Clare & Gilbert Valleys Council v Kruse
[2019] SASCFC 106
•6 September 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CLARE & GILBERT VALLEYS COUNCIL v KRUSE
[2019] SASCFC 106
Judgment of The Full Court
(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)
6 September 2019
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - PARTICULAR PERSONS AND SITUATIONS - MOTOR VEHICLE CASES
In March 2011, the respondent's vehicle collided with a grader operated by an employee of the appellant Council. The respondent sued the Council for damages, alleging that the Council was negligent in how it conducted the grading operation. The trial Judge found negligence and causation were proved but also found the respondent guilty of contributory negligence, apportioning liability 50/50. The Council appeals against the finding that it was negligent and on causation, and the subsequent apportionment.
Whether the appellant breached the appropriate standard of care - s 34(1) Civil Liability Act - factual causation - scope of liability - whether the respondent’s actions were the sole cause of his injuries - apportionment of liability - whether the parties were equally responsible for the collision
Held (by the Court), dismissing the appeal:
1. The appellant failed to make an appropriate risk assessment and failed to place an additional earlier speed restriction/warning sign. The trial Judge correctly found that the appellant was negligent (at [72]).
2. The trial Judge correctly found that the appellant’s negligence was causative of the respondent’s injuries (at [101]).
3. The trial Judge was correct in finding that both parties were guilty of a serious departure from the appropriate standard of care and the apportionment made was within the range reasonably available on the evidence (at [121]).
Civil Liability Act 1936 (SA) ss 31, 32, 34, 50; Civil Liability Act 2002 (NSW) s 5D, referred to.
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25; Wyong Shire Council v Shirt (1980) 146 CLR 40; Shaw v Thomas [2010] NSWCA 169; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; Macks v Viscariello (2017) 130 SASR 1; D&V Services Pty Ltd v SA Power Networks [2018] SASCFC 92; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Wallace v Kam [2013] HCA 19; Barnes v Hay (1988) 12 NSWLR 337; Henville v Walker 206 CLR 459; Chappel v Hart (1998) 195 CLR 232; Rogers v Whitaker (1992) 175 CLR 479; Banovic v Perkovic (1982) 30 SASR 34; McIntyre v Ridley District Council (1991) 56 SASR 343; Pennington v Norris [1956] HCA 26; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Stoeckl v Harpas (1971) 1 SASR 172; Van Den Heuvel v Tucker (2003) 85 SASR 512; Brooks v Police (2013) 116 SASR 234; Walton v Rowbottom [1986] SASC 9362 (17 September 1986); British Fame (Owners) v Macgregor (Owners) [1943] AC 197; Wardle v Fowler [2002] SASC 380; Grantham v State of South Australia (1975) 12 SASR 74, considered.
CLARE & GILBERT VALLEYS COUNCIL v KRUSE
[2019] SASCFC 106Full Court: Blue, Lovell and Hinton JJ
THE COURT:
Introduction
Main Road 45 is a road near Clare. On 1 March 2011 Mr Friebel, an employee of the Council, was operating a road grader while performing maintenance grading on Main Road 45 north of its intersection with Steelton Road (‘the intersection’) on a stretch of the road that was of gravel construction. The job required the grader to be driven, from time to time, on the incorrect side of the road, that is, towards any oncoming traffic and when grading on either side of the road at slow speed.
Mr Kruse, the respondent, was driving his Holden Rodeo north along Main Road 45; he was following a semi-trailer. The road was initially of bitumen construction but changed to gravel approximately one kilometre south of the intersection. Just south of the intersection, the semi-trailer suddenly created a dust cloud, severely restricting visibility for Mr Kruse. Shortly after he drove through the intersection, Mr Kruse’s vehicle collided with the grader. At all times Mr Kruse’s vehicle remained on the correct side of the road. Mr Kruse sued the Council, alleging that the grading operation was conducted negligently, and sought damages for injuries he suffered in the collision. Quantum was agreed and liability was the only issue at trial. The trial Judge found negligence proved but also found that Mr Kruse was guilty of contributory negligence. The Judge apportioned liability 50/50. The Council appeals against the judgment.
Issues on appeal
The appellant Council contends that the Judge:
1ought to have found that it had not breached its standard of care; or
2that any breach did not cause the collision; or
3that Mr Kruse was solely responsible for the collision; or
4that Mr Kruse should bear a greater responsibility for the collision than the Council.
Law of negligence
The elements of a claim in negligence are that:
1the defendant owed to the plaintiff a duty of care;
2the defendant breached that duty of care; and
3the plaintiff suffered damage which was caused by the breach of duty, and was not too remote in law.
The content of these elements is now governed, to an extent, by the provisions of the Civil Liability Act 1936 (SA). If a plaintiff proves his or her claim in negligence, the question of contributory negligence may arise. Contributory negligence does not deny a plaintiff’s claim altogether but may reduce the plaintiff’s damages.[1]
[1] Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 at 29 per Hayne J. The common law position is preserved by s 50 of the Civil Liability Act 1936 (SA).
The Council conceded that it owed to Mr Kruse a duty of care. All other matters, including contributory negligence, were contested.
Grounds of appeal
The Council relies on the following grounds:
1The trial judge erred in finding the Council had a duty to place at least one additional temporary sign at the site of its works;
2The trial judge erred in failing to find that Mr Kruse’s own negligence was the sole cause of Mr Kruse’s loss;
3In the alternative to grounds 1 and 2, the trial judge erred in finding that the Council’s failure to place at least one additional temporary sign at the site of the works was a cause of Mr Kruse’s loss; and
4In the further alternative to grounds 1, 2 and 3, the trial judge erred in assessing Mr Kruse’s contributory negligence at 50% and not substantially higher.
Background
Mr Kruse was driving north along Main Road 45. A portion of the road is unsealed. The Judge found that the road near the point of the collision was dry and dusty and that the speed limit was 100 kilometres per hour. The collision occurred just before midday, a short distance north of the intersection.
The grader was working north of the intersection. The grading work, which started approximately 100 to 150 metres north of the intersection and continued for about two kilometres north, required the grader to work on both sides of the road and, on occasions, travel on the side of the road that would be in the direct path of, and heading towards, oncoming traffic. The grader, shortly prior to the collision, was travelling south at a low speed on the outer edge of the western side of the road. The grader was therefore occupying a portion of the road on which oncoming traffic would travel. The grader had a flashing light mounted on its roof that could be seen, in clear conditions, from at least 250 metres away.
Photographs of the collision scene establish that the point of collision was north of the intersection but in an area that had clearly been recently graded. Much loose gravel can be seen on the road in those photographs.
The grader driver, Mr Friebel, partially completed a Work Traffic Management Record prior to commencing the work. He recorded that the weather was dry, work visibility was good and expected traffic volume was low. He added later, having started his grading, that the road was dusty in places. Details of the collision were later added to the document.
Mr Kruse was driving his Holden Rodeo, following a prime-mover linked to a semi-trailer (‘the semi-trailer’) north along Main Road 45. He was familiar with the road and its conditions, having travelled on it many times. He gave evidence that he was travelling at 100 kilometres per hour and noted that he was gaining on the semi-trailer, eventually catching up to it just before the intersection. Approximately one kilometre south of the intersection, the surface of Main Road 45 changed from sealed to unsealed. A permanent sign warned road users of the change and that they should “Drive Carefully”. Just before the semi-trailer passed through the intersection, it caused a significant cloud of dust to rise from the road. Mr Kruse’s vehicle was engulfed in the cloud of dust. The driver of the semi-trailer had clear vision of the grader driving towards him on the road and moved his vehicle into the centre of the road to pass the grader. The grader was also engulfed in the cloud of dust and slowed down, becoming almost stationary. The grader driver could not see Mr Kruse’s car approaching. Mr Kruse, who was blinded in the cloud of dust, slowed down and moved to the left, but collided with the front of the grader at a low speed. The precise point of the collision was not identified but it occurred approximately 150 to 200 metres north of the intersection.
The Judge found that Mr Kruse had driven “blind” for approximately 300 metres.
There was a single sign indicating the presence of the grader for vehicles travelling north along Main Road 45. The sign was yellow with “Grader Ahead” written in bold black lettering. It was located approximately 50 metres south of the intersection. Mr Kruse did not see the sign due to the dust cloud.
Mr Kruse’s evidence at trial was contested. The driver of the semi-trailer, Mr Busch, gave evidence, as did Mr Friebel, the grader driver. A number of the Council’s employees gave evidence about the Council’s responsibilities, their procedures governing performance of those responsibilities and the equipment they had available. An issue at trial was whether the Council ought to have used a water cart to dampen the road surface when the grader was operating, thereby reducing the dust. The Judge found that the Council was not required to use a water cart on this job. There is no challenge to that finding.
On appeal, there is no challenge to any of the factual findings of the Judge. It is therefore unnecessary to analyse the evidence in detail. The Judge did not totally accept the evidence given by Mr Kruse. The Judge made the following findings of fact:
·Mr Friebel, the grader driver, was performing maintenance work on 1 March 2011 on Main Road 45;
·The maintenance grading commenced from approximately 150 metres north of the intersection;
·Main Road 45 was partially sealed and partially gravel;
·South of the intersection the road surface changed from sealed to unsealed. A sign indicated the change in road surface and advised users to “Drive Carefully”;
·The collision occurred on an unsealed part of Main Road 45 and on a section of the road where Mr Friebel was performing maintenance work;
·Give Way signs were erected on Steelton Rd giving vehicles using Main Road 45 priority;
·Grader Ahead signs were placed on Steelton Rd as well as Main Road 45 (in both directions);
·Mr Friebel placed the relevant Grader Ahead sign approximately 50 metres south of the intersection;[2]
·Mr Busch, the semi-trailer driver, as he approached the intersection had an unobstructed view of Main Road 45 for approximately one kilometre north of the intersection;
·Although he did not remember seeing the Grader Ahead sign, Mr Busch observed the grader when he was approximately 300 metres from it and moved to the centre of Main Road 45 to pass it;
·When he observed the grader, Mr Busch was travelling at about 80 kilometres per hour. He did not change speed as he passed the grader;
·Mr Kruse was travelling at a speed of approximately 100 kilometres per hour when the road surface changed from sealed to unsealed. His speed did not alter at that stage;
·The “ball of dust” created by the semi-trailer arose before the intersection;
·Mr Kruse’s vehicle was engulfed in the dust and he travelled approximately 300 metres with no visibility before the collision;
·The time between the semi-trailer passing the grader and the collision was “quick” and less than the 20 seconds estimated by Mr Kruse;
·Mr Kruse apologised to Mr Friebel for being so “close to the back of the truck”.
[2] Other witnesses put it slightly further south of the intersection.
The Judge did not make a specific finding as to the time between the semi-trailer passing the grader and the collision occurring. However, he found Mr Friebel to be an honest and reliable witness. A fair reading of the Judge’s reasons indicates that he relied on the evidence of Mr Friebel that the time between the semi-trailer passing and the collision occurring was no more, and possibly less, than five seconds. This is consistent with his finding that the Mr Kruse failed to keep a “safe distance” behind the semi-trailer.
In relation to the actions of the Council, the Judge made the following findings:
·The placing of only one sign, the Grader Ahead sign, was “quite inadequate”;
·The Grader Ahead sign said nothing about an appropriate speed although reducing speed would be “common sense”;
·There was a range of other signs available to be used by the Council;
·A proper risk assessment would have revealed the need for more signage;
·All drivers may be distracted from time to time and with additional signs there is an increased likelihood of drivers being alerted to different risks;
·There should have been additional signs placed further back than the Grader Ahead sign, warning drivers to “slow down” or giving a “low maximum” speed for vehicles approaching and passing the grader;
·A significant contributing factor for the collision was the amount of dust in the air;
·The bigger and faster the vehicle the greater the amount of dust kicked-up and dragged along by the “draughting action of the vehicle”;
·The dust would have been less if the Council had put up signs significantly restricting the speed of any vehicle over the graded area; and
·To restrict the speed of a vehicle was a task that was “simple and comparatively” cheap.
The judgment
The Judge, having discussed the evidence, made findings related to the driving of Mr Kruse before considering whether Mr Kruse had established negligence against the Council. Having made findings against Mr Kruse, it was only then that the Judge considered the case against the Council. During his discussion about the case against the Council, he made some findings related to the question of causation; he did not address the question of causation separately. On appeal, the Council complained about the absence of findings on causation as well as the imprecision in some of the Judge’s findings about its case. We deal with those issues when considering the grounds of appeal.
The arguments on grounds 1, 2 and 3 substantially overlap.
Ground 1: Negligence
This ground of appeal challenges the Judge’s finding that the Council breached the appropriate standard of care. The Council submits that the Judge erred in finding that it had an obligation to place additional temporary signage at the site where the grader was operating.
At trial and on appeal, the Council conceded that it owed a duty of care to road users in and around the use of the grader on a public road. The duty of care is to be discharged by the exercise of reasonable care. It does not impose a more stringent or onerous burden. Whether the Council exercised reasonable care was one of the issues at trial and on appeal.
Actions in negligence in South Australia are governed, in part, by the Civil Liability Act 1936 (SA) (‘the Act’). For the purposes of this ground of appeal, ss 31 and 32 of the Act are relevant.
Section 31(1) prescribes the relevant standard of care:
31—Standard of care
For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
Section 32 prescribes the extent of the duty to take precautions against a risk of harm:
32—Precautions against risk
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
Section 32 of the Act codifies what is known as the “Shirt calculus” as set out by Mason J in Wyong Shire Council v Shirt.[3] While the sections of the Act mentioned generally reflect the common law, there are some clarifications or differences. Foreseeability of risk has a specific definition, namely, what a person knew or ought to have known. The not “far-fetched or fanciful” test, as proposed in Shirt[4] has been replaced by a test that a risk be “not insignificant”. In Shaw v Thomas,[5] Macfarlan JA with whom Beazley and Tobias JJA agree, when dealing with the identical provision in the Civil Liability Act 2002 (NSW) observed:[6]
Under the general law relating to the tort of negligence it is well established that it is unnecessary “for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable” (See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120 – 121; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [64]). Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be “not insignificant” (compare Doubleday v Kelly [2005] NSWCA 151 at [11]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [42] – [43]).
In Wyong Shire Council v Shirt, Mason J referred to a risk “which is not far-fetched or fanciful” as being “real and therefore foreseeable” (at 48). The requirement in s 5B(1)(b) that the risk be “not insignificant” imposes a more demanding standard but in my view not by very much.
We accept that the statutory test is marginally more demanding.
[3] (1980) 146 CLR 40 at 47-48 per Mason J.
[4] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48 per Mason J.
[5] [2010] NSWCA 169.
[6] Shaw v Thomas [2010] NSWCA 169 at [43].
The approach to be adopted by courts in a negligence case was discussed by Gummow J in Roads and Traffic Authority of NSW v Dederer.[7] Gummow J stated:[8]
First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt.
(Citations omitted)
[7] (2007) 234 CLR 330.
[8] Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at 337-338 per Gummow J.
While duties of care may vary in scope, it is fundamental that they are all to be discharged by the exercise of reasonable care.[9] A court must keep in mind that an obligation to exercise reasonable care is not an obligation to prevent harm occurring to others. The tribunal of fact must avoid using hindsight to find negligence.[10] Hindsight bias can lead to an assessment of the quality of the decision not by whether the process was sound but by whether its outcome was good or bad. It is a trap to think that what makes sense in hindsight was necessarily predictable.[11]
[9] Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at 347 per Gummow J.
[10] Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [34] per McHugh J.
[11] Macks v Viscariello (2017) 130 SASR 1 at [538] per Lovell J, Corboy and Slattery AJJ.
In determining the question of breach of duty, it is important to identify the risk of harm to which s 32(1) refers. The risk must be foreseeable (s 32(1)(a)) and not insignificant (s 32(1)(b)). It is only after the correct identification of the foreseeable risk that a court can determine what a reasonable response to that risk would be (s 32(2)).[12] The risk identified here is that dust in and around the area where the grader was operating may substantially reduce visibility and therefore obscure the presence of the grader.
[12] D&V Services Pty Ltd v SA Power Networks [2018] SASCFC 92 at [39] per Lovell J.
While the Judge did not approach the matter in the precise manner set out in s 32 of the Act, it is clear that, when making his judgment, he made the appropriate findings of fact.
The Judge found that additional signs warning of the presence of a grader or a “low maximum” speed sign for vehicles approaching and through the grading area should have been put in place.
The Council submits that the findings were:
1inconsistent with the unchallenged evidence of the applicable written standards and industry practice;
2unsupported by any evidence; and
3influenced by irrelevant considerations.
Standards and Industry Practice
Industry custom and practice can guide, but not determine, whether a person is in breach of a duty of care. They can be of assistance in determining what is reasonable in the conduct of a particular trade, business, profession or activity. However, when the risk of injury is high, the potential effect of injury is serious and the cost of eliminating the risk of injury is small, it is unlikely that industry custom or practice will negate a finding of negligence.[13]
[13] Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [73] per McHugh J.
Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently. Compliance with common practice as showing that a defendant acted reasonably should be displaced only when there is a persuasive reason for concluding that the common practice in the field of activity fell short of what reasonable care required.
The Council relied upon two documented standards - the Australian Standard 1742.3 “Manual for Uniform Traffic Control Devices”, in particular the section entitled “Maintenance grading and resheeting”[14] (‘the Australian Standard’), and the Field Guide to Traffic Control Devices for Work Zone Traffic Management (‘the Field Guide’).[15] The latter document, published by the South Australian Government, is a compacted, or shortened, version of the Australian Standard.[16] The two standards are very similar but have some differences. The Australian Standard states that where there are differences between it and the Field Guide the Australian Standard prevails. The standards are convoluted and have a confusing structure.
[14] Standards Australia, Australian Standard 1742.3: Manual of uniform traffic control devices – Traffic control for works on roads (Standards Australia, 4th ed, 2009) page 72.
[15] Department of Transport, Energy and Infrastructure, Field Guide: Traffic Control Devices for Workzone Traffic Management (Government of South Australia, Version 7, 2012).
[16] Standards Australia, Australian Standard 1742.3: Manual of uniform traffic control devices – Traffic control for works on roads (Standards Australia, 4th ed, 2009) page 181.
Did the Council comply with the Standards?
Mr Durkay, the supervisor of Mr Friebel, considered there to be a difference between “maintenance” grading and “patrol” grading. He said that Mr Friebel was performing patrol grading, not maintenance grading. If that evidence were to be accepted, neither standard would be applicable. However, the trial and appeal were conducted on the basis that Mr Friebel was performing maintenance grading and the work he performed on the day was consistent with maintenance grading. We approach the matter on the basis that the work performed by Mr Friebel was covered by the maintenance grading standards.
Both the Australian Standard and the Field Guide state that, where maintenance grading is undertaken on an unsealed road and:
1there is room for opposing traffic to pass the grader without driving off the roadway; and
2sight distance to the grader’s mounted warning device is greater than or equal to 250 metres throughout the section of the road being worked on;
no advance working signs are required.
Mr Friebel gave evidence that, in his opinion, both conditions were met. The Council contends that the signage placed on the roadway by Mr Friebel therefore exceeded either standard. That submission and how the standards should be interpreted require further consideration.
Mr Friebel stated that he was aware of the requirements of the Field Guide and kept a copy of it in the glovebox of his ute. He did not take it on site. He attended at his work at around 7 am. His supervisor gave him the job and he was told to go and “sweep over the section of Main Road 45 from Steelton crossroad” to, he thought, Schultz Road. He was given no other instructions. He was aware that the nearby wind farm company had been using Main Road 45 to transport equipment, including heavy equipment, and that the company, not the Council, had maintained the road for many months.
Prior to starting work Mr Friebel filled out, partially, a pro-forma document headed “Work Traffic Management Record”. He referred to the document as a “sign sheet”. Apart from recording the type of work to be performed, Mr Friebel recorded the expected weather (dry), expected traffic volume (low) and work visibility (good) before leaving the depot. The document lists various types of signs that can be considered for the work to be performed. Mr Friebel recorded that he was taking four Grader Ahead signs. The form contains a separate area to record the taking, and use, of speed limits signs. Mr Friebel did not take any speed limit signs.
When dealing with the worksite and what signs should be used, the document contains a reference to signs “in accordance with AS 1742.3 diagram”. Australian Standard 1742.3 contains numerous diagrams throughout its 128 pages but none in the section headed “Maintenance grading and resheeting”. The Field Guide contains a diagram in the relevant section[17] which refers to 4.2 of the Australian Standard. However, 4.2 contains no relevant diagram.[18] Mr Friebel appeared to rely on the Field Guide diagram; that diagram does not refer to the use of any speed limit signs.
[17] Department for Transport, Energy and Infrastructure, Field Guide: Traffic Control Devices for Workzone Traffic Management (Government of South Australia, Version 7, 2012) page 180.
[18] 4.2 in the Australian Standard contains a diagram but it deals with signs and restrictions to protect workers on static work sites.
The Field Guide draws a distinction between “advance working signs” and “speed limit” signs, as does the Australian Standard. The reason for the distinction is found in the part of the Australian Standard dealing with works on unsealed roads and including maintenance grading. It relevantly states:[19]
[19] Standards Australia, Australian Standard 1742.3: Manual of uniform traffic control devices – Traffic control for works on roads (Standards Australia, 4th ed, 2009) page 71.
General
The following treatments are permitted on unsealed roads in recognition of the generally lower volumes and traffic speeds encountered on those roads than on sealed roads and the need to be economical in the expenditure of resources on these low usage facilities. Since they could be seen as a partial relaxation of safety standards, it is vital that a risk assessment (see Clause 2.2.3) be made of the proposed adoption of these treatments in particular environments taking particular account of factors such as traffic volume and speed, road geometry, width and surface condition, and the general behaviour of road users.
(Underlining added)
The Australian Standard assumes that traffic speeds on unsealed roads will be lower than on sealed roads. It recognises that the treatments permitted by the Standard involve a partial relaxation of safety standards and that it is “vital” that a risk assessment be carried out taking into account the factors mentioned.
The use of speed limit signs according to both the Australian Standard[20] and the Field Guide[21] is discretionary and, on a fair reading of the Australian Standard and the Field Guide, not necessarily dependent on what advance working signs may be applicable. That is, consideration must be given to using speed signs irrespective of the need to have an advance working sign. Self-evidently the advance working sign, if the presence of the grader is obvious, adds nothing to the information available to a road user. It says nothing about a safe speed to approach and pass the grader. Mr Friebel’s evidence about his approach to the Australian Standard and/or the Field Guide needs to be assessed against that background.
[20] Standards Australia, Australian Standard 1742.3: Manual of uniform traffic control devices – Traffic control for works on roads (Standards Australia, 4th ed, 2009) page 72 at 4.5.2(a)(ii)(c).
[21] Department for Transport, Energy and Infrastructure, Field Guide: Traffic Control Devices for Workzone Traffic Management (Government of South Australia, Version 7, 2012) page 180. Point 8 states “The appropriate speed limits may be applied. Set up a speed zone of 60km/h or 40km/h (to suit conditions)…”
Mr Friebel considered that the obligation was on an approaching vehicle, having seen the Grader Ahead sign, to slow down “before it even comes to a grader”. He considered that it was the driver’s responsibility to “drive to the conditions of the road”. For the type of work he undertook on the day in question, he would not carry speed restriction signs as the Council would “not normally use them”.
When asked about the approach of the semi-trailer Mr Friebel said:
QYou said that you knew the truck was going to kick up a lot of dust. How did you know that.
AWell, it was going at a fair rate of speed and most trucks that will pass you, if a truck was going to pass you, would slow down and minimise any dust. This truck come past me fairly fast.
QYou said about 80 km/h.
AWhich is fairly fast going past a machine.
QBut within the speed limit for that road.
AYes, but most people slow down when there is a grader on the road.
(Underlining added)
Mr Friebel’s expectation was that vehicles passing his grader would slow down, thereby reducing the dust produced. The semi-trailer driven by Mr Busch did not do so.
Mr Durkay, Mr Friebel’s immediate supervisor, confirmed that the Council did not use speed limit signs when patrol (maintenance) grading. Mr Smith, a team leader of the Council’s construction site works, stated that no maximum speed limit was put on any unsealed road. He thought that this was for policy reasons, as if there was a maximum speed sign a driver would think they could drive at that speed. He considered that the obligation was on the driver to “drive to the conditions of the road”.
Mr Durkay thought that permission was needed from the Department of Transport before a permanent maximum speed sign could be placed on the road. However, there was no doubt that Council employees, when working in an area, could place an interim speed restriction sign. They just did not consider doing so when performing maintenance grading.
The Council’s submission that it exceeded, or indeed complied with, the standards cannot be sustained.
It could not be said that Mr Friebel ever performed a risk assessment as required by the Australian Standard and the Field Guide. His entering information about the weather and visibility could not be described as a risk assessment. His attitude was that, due to the job he was asked to perform, no speed limit signs would ever be used. This is despite the Field Guide suggesting that a speed zone, to suit the conditions, be considered. Unsurprisingly, the Judge found that no proper risk assessment was undertaken and that finding is not challenged. Mr Friebel assumed that if the grader was working and could be seen, traffic would slow down when passing. That assumption should not have been made.
Mr Friebel, in not performing a proper risk assessment, was simply following the practice adopted by the Council. He was not instructed to make a proper risk assessment and, when performing maintenance grading, it was never done. Mr Friebel suggested that putting speed signs out would take too long and that he would get “bugger all work done in a day”. To put out speed signs, as Mr Avery later stated, would only take about five minutes of the work day.
Clearly Mr Friebel considered that the semi-trailer that passed him travelling at 80 kilometres per hour was travelling too fast for the conditions. His evidence established that he considered the onus to be on the approaching driver to drive to the conditions and slow down as they approached the grader. Thus, he considered the driver to have the responsibility to slow down to a lesser, and self-evidently, safer speed. This, he expected, would minimise the dust problem. Therefore there was no need for a speed restriction sign. This appears, from the whole of the evidence, to have been the attitude of those instructing Mr Friebel as well. Mr Smith, a team leader of the Council’s construction site works, gave evidence mainly on the topic of the use of the water cart. Like Mr Friebel, he considered that the onus was on drivers to drive to the conditions.
As already stated, Mr Durkay confirmed that the Council did not use speed restriction signs when performing patrol (maintenance) grading. Mr Durkay had inspected the condition of Main Road 45 a few days before the collision occurred. There had been complaints from residents about the state of the road. He saw nothing about the condition of the road that suggested to him that he needed to send a water cart to assist Mr Friebel with the grading operation. That evidence needs to be contrasted with his decision to send the water cart out after the collision occurred. Mr Durkay ordered the water cart to attend the scene and dampen the road surface to keep the dust down because of the “traffic that was coming through”. He explained his decision as being due to some sightseers, the ambulance and the CFS vehicles.
While we accept that Mr Durkay’s decision should not be seen as an admission that a water cart was necessary as part of the grading job, his evidence suggests, and strongly suggests, that conditions around the collision site were particularly dusty.
A permanent speed restriction sign, of even 100 kilometres per hour, was not put on the road for “policy reasons”. However, there was nothing to stop a temporary sign being put in place if the conditions required it.
Apart from the Australian Standard and the Field Guide, the Council relied on the practice of other councils. Mr Avery, who had experience working with councils since 1974, gave evidence of his knowledge of the practice of other councils. While he largely dealt with the topic of water carts, he stated that it was not the usual practice for other councils to use temporary speed limits for patrol (maintenance) grading. He conceded, appropriately, that council areas differed in the construction of the roads, the material used in the construction, the time of year when maintenance grading was done and the procedures adopted to assess the risk. His evidence carried only minimal weight.
Discussion
Far from complying with the Australian Standard, the evidence established that the Council breached the Standard in that no risk assessment was made by either Mr Friebel or Mr Durkay. While Mr Friebel entered some non-contentious information into the Work Traffic Management Record, he did not make any assessment of risk. Mr Durkay attended the site a few days before the incident due to complaints about the road surface. He made no assessment of the risk; he simply decided what work was to be done.
The two employees made no assessment of the risk in part because the established practice was not to use other signs when performing this type of work. It simply did not occur to either of them that they should assess the site for risk. An assessment needed to be made not just of the road surface where the work was to be performed but also of the surface leading up to the work area even though the grader was not operating there.
The evidence established that both employees knew that the wind farm company had overseen maintenance of the road in the preceding 6 to 12 months. Heavy vehicles had been using the road. Mr Friebel noticed, when he attended the site, that the road had a different type of surface in parts where maintenance had been performed. He made a note at the time that it was “dusty in places”. He did not consider changing the signage despite that observation. He had not carried speed restriction signs to the site. The work was being performed in February rather than cooler and wetter months when such work was normally performed. When Mr Durkay attended on the day of the collision, he ordered a water cart to attend the site and dampen the road surface because of the dust. There was no suggestion that the condition of the road changed between his visit a few days earlier and the day of the collision. The fact that the few vehicles and people who attended the site could cause sufficient dust to require a water cart is suggestive that the road conditions were poor and conducive to the production of dust. Both employees knew that the speed limit in the area was 100 kilometres per hour and that the grader would be working, at times, on the wrong side of the road against oncoming traffic and would be working slowly. They were not aware that the Australian Standard required a proper risk assessment due to the partial relaxation of safety standards.
A proper risk assessment would have led to the conclusion that the road surface was such that dust from the road surface presented a foreseeable risk of causing visibility problems for traffic passing the grader. It was foreseeable that vehicles may travel through the graded area reasonably close together. The risk was not confined to dust from a specific vehicle passing the grader; the risk was the dust caused by traffic obscuring the area generally.
A risk assessment should have included an assessment of those areas which may impact the area where the grader was working; in this case the road conditions immediately before the graded area as well as the graded area. The Council contends that its responsibility was restricted to the dust created by its grading. That submission fails to engage with the identified risk and we reject it. What was required was an assessment of the conditions in which the grader was operating and those conditions were not restricted to the road surface being graded. For example, a strong wind blowing dust from dry paddocks across the area would be a factor the Council had to consider even though it was not responsible for causing the dust. The question is not whether the Council has responsibility for the road leading up to the grading operation; the question is what steps the Council should take to discharge its duty of care to the road user given that a slow moving and large machine, namely the grader, was working in the area and working, on occasions, towards oncoming traffic.
The Council further submits that the Judge relied upon irrelevant matters in arriving at his conclusion about liability. It is contended that the Judge considered the relative cost (low) against the risk of harm. That submission is misplaced. Section 32 of the Act required the Judge to consider “the burden of taking precautions to avoid the risk of harm”. In context, it was an appropriate assessment for the Judge to make.
Further the Council contends that the Judge, having found that there “are sound practical and policy reasons not to impose a maximum speed limit”, illogically found that the Council should have placed a sign restricting speed. Again, that submission is misplaced.
The evidence was that over the length of the entire unsealed part of the road the Council did not place any permanent speed sign, which meant that the speed limit was 100 kilometres per hour. The Judge did not necessarily accept the soundness of the reasons given by the Council’s witnesses for this policy approach. The Judge stated that “even” accepting those reasons (without deciding), the evidence established that the Council could and did, depending on the work its employees were performing, restrict the speed of vehicles. The evidence clearly established that proposition.
Section 32 of the Act required Mr Kruse to prove, on the balance of probabilities, that the risk of harm was foreseeable and the risk was “not insignificant”.
The risk to be assessed was not the risk that this particular collision would occur. The risk, as stated earlier, was that the presence of dust in and around the grader would substantially reduce visibility for road users. The chance of an event depends upon the number of ways it can occur. The risk of dust obscuring visibility was foreseeable and not insignificant and it could occur for multiple reasons.
The Judge found that the measure adopted by the Council was “inadequate”. He found that there were “a range of other signs available to the defendant Council in an endeavour to warn road users of hazards and adjust their manner of driving”. He found that there “should have been additional signs further back telling drivers to ‘slowdown’ or even giving a ‘low maximum’ speed approaching and through the grading area”.
Erecting temporary speed restriction signs and/or further warning signs were simple, practical and inexpensive procedures.
In those circumstances, it was open to the Judge to find that a speed restriction sign/further warning sign should have been placed prior to the intersection to slow traffic down and therefore reduce the dust nuisance. The Judge found that the dust from the road, prior to and including the graded area, was a substantially contributing factor to the collision. Mr Friebel stated that he placed the Grader Ahead sign approximately 50 metres south of the intersection.[22] The Judge did not specify the distance in metres from the sign that was placed close to the intersection by Mr Friebel where an additional sign should have been placed but there was no need for him to make such a finding. The forensic contest at trial was whether an additional warning/speed restriction sign should have been placed substantially earlier than the sign that was placed by Mr Friebel; it was not as to the precise distance in metres that the additional sign should have been placed before the actual sign. It was sufficient to resolve this contest in favour of Mr Kruse; the additional sign should have been placed a substantial distance before the actual sign that was placed.
[22] Other witnesses estimated between 50-150 metres south of the intersection.
The Judge found that the additional sign should significantly restrict the speed of any vehicle but did not nominate a particular speed. The evidence established that the Council had available to it signs restricting speed to 60, 40 and 25 kilometres per hour. We agree with the Judge that the speed restriction should be “significant”. Depending upon the risk assessment being conducted, either the 40 kilometres per hour sign or 25 kilometres per hour sign should have been used.
The Judge found that the failure to place an additional earlier speed restriction/warning sign before the Grader Ahead sign that was used was a breach of the appropriate standard of care. There is no error in the Judge’s reasoning or conclusion. Moreover, having reviewed the whole of the evidence, we unhesitatingly come to the same conclusion.
We reject this ground of appeal.
Ground 3: Causation
It is convenient to deal with Ground 3 before dealing with Ground 2.
The Council contends that the Judge erred in finding that the Council’s failure to place additional signs at the site was a cause of Mr Kruse’s loss. The Council further contends that the Judge’s reasons disclose no analysis of the question of causation and that he failed to make necessary findings or give reasons for his implicit conclusion.
The law of causation
The law of negligence requires determination of causation for the purpose of attributing legal responsibility. Even if a plaintiff proves that a defendant acted negligently, the claim will not succeed unless the plaintiff can prove, on the balance of probabilities, that the defendant’s act was the cause of the harm. The High Court in March v E & MH Stramare Pty Ltd[23] adopted a “common sense” approach to causation. As Deane J stated:[24]
For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility whether the identified negligent act or omission of the defendant was so connected with the plaintiff’s loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as the cause of it.
[23] (1991) 171 CLR 506.
[24] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 522.
The “but for” test was not replaced; rather the Court recognised that the “but for” test was neither a comprehensive nor an exclusive test of causation. The “common sense” approach recognised the role of value judgments in determining causation but the High Court rejected a “two-stage” approach.
Section 34 of the Act altered the test for causation by mandating a two-stage approach. It relevantly states:
34—General principles
(1)A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2)…
(3)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
Rather than the combined approach of “common sense”, it is necessary to determine causation in accordance with s 34 of the Act. The statutory test has two limbs: “factual causation” and “scope of liability”, both of which must be satisfied for causation to be established. The Act requires the two questions to be kept distinct.
The factual limb will be established when it is shown to be more probable than not that,[25] but for the defendant’s act or omission, the harm would not have occurred. The scope of liability limb, while not defined in any real sense, is a concept that incorporates normative (undefined) considerations. In Wallace v Kam,[26] the High Court considered the construction of s 5D of the Civil Liability Act 2002 (NSW) (‘the NSW Act’). Sections 5D(1) and (4) of the NSW Act are in identical terms to ss 34(1) and (3) of the South Australian Act. The Court stated:[27]
The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.
Thus, as Allsop P explained in the present case:
“[T]he task involved in s 5D(1)(a) is the elucidation of the factual connection between the negligence (the relevant breach of the relevant duty) and the occurrence of the particular harm. That task should not incorporate policy or value judgments, whether referred to as 'proximate cause' or whether dictated by a rule that the factual enquiry should be limited by the relationship between the scope of the risk and what occurred. Such considerations naturally fall within the scope of liability analysis in s 5D(1)(b), if s 5D(1)(a) is satisfied, or in s 5D(2), if it is not.”
The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a "but for" test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.
(Citations omitted)
[25] Civil Liability Act 1936 (SA) s 35.
[26] [2013] HCA 19.
[27] Wallace v Kam [2013] HCA 19 at [14]-[16] per French CJ, Crennan, Kiefel, Gageler and Keane JJ.
Thus, it is necessary to determine “factual causation” which involves the application of the “but for” test of causation. Having determined factual causation, it is then necessary to determine the normative question posed by s 34(3) of the Act. In a case falling within an established class, the normative question is properly answered by a court through the application of precedent. Section 34(1) provides guidance but does not displace common law methodology. The common law method is that a policy choice once made is maintained unless confronted and overruled. In a novel case, a court must identify and articulate an evaluative judgment by reference to "the purposes and policy of the relevant part of the law".[28]
[28] Wallace v Kam [2013] HCA 19 at [21] per French CJ, Crennan, Kiefel, Gageler and Keane JJ; Barnes v Hay (1988) 12 NSWLR 337 at 353 per Mahoney JA; quoted in Henville v Walker (2001) 206 CLR 459 at [98] per McHugh J.
There is a relationship between the scope of liability for the consequences of negligence and the content of the negligent party’s duty of care that has been breached. As the High Court stated in Wallace:[29]
…"[t]he scope of liability for negligence finds its genesis but not its exhaustive definition in the formulation of the duty of care". That is in part because the elements of duty and causation of damage in the wrong of negligence serve different functions (the former imposing a forward-looking rule of conduct; the latter imposing a backward-looking attribution of responsibility for breach of the rule) with the result that the policy considerations informing each may be different. It is in part because the policy considerations that inform the imposition of a particular duty, or a particular aspect of a duty, may operate to deny liability for particular harm that is caused by a particular breach of that duty.
(Citations omitted)
[29] Wallace v Kam [2013] HCA 19 at [26] per French CJ, Crennan, Kiefel, Gageler and Keane JJ.
As previously stated, s 34 of the Act does not displace common law methodology. The common law recognises that every event is the product of a number of conditions that have combined to produce the event. The concept of causation recognises that particular conduct may be causally connected with the sustaining of loss or damage even though other factors may (and usually will) have contributed to that loss or damage.[30]
[30] Henville v Walker (2001) 206 CLR 459 at [97] per McHugh J.
Discussion
The trial was conducted by both parties on the basis that the common law approach to causation applied and no reference was made by either party to s 34(1) of the Act. The appeal was conducted on the same basis. In particular, the Council proceeded at trial on the basis that the common law approach to causation applied. There is no appeal ground that the Judge erred in applying the common law approach or contention by the Council that the Judge erred in doing so.
In the circumstances, the Council’s complaints about the Judge’s conclusion on causation should be considered on the Council’s own premise that the common law approach to causation applied. Nevertheless, if the statutory approach is applied, it is clear that, if the “but for” test was satisfied, causation was established. It was not argued on appeal, or before the Judge, that if factual causation was established, liability should not be imposed on the Council. To put that another way, it has been long established that in these circumstances responsibility for the harm should be imposed on the negligent party.
The Council makes three contentions on appeal concerning the Judge’s conclusion on causation. First, the Judge did not make an explicit finding that the Council’s negligence was a cause of the collision. Secondly, the Judge did not make an explicit finding that the collision would not have occurred but for the Council’s negligence. Thirdly, in the absence of evidence from Mr Busch and Mr Kruse as to a hypothetical question of how they would have acted if there had been an additional speed restriction/warning sign, there was no basis to make a finding that the collision would not have occurred but for the Council’s negligence.
In relation to the Council’s first and third contentions, the Judge did not conduct a specific separate analysis of the question of causation. However, his findings establish that he did consider the question. The following findings and/or observations are important:
·The Judge acknowledged the argument of the Council that, even if there was insufficient advance warning of the presence of the grader, it was not causative of anything because of the plaintiff’s reckless manner of driving;
·A proper risk assessment would have revealed the need for more signage;
·The simple Grader Ahead sign said nothing about speed, although reducing speed would be common sense;
·Passing traffic could take many forms and travel at different speeds;
·A significant contributing factor for this collision was the amount of dust in the air;
·The evidence and common experience would suggest that the bigger and faster the vehicle, the greater the amount of dust kicked-up and dragged along by the draughting action of the vehicle; and
·The dust would have been less if the graded area was watered or the Council had put up signs significantly restricting the speed of any vehicle over the graded area.
Clearly the Judge reasoned that the dusty conditions were a significant contributing factor to the collision and that, but for the dust created by the passing semi-trailer, the collision would not have occurred. A sign restricting the speed of vehicles as they approached the grader would have reduced the dust, and the failure to restrict the speed of vehicles was causative of the dust and therefore the collision. While the language of the Judge is suggestive that he was applying the common law test of causation - the common sense and experience test - it is clear that he made a factual finding that but for the dust, the collision would not have occurred. The findings, which were not challenged on appeal, were made on the balance of probabilities.
In relation to the Council’s second and third contentions, the Judge found that the Council failed to act by not placing an earlier sign further ahead of the intersection and restricting the speed of traffic approaching the area where the grader was working. The Council contends that, in the case of an omission or a failure to take a step, questions of causation are resolved by determining what would or would not have happened had the failure not occurred.
The search for causal connection between the damage and the negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission.[31] A defendant is not causally liable for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff and/or a relevant actor to alter their course of action.[32]
[31] Chappel v Hart (1998) 195 CLR 232 at [113] per Hayne J.
[32] Rogers v Whitaker (1992) 175 CLR 479 at 490 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ; Chappel v Hart (1998) 195 CLR 232 at [32] per McHugh J (dissenting but not on this point).
The question is necessarily hypothetical. The test is subjective; the question is therefore what the relevant actor would have done, not what the reasonable person in their position would have done.[33]
[33] Chappel v Hart (1998) 195 CLR 232 at [32] per McHugh J.
Here there was no direct evidence from either Mr Busch, the semi-trailer driver, or Mr Kruse as to what they would have done had they observed an earlier warning sign or speed restriction sign before approaching the area where the grader was working.
The Council, correctly, submits that Mr Kruse bore the onus of proof on this topic.[34] The question for this Court is whether, in the absence of any direct evidence from either Mr Busch or Mr Kruse, it should be inferred, on the balance of probabilities, that either would have altered their course of action.
[34] Civil Liability Act 1936 (SA) s 35.
Mr Busch was unable to recall whether he observed the Grader Ahead sign. He of course observed the grader which had its flashing light operating and there was nothing blocking his line of sight. Mr Kruse did not see the Grader Ahead sign as the dust obscured it.
The Judge found that the semi-trailer driven by Mr Busch, travelling at approximately 80 kilometres per hour, created sufficient dust to obscure Mr Kruse’s view of both the Grader Ahead sign and the grader itself. This finding is not challenged on appeal.
The Judge found that, if the semi-trailer had been travelling more slowly, the amount of dust would have been less. The Judge clearly implicitly found that there would have been sufficiently less dust such that Mr Kruse would have avoided the collision. Thus, the speed at which the semi-trailer was travelling was, on the Judge’s findings, the cause of the dust cloud rising and therefore a substantially contributing cause of the collision. What reaction Mr Busch would have had to observing a speed restriction sign is therefore an important matter; the question is not simply confined to what Mr Kruse would have done.
What would Mr Busch and Mr Kruse have done had they observed a speed restriction sign? There is always an artificiality to such a question in a case like this. The answer to the question necessarily involves retrospective reasoning. The temptation for a witness to answer the question “would you obey a legal speed restriction sign if you observed it” with a confident “yes” should not be underestimated. The witness’s belief in the truthfulness of the answer may well be genuinely held. The danger in the answers of “interested persons” to such hypothetical questions is well recognised.[35] As McHugh J observed in Chappel v Hart,[36] “the reliability of their evidence can only be determined by reference to objective factors”. Often answers to such questions are given little weight by the trier of fact and such an answer should be weighed against all of the circumstances of the case.
[35] As Mahoney P observed in the Court of Appeal in Chappel v Hart (unreported; NSW Court of Appeal; 24 December 1996) at 7, “the ‘malleability of the recollection’ even of an upright witness”.
[36] Chappel v Hart (1998) 195 CLR 232 at [32].
Mr Busch was an experienced driver as was Mr Kruse. As their vehicles approached the intersection, neither vehicle exceeded the actual speed limit of the road, namely 100 kilometres per hour. Mr Busch was travelling at approximately 80 kilometres per hour. Mr Kruse’s vehicle was catching up to the semi-trailer prior to the dust cloud rising and obscuring his view and therefore it must have been travelling at a speed greater than 80 kilometres per hour. It was not suggested to Mr Kruse in cross-examination that his vehicle was travelling in excess of the speed limit.
On the evidence given at trial, we are satisfied that if a speed restriction sign had been in place Mr Busch, an experienced driver, would have observed the sign and slowed his vehicle accordingly. That would have had two consequences. First, it would have substantially lessened the amount of dust thrown up by his semi-trailer and secondly, it would have caused Mr Kruse to slow his vehicle down as well. In those circumstances, it is more probable than not that Mr Kruse would have observed the Grader Ahead sign and also the grader itself. Thus, the collision would have been avoided.
In addition, if there had been a second, and earlier, sign warning of the presence of the grader and/or a speed sign, it is probable that Mr Kruse would have seen it and would have slowed his vehicle before the dust obscured his view of the actual sign and the grader.
It was open to the Judge to find that, but for the negligence of the Council, the collision would not have occurred. Moreover, having reviewed the whole of the evidence, we unhesitatingly come to the same conclusion. We are satisfied that the failure to place an earlier warning/speed sign was causative of Mr Kruse’s injuries.
We dismiss Ground 3.
Ground 2
The Council contends that despite a finding by the Judge that it had breached its standard of care, the driving of Mr Kruse was such that the Judge should have found that Mr Kruse was totally responsible for his injuries.
We reject this submission. It was the Council’s wrongful conduct, as found by the Judge, that generated the risk of injury that eventuated. It can be accepted that the driving of Mr Kruse was poor. However, the duty of care is owed to all road users including the intoxicated, the inattentive, the distracted and indeed those who fail to drive defensively and to the conditions.
The Judge found that the collision was a result not only of Mr Kruse’s poor driving but also of the Council’s negligence. As such there was more than one cause for the collision. Mr Kruse’s own contributory negligence does not preclude him from recovering damages for the Council’s negligence.
We dismiss Ground 2.
Ground 4: Apportionment
The Judge found the Council and Mr Kruse equally responsible for the collision. The Council contends that the Judge ought to have attributed far greater responsibility for the collision to Mr Kruse. The Council submits that the Judge failed to give reasons for his apportionment, that is, the Judge failed to articulate how he assessed the relative importance of the acts or omissions of each party.
Contributory Negligence
Contributory negligence is governed in part by Part 7 of the Act. Contributory negligence is defined in s 3 of the Act as follows:
contributory negligence means a failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection or for the protection of his or her own interests.
It is not suggested on appeal that in negligence cases involving motor vehicles this principle is inconsistent with, or different to, the common law principle.
At common law, contributory negligence could be found if a person, such as Mr Kruse, failed to exercise the care for his own safety that a reasonable person would have exercised in the circumstances.[37] If contributory negligence is found, it is then necessary to apportion responsibility.[38] The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, that is, of the degree of departure from the standard of care of the reasonable person, and of the relative importance of the acts of the parties in causing the damage.[39] It is the whole conduct of each negligent party in relation to the circumstances of the collision which must be subjected to comparative examination.
[37] Banovic v Perkovic (1982) 30 SASR 34 at 36 per King CJ.
[38] McIntyre v Ridley District Council (1991) 56 SASR 343 at 352 per King CJ.
[39] Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16 per Dixon CJ, Webb, Fullagar and Kitto JJ; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ.
The duty of a reasonably prudent driver is to drive with a defensive outlook.[40] The duty of a driver does not require that they drive at a speed such that there is no practical risk of a collision.[41] It is not appropriate to infer a failure to meet the standard of care from the mere fact of a collision.[42]
[40] Stoeckl v Harpas (1971) 1 SASR 172 at 172-173 per Wells J.
[41] Van Den Heuvel v Tucker (2003) 85 SASR 512 at [41] per Doyle CJ and Duggan J.
[42] Brooks v Police (2013) 116 SASR 234 at [22] per White J.
In Walton v Rowbottom,[43] von Doussa J observed that community expectations for careful driving had heightened since 1971:[44]
… The cost to the community of death, bodily injury and property damage on the road, has continued to grow. In an effort to encourage greater care and to deter bad driving penalties for offences under the Road Traffic Act have been progressively increased. The community now requires not only a measure of defensive driving, but a measure of protective driving — to protect drivers, cyclists or pedestrians. Drivers must guard against all reasonably foreseeable dangers. Prominent amongst the foreseeable risks which drivers must have in mind is the one that other road users may be careless… Many provisions of the Road Traffic Act establish arbitrary standards the breach of which is punishable. They do not establish immutable "rights" to drive up to the limits prescribed regardless of prevailing circumstances…
Those remarks remain apposite.
[43] [1986] SASC 9362 (17 September 1986).
[44] Walton v Rowbottom [1986] SASC 9362 (17 September 1986) at 4-5.
The Judge analysed in some detail the relevant conduct of both the Council and Mr Kruse. The Judge found that Mr Kruse was familiar with the road and that it was in poor condition. Mr Kruse was aware that graders worked on the roads from time to time and that the road was used by heavy vehicles, particularly those involved with the wind farm. Prior to the collision, Mr Kruse was travelling between 80 and 100 kilometres per hour as he was “catching up” to the semi-trailer in front. The Judge found that Mr Kruse was driving too fast for the conditions and too close to the back of the semi-trailer. Mr Kruse gave himself little margin for error.
The Judge found that Mr Kruse drove for approximately 300 metres unsighted. The Judge observed that “he might as well have been blindfolded”. The Judge found that Mr Kruse “failed to drive defensively and drove in such a manner that he risked a collision with any number of hazards” and that he “put himself in a position that he failed to see the grader’s flashing light”.
The Council was critical of Mr Kruse continuing to drive while visibility was so poor. However, it must be remembered that Mr Kruse stated that he did not know, when the dust cloud engulfed his vehicle, whether there were any vehicles behind him. He had previously been hit from behind and was particularly sensitive to that possibility. He did not suddenly brake and come to a stop for that reason. He slowed his vehicle and moved closer to the left-hand side of the road. While he was travelling too close to the semi-trailer, it must be remembered that it was the negligent act of the Council that created the dilemma for Mr Kruse. His failure to come to a complete stop earlier must be assessed in that context.
The Judge found that the Council’s signage was “quite inadequate”. He found that no proper risk assessment was performed and that an additional earlier sign and one requiring vehicles to reduce their speed was a matter of “common sense”. The dust cloud created by the semi-trailer meant that Mr Kruse went “from seeing everything to seeing absolutely nothing”. The Judge found that the dust from the road, both prior to the graded area and including the graded area, was a “substantially contributing factor to the collision”.
The Council contends that the Judge failed to give reasons for his finding of apportionment. It is correct that other than his conclusion apportioning liability 50/50 between the parties (which is self-evidently a comparison), he gave no further reasons. However, determining apportionment is a conclusion that does not admit of lengthy exposition, and this is especially so when there is not reason to assess the responsibility of one party as greater than that of the other party.
It is evident from the findings of the Judge that he considered both parties were guilty of a serious departure from the appropriate standard of care and he concluded that they were equally blameworthy. The Judge’s reasons need to be considered in their entirety. We reject the submission that he failed to give reasons for his finding on apportionment.
It is well established that the decision of a trial judge, on a question of apportionment, will not be lightly reviewed. A finding on a question of apportionment is a finding upon a question of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds.[45] If all that is involved is a difference of opinion by a different mind, an appeal court will not interfere with an apportionment.[46] The question is whether the difference is a mere difference of opinion by a different mind or whether the appeal court concludes that the trial judge’s apportionment is outside the range reasonably open on the evidence.[47]
[45] British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201 per Lord Wright.
[46] Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ.
[47] Wardle v Fowler [2002] SASC 380 at [24] per Besanko J.
The Council relies on the decision in Grantham v State of South Australia.[48] The Judge referred extensively, in his reasons, to the facts and judgments from Grantham. As the Judge observed, the case had factual similarities but also differences. It can only be of limited assistance.
[48] (1975) 12 SASR 74.
The Judge considered that for both parties the departure from the appropriate standard of care was serious. It was open to him to form that view. Minds may differ as to the precise apportionment but, in our view, the apportionment made by the Judge was within the range reasonably available on the evidence.
We dismiss this ground of appeal.
Order
The appeal is dismissed.
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