Copmanhurst Shire Council v Watt - [2005] NSWCA 245

NEW SOUTH WALES COURT OF APPEAL

CITATION: Copmanhurst Shire Council v Watt [2005] NSWCA 245

FILE NUMBER(S):
40107/05

HEARING DATE(S): 12 July 2005

JUDGMENT DATE: 26/07/2005

PARTIES:
Copmanhurst Shire Council - Appellant
Jon Watt - Respondent

JUDGMENT OF: Giles JA Tobias JA Brownie AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20186/01

LOWER COURT JUDICIAL OFFICER: Studdert J

COUNSEL:
M T McCulloch SC & N E Chen - Appellant
B Toomey QC & S Mayburn - Respondent

SOLICITORS:
Phillips Fox - Appellant
MBP Legal - Respondent

CATCHWORDS:
Plaintiff's car skidded on road - hit embankment and overturned - council road works - whether loose gravel on bitumen surface - varied evidence from plaintiff's witnesses to support yes - defendant's witness said no - evidence that had previously said he could not remember - whether admissible as prior inconsistent statement - admissible - evidence of plaintiff's witnesses not put to defendant's witness - was put to defendant's witness that he had no real recollection - whether failure to comply with rule in Browne v Dunn - no failure - whether judge's finding of loose gravel on road appealably in error - not in error - whether causation of loss of control established - causation established - whether erred in apportionment for contributory negligence - no error. D

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40107/05
SC 20186/01
GILES JA
TOBIAS JA
BROWNIE AJA
Tuesday 26 July 2005

COPMANHURST SHIRE COUNCIL v WATT

Judgment

GILES JA: The respondent was severely injured when his car skidded, hit an embankment at the side of the road and rolled over. Damages were agreed at $6,500,000, subject to reduction for contributory negligence. The appellant was carrying out roadworks. Studdert J held that the respondent skidded in loose gravel on the bitumen roadway, that the appellant was in breach of its duty of care in failing to clear the loose gravel off the roadway and to warn of its presence, and that the appellant’s negligence was causative of the accident. He reduced the respondent’s damages by one-third for contributory negligence.
For the reasons which follow, in my opinion, the appeal from his Honour’s decision should be dismissed.
The accident
The respondent was just short of his twentieth birthday at the time of the accident. He held a provisional drivers licence. He had owned and driven for some six months a 1981 Holden Gemini sedan. The car was in good working order.
As part of a journey which began on 23 March 1998, on 24 March 1998 the respondent was driving on the Summerland Way from Casino to Grafton. The Summerland Way runs approximately north-south. At the time the roadway had a bitumen surface with gravel shoulders, but in the area of the accident roadworks were being carried out.
The respondent, travelling south and approaching a gradual right hand bend on a moderate downhill grade, was about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 245
Decision Date: 26 July 2005

CaseChat Overview and Summary

In Copmanhurst Shire Council v Watt, the Court of Appeal considered an appeal by the Council against a judgment in favour of the respondent, Mr Watt, who had suffered loss of control of his vehicle which skidded on a road and overturned. The dispute centred on the condition of the road surface at the time of the accident, with Mr Watt alleging the presence of loose gravel on the bitumen, which he contended caused his loss of control. The Council, responsible for road works in the area, denied this allegation.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in finding that loose gravel was present on the road surface, whether the evidence supported a finding of causation between the road condition and the accident, and whether the judge had made any appealable error in relation to the rule in *Browne v Dunn* or in apportioning contributory negligence. The Court also had to consider the admissibility of evidence, specifically a prior inconsistent statement made by a witness for the Council.

The Court of Appeal found no error in the trial judge's findings. It accepted that the evidence of Mr Watt's witnesses, despite some inconsistencies and inaccuracies regarding the extent of roadworks, collectively supported the conclusion that loose gravel was present on the bitumen surface. The judge's assessment of the credibility of these witnesses, particularly Mr Wesslink, was deemed to be within his purview. The Court also held that the evidence of the plaintiff's witnesses regarding the road condition had been sufficiently put to the defendant's witnesses, or that the failure to do so did not amount to a breach of the rule in *Browne v Dunn* given the context. Causation was established, and the apportionment of contributory negligence was not found to be erroneous.

The appeal was dismissed, and the Copmanhurst Shire Council was ordered to pay Mr Watt's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I will return to the evidence of Constable Carroll, and to the sub-issues earlier mentioned, after describing the evidence of the other witnesses as to the state of the roadway. The respondent called Mr Cameron, Ms Mitchell, Mr Wesslink, Mr Watt and Mr Ingram, in that order. The appellant then called Mr Perriott and Constable Carroll, in that order.(a) The evidence of the other witnesses Mr Cameron lived on the property at the corner of Summerland Way and Gurranang Road. He heard the sound of the accident, and went to the scene. He said he noticed the condition of the road surface, and that the roadway was gravel where the car came to rest and for about 200 metres to the north. But he also said that shoulder widening had taken place and the old bitumen had been torn up and replaced with new bitumen, indeed that at the time tar and gravel was being laid to the north of where the accident occurred. Mr Cameron was incorrect in his recollection of the extent to which the roadworks had progressed. The judge said that he was not assisted by Mr Cameron’s evidence in determining the state of the roadway at the northern end of the skid marks. Ms Mitchell, Mr Cameron’s partner, also attended the scene of the accident. She described the roadway as “like dirt and they put road base on the top of that and then like loose gravel, gravelly stuff which was mixed in the road base I suppose” across the whole of its width. She was uncertain whether the bitumen had been torn up, but thought the material looked as if it had been placed prior to something else happening to it; she also said that the old bitumen surface was not there on the day of the accident. Ms Mitchell said that she walked 150 metres to the north from where the respondent’s car came to rest, and saw skid marks starting on the correct side of the road for a south-bound vehicle and crossing to the western shoulder, along the shoulder for 100 to 130 metres, and then back across the roadway to the embankment. She said that a covering of “gravelly stuff” extended to the north at least as far as to the point where the skid marks began. The judge thought that Ms Mitchell was wrong in her perception that the dirt, road base and gravel had been deliberately deposited prior to further work, but took her to be describing a surface comprising a mixture of dirt, road base and gravel. Mr Wesslink was an ambulance officer who attended the accident. He said that where he parked the ambulance half off the roadway close to the respondent’s car there was gravel, which extended right across to the western side of the road. It appeared to him that the old bitumen surface had been ripped up. He came from Grafton, and said that the bitumen colour of the roadway seemed to have ended 100 metres south of the bend at the Gurranang Road turnoff. (This was not further identified; from one of the plans, it would have been well towards but not necessarily as far south as the southern end of the 30 kilometre job.) He travelled further north from where the car came to rest only 30 to 40 metres, to turn the ambulance, and could not say what the surface of the roadway was like further to the north. The judge said that Mr Wesslink was wrong in thinking that the road was ready for bitumen to be laid, but that he was particularly impressed by Mr Wesslink’s evidence, and that it was “in the context of his general impression about the appearance of the road surface” and was reliable evidence of the condition of the road surface in the immediate vicinity of the respondent’s car.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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