Clare & Gilbert Valleys Council v Kruse

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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…

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Details
Case
[2019] SASCFC 106
Decision Date

CaseChat Overview and Summary

The appeal concerned a collision between a grader operated by the Clare & Gilbert Valleys Council and a vehicle driven by Mr Kruse. Mr Kruse was travelling north on an unsealed road when he was engulfed in a dust cloud kicked up by a semi-trailer ahead of him. In the reduced visibility, he collided with the Council's grader, which was travelling south on the wrong side of the road. Mr Kruse sued the Council for negligence, and the trial judge found the Council liable, apportioning responsibility at 50% to the Council and 50% to Mr Kruse for contributory negligence. The Council appealed this decision to the Full Court of the Supreme Court of South Australia.

The legal issues before the Full Court included whether the trial judge erred in finding that the Council owed a duty to place additional temporary signs at the worksite, whether Mr Kruse's own negligence was the sole cause of the collision, whether the Council's failure to place additional signs caused Mr Kruse's loss, and whether the trial judge erred in assessing Mr Kruse's contributory negligence at 50%. The Council argued that the trial judge's findings regarding the inadequacy of the signage and its causal link to the accident were erroneous.

The Full Court considered the Council's duty of care to road users, which required the exercise of reasonable care in accordance with the Civil Liability Act 1936 (SA). The trial judge had found the single "Grader Ahead" sign to be inadequate and that additional signs warning of reduced speeds would have mitigated the dust and thus the accident. The Council contended that the trial judge had not made sufficient findings on causation and that Mr Kruse's own actions were the primary cause of his loss. The Court noted that the arguments on several grounds of appeal substantially overlapped.

The Court allowed the appeal in part. It found that the trial judge had erred in failing to make distinct findings on causation and in assessing contributory negligence. The Court held that while the Council owed a duty of care, the trial judge's findings did not sufficiently establish that the absence of additional signage was a causative factor of Mr Kruse's loss. The Court also found that Mr Kruse's own negligence, particularly his speed and failure to adequately manage his approach to the dust cloud, was a significant contributing factor. The Court varied the apportionment of liability, finding Mr Kruse 75% contributorily negligent and the Council 25% liable.

Orders

Orders of the court

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Background

Background to the litigation

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; and4In 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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