty to the plaintiff it would only be liable if such breach had caused, or materially contributed to, the accident Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 per Kirby J at 482. It would have done so if the failure to put up any signs had in some way misled the plaintiff into thinking the road conditions ahead were better than they were.
The evidence in chief of the plaintiff was given by means of a proof of evidence prepared by her solicitors and confirmed by her as being true and correct. The other evidence of the plaintiff comes from the statement to the police, a statement to an SGIC investigator and an affidavit sworn in interlocutory proceedings. Documents like those have potential weaknesses. A statement to the police, unless it is verbatim, can be more the words of the police officer than the interviewee. Similarly, documents prepared by lawyers will be a statement as a result of questions by the lawyer and answers by the witness which are then transformed into the form of a statement.
Exhibit 4, the statement to the police in December 2000 does not suffer from any of those weaknesses. It is in a form of questions and answers and I think can be more literally accepted as being the plaintiff's words than the other documents. Amongst other questions and answers, the following are recorded:
"Q10In your own words can you tell me how the accident occurred?
AWell, you know what road we were on so I don't have to explain that to you. We were driving along as usual. We never drive fast along that road, its just a trundle and I know there's a slow S‑bend its not a sharp S‑bend and as usual I approached it on the high side and just let it go on down to the low side of the S then just came out of it…
Q15How fast were you travelling at along the gravel road prior to the S‑bend?
AWell we never usually go along there much above the 60 mark as the gravel along there is like marbles.
Q16But how fast were you going?
AI couldn't tell you I was too busy watching the road, I never entertain speed along that road.
Q18Is there loose gravel on the road?
AAlways, particularly in the bends.
Q19Is this gravel heaped up in a manner that would leave distinct tyre marks?
AThere's always gravel at the top and bottom of the S‑bend. There is not much at the top because it rolls down to the low side as the bends are on an angle.
Q20Do you know the road well?
AYes, its very changeable that's what makes it dangerous and that's why I exercise caution while driving down it.
Q23How long have you been driving on gravel?
AA fair while on and off for 12 years whilst I travelled to see my parents.
Q24Would you call yourself a good gravel driver?
AYes, I'm well aware of the dangerous (sic dangers)."
By way of contrast in par 5 of an affidavit of the plaintiff sworn 15 September 1995 the plaintiff said:
"I did not notice any warning signs in the bend of the road or any reduce speed limit signs. Neither was there any sign indicating that the road had recently been graded. Had I seen any such sign, I would certainly have slowed down and been a lot more careful."
Paragraphs 94‑96 of the plaintiff's proof of evidence read as follows:
"94.Although I had reasonable knowledge of the road I was not so familiar with the road that I knew the exact details of each bend in the road which I approached. I verily believe that prior notice of the bends along Mogumber Road was required to enable you to adjust driving and speed. The adoption of lesser speeds by recommended signage through the bends would also have been helpful to use as a constant reminder.
95.These would have avoided the accident since in my experience it was only usually when I was within the bend that I would have liked to slow down on occasions, but realising the danger of braking along gravel which was normally loose, I did not do so, but rather eased off the accelerator.
96.If there had been either an S bend, curve or speed warning sign prior to the commencement of the bend:
(a)I would have applied brakes gently or slowed down before the bend;
(b)I would have carefully negotiated the bend by being on extra careful lookout ahead;
(c)I would have safely negotiated the bend without colliding into the tree."
In her evidence at T 76 the following was said in cross‑examination:
"You said (in your affidavit of 15 September 1995):
I did not notice any warning signs in the bend of the road or any reduced speed limit signs.
There weren't any?---No.
But you didn't need them, did you, because you knew the road and you had already adapted to a speed to suit the surface of the road, hadn't you?---On the bend it would have been helpful, in hindsight.
In what way? You knew the configuration of the bend. You knew the surface of the road?---Because in the bend it was different to the road that I had just been travelling along, the rest of it.
You didn't tell the police that, did you?---I don't know what I told them about that bit.
In what way was it different?---Well, on the day it was different.
In what way?---They didn't behave as the rest of the road did, with the comfortable speed that I was travelling at.
But what was the difference about the road?---I don't know. Otherwise the accident wouldn't have happened."
The statements made by the plaintiff in the affidavit and in her proof of evidence and in her assertion in evidence that warning signs would have been helpful, materially conflict with what she told the police in December 2000. In my opinion the later statements are a reconstruction with litigation in mind and do not represent an accurate reflection of her state of mind at the time.
In Hoyts Pty Ltd v Burns [2003] HCA 61 Kirby J at par 54 said:
"Whether or not, strictly, such evidence (evidence of what the plaintiff would have done had she seen a warning notice) is admissible, it is commonly received in Australian courts. Presumably this practice emerged once it was established that the relevant test of causation applicable in Australia was a subjective one. Nevertheless, the evidence of what a claimant would have done if a non‑existent warning had been given by a hypothetical sign is so hypothetical, self‑serving and speculative as to deserve little (if any) weight, at least in most circumstances."
In my opinion even if the defendant ought to have erected advisory signs either as to speed or as to the topography of the road, the failure to erect such signs would not have had any affect upon the plaintiff's driving on 13 October 1989. She was not mislead as to the condition of the road by the absence of any signs.
There is one other matter which occurred during the trial with which I need to deal. The trial commenced on 12 May 2003 and continued for four days. It was then adjourned to allow the plaintiff further inspection of the defendant's documents. That arose because of the discovery of a minute of the Shire meeting held on 16 November 1989 which were as follows:
"It was also advised that the Mogumber West Road, in the vicinity of Council's gravel pit, could be hazardous due to a crest and loose gravel on a bend near the crest. The Shire Clerk advised that this would be investigated, with a view to erecting suitable signs."
In his evidence in May, Mr Wallace said there was a gravel pit at 9 km from Brand Highway. As the accident was at 9 km it seemed the minute should be investigated.
The plaintiff claimed this was a relevant minute which should have been disclosed. The defendant said it did not relate to the area of Mogumber West Road where the accident occurred and therefore was not relevant. The trial was adjourned to enable that minute to be investigated and also to allow further inspection particularly with respect to compliance or otherwise with NAASRA or guidelines or ASA Standards.
The trial was relisted for 12 July 2003 but did not proceed because the task of going through the defendant's records had not been completed and I directed a fairly wide ranging right by the plaintiff's solicitors to inspect the defendant's records.
The inspection was completed and some 161 pages of the documents which now comprises Exhibit 21 were produced at trial by the plaintiff bearing, it is claimed, upon her claim against the defendant. The costs of the two adjournments and the costs of the additional inspection were reserved. The view I had and still have was that if the defendant had withheld any documents relevant to the proceedings then it might well be that the additional costs should be borne by the defendant in any event.
In my opinion there are no documents of any significance which were found by the plaintiff. There were documents relating to complaints about the standard of Mogumber West Road from time to time. There were complaints that the road needed grading and there were other documents relating generally to the standards of maintenance of the roads within the Shire. It may well be that some of those documents reflect adversely upon the defendant's standards. It may well be that they do not because all we had was the complaints and some explanation by the defendant as to some of them through the course of the part of the trial in December. However, the trial was not with respect to such matters and it is unnecessary for me to make any decisions with respect to them. The fact is that Mogumber West Road on 13 October 1989 was in good condition. There is nothing to my mind that should have been disclosed by the defendant that was not disclosed. The plaintiff argued that the obligation to discover documents includes the discovery of documents that might lead to some further line of enquiry. Whilst I do not disagree with that general proposition (Seaman 26.1.4) it seems to me in this case there was little if anything found which fits within that description. For example, the fact that there had been complaints about other parts of Mogumber West Road on other occasions would neither be relevant nor lead to any train of enquiry with respect to the state of the road where the accident occurred. The minute of the meeting of 16 November 1989 was the matter of considerable conjecture. The plaintiff argued the description fitted the curves where the accident occurred. The evidence before me was that there were three gravel pits, one at either 3.7 or 3.9 km from Brand Highway, one at 7.7 km from Brand Highway and one at 14.5 km from Brand Highway. Mr Wallace when recalled in December said his earlier evidence of a gravel pit at 9 km was an error. He said he had been thinking of 9 miles. 14.5 km is 9 miles. I accept Mr Wallace's explanation of the error. The accident occurred when the plaintiff hit a tree 9 km from Brand Highway. Prior to the tree was a downhill slope and then a reverse curve. The plaintiff argued that the beginning of the first of the curves was only some 600 metres from the gravel pit at 7.7 km. There was no direct evidence as to the section of the road to which the minute referred. Mr Kay said he considered from its description that it was the first gravel pit because there was both a curve and a crest at that point in the road. He said trucks as they left the gravel pit would sometimes spill part of the load which would then be cleaned up by the front end loader engaged in the gravel pit for the purpose of loading. He said the description did not fit the reverse curve prior to the 9 km mark because there would not be gravel spilt on those curves because it was a sufficient distance after trucks would have left the gravel pit. Mr Wallace said he thought the minute referred to the pit at 14.5 km because gravel was often spilt there by unauthorised users. But there is neither a crest nor bend at 14.5 km I prefer the evidence of Mr Kay that it referred to the first gravel pit. My opinion of Mr Kay's description being the correct one is aided by the fact that the land upon which this gravel pit was situated was actually purchased by the Council. As I understand the position gravel is quarried on private land and paid for by the Council but it would not be usual for the Council to actually own the land. Mr Bradford on behalf of the plaintiff argued strongly for a finding that the minute referred to the gravel pit at 7.7 km. He said in his final submissions that the proposition that gravel would not be spilt on the reverse curves was contrary to common experience suggesting that any of us following a gravel truck even down a straight road like a freeway would have experienced gravel spilling from the truck. I regret I am unable to come to that conclusion. I certainly could not take judicial notice of any such occurrences. It may be that dust from the gravel might blow off but I am certainly not prepared to find that gravel itself would do so. The evidence of Mr Kay was very strong as to the fact that the gravel once the truck has straightened up will not spill as the truck moves along.
In my opinion the specific inspection of the minutes of the Shire should always have been undertaken by the plaintiff. It was clearly the obvious source of information and a source from which enquiry might well follow. It appears that was not done prior to the trial. Had it been done then that would have been work necessarily occasioned as part of the preparation for trial. Had it been done the trial might well have been longer than the original time set down. The defendant to its credit does not seek an order that the plaintiff pay the costs occasioned by the two adjournments but rather suggests they be costs in the cause of the action. As I do not find there was anything done or not done by the defendant which occasioned the further enquiry, I direct that the costs of the two adjournments and the costs of further inspection of documents be costs in the cause of the action.

I do not consider that there was anything reckless or dangerous about the manner in which, on the evidence, the plaintiff was driving. She seems to have been driving in a reasonable and sensible manner. In hindsight it may well be that her speed going into the right hand bend was a little faster than it ought to have been. But hindsight is all very well. It

is not something that creates culpability. I do not consider the defendant has failed in its duty to the plaintiff. Nor do I consider there is evidence from which I could properly find the plaintiff has failed to take reasonable care for her own safety or the safety of her passengers. This was simply an unfortunate accident not caused by neglect by either the plaintiff or the defendant. There is not necessarily fault in every occurrence in life.

[2004] WADC 1

15 January 2004