Egan v Adelaide City Council & Anor No. Scciv-02-1506

EGAN v ADELAIDE CITY COUNCIL & ANOR
[2002] SASC 411
Magistrates Appeal: Civil (ex tempore)

DOYLE CJ: The appellant appeals against the dismissal by the Magistrates Court of his claim against the respondents for damages for property injury. The claim is in negligence.
The appellant was injured while riding his motorcycle when he collided with an oncoming motorcar. His claim is for damage to the motorcycle. He claimed he lost control of his motorcycle when his front wheel ran over a manhole cover in the road.
He brought an action against the Adelaide City Council (“the Council”) and the South Australian Water Corporation (“SA Water”) on the basis that the manhole cover presented a hazard and a breach of a duty of care owed by the Council and SA Water.
The accident
The accident occurred on 25 March 2000, on King William Road near the Women’s and Children’s Hospital, about 140 m north of the intersection of King William Road and Kermode Street. The appellant was travelling uphill in a northerly direction towards North Adelaide and turning to his left or to the north-west following the bend in the road. At some point on the bend the appellant lost control of his motorcycle. He veered right towards the median strip in the centre of the road, hit the median strip and collided with a motorcar travelling in the opposite direction.
The appellant’s evidence was that he moved from the left lane into the right lane to make way for an impatient driver who was travelling in the same direction behind him. He ran over a manhole cover which he said was about 10 mm to 15 mm below the surrounding road surface. He said he was travelling at about 60 km/h to 65 km/h when he went over the manhole cover. The driver of the motorcar with which the appellant collided, and the passenger who was in that car, both gave evidence that the appellant was speeding as he travelled around the corner. Their impression was that the appellant lost control of his motorcycle because he was riding too fast. Neither witness saw any other vehicle in the vicinity or following the appellant at the time. A witness who saw the accident from where he was standing on the footpath did not agree that the appellant was riding too fast.
Expert evidence
Two mechanical engineers, Mr Aust and Mr Hall, provided reports. Mr Aust examined two manhole covers on the relevant section of road. The covers were both about half a metre in diameter and the distance between the centres of the covers was about 5.2 m. The lowest point of one cover, Cover A, was about 25 mm below the bitumen surface north and south of the cover. The lowest point was at the centre of the cover. The maximum depth of the second cover, Cover B, was about 12 mm below the bitumen surface of the road. Photographs of the covers show that they are made up of concentric sections, or “lids” in the words of Mr Campbell, the witness from SA Water. The inner lid sits within the outer lid or frame and sits some millimetres lower in relation to the road surface than the outer lid or frame.
Mr Aust’s opinion in summary was that “it is unlikely that a motorcyclist would experience difficulty in negotiating the curve if travelling at 60 kph”. I take that to mean that a motorcyclist would not be destabilised by riding over one of the manhole covers on that section of the road at that speed. Mr Aust’s opinion was that a motorcyclist would have to be travelling at 75 km/h or more to experience such difficulty. Mr Hall in his report agreed with Mr Aust’s conclusions. He gave reasons why manhole covers can present hazard to a motorcyclist.
While there is some information in the reports about the particular manhole covers on the relevant section of road, no evidence was led about established or recognised standards that might apply to manhole covers in general or about whether the particular covers in the case departed in any way from any applicable standards. I refer here to standards recognised by road-making authorities and by authorities responsible for the placing of manhole covers in roadways.
The Magistrate’s reasons
The Magistrate concentrated on what may have caused the accident. It appears the parties presented their cases with the same focus. Although it is not entirely clear from his reasons, and in this respect the Magistrate’s reasons are not as clear as they should be, the Magistrate appears to have decided that it was likely that the appellant was travelling at an excessive speed and that this was the cause of the accident. The Magistrate also appeared to accept the evidence from a witness from each of the Council and SA Water, that there were no recorded complaints about or accidents involving the manhole covers and that in their opinion there was nothing unsafe about the position of the covers in relation to the road surface.
The Magistrate found that the Council and SA Water owed a duty of care to the appellant. He expressed the duty as a duty to take reasonable care and reasonable measures to ensure the area was safe. He was not satisfied that there had been any breach of the duty. He was not satisfied that any condition of the manhole covers contributed to the appellant’s loss of control.
As I have indicated there was no evidence about and no consideration given to the issue of whether the manhole covers departed from any applicable standards. As I see it that is an important aspect of the case.
Was there a breach of duty?
I will assume for the moment that the appellant lost control of his motorcycle as a result of his front tyre running over one of the manhole covers. I will also assume that the Council as the statutory authority responsible for the surface of the road (as to which see ss 208 and 212 of the Local Government Act 1999 (SA)), and SA Water as the statutory authority responsible for the manhole cover (as to which see s 23 of the Waterworks Act 1932 (SA)), each owed a duty to the appellant to take reasonable care to ensure that the cover and adjacent road surface were reasonably safe for the passage of motorcyclists on that section of the road. In making that assumption I include the assumption that those authorities would have to allow for the possibility of motorcyclists exceeding the speed limit.
If one makes those assumptions the question is whether the appellant has proved a breach of duty. In that context the issue of whether the manhole covers departed from any applicable standard assumes importance. Manhole covers are commonly found on roads, are not out of the ordinary and are not themselves hazardous, generally speaking. I would have expected that there were well established standards or at least practices recognised by road-making authorities relating to the installation and condition of manhole covers, including standards or practices as to their relationship with the surrounding road surface, embracing matters such as shape, depth, the angle of bitumen edges around the cover and the like. I would have expected that evidence could have been led to show whether or not the covers in this case met applicable standards. No such evidence was led on either side.
In the cross-examination of Mr Aust, a mechanical engineer called by SA Water, there is a passing reference to an Australian Standard of possible relevance. However, only one or two questions were put with reference to it. There is no way of telling whether it threw any light on the issue before the Court.
I would have expected at least that a person experienced in the maintenance of manhole covers or in the making or maintenance of roads on which manhole covers are used could give evidence about established or recognised practices at the operational level relating to such covers and their relationship to the surrounding road surface. No such evidence was led on either side, although it might have been implicit in some evidence given by Mr Marshall and Mr Campbell, to which I will come in a moment.
Bearing in mind that it is for the plaintiff to prove his case, the fact that the covers were not shown to depart from any recognised standard or practice as to type, position relative to the road surface and like matters is a significant obstacle to a finding of breach of duty. Absent such evidence it is difficult to see how one could reach a conclusion that the Council or SA Water breached the duty of care that they owed. Even assuming that one of the covers contributed in some way to the appellant’s accident, be that because of a lack of grip on the cover or because of some other factor in combination with the speed or angle at which the appellant ran over the cover, absent any evidence of a failure to comply with applicable standards in relation to the covers it is difficult to identify a basis for a finding that a relevant duty has been breached.
One cannot simply reason from the fact of the collision to the conclusion that there has been a breach. The fact of the appellant losing control does not of itself point to a conclusion that the state or position of the covers is indicative of a breach of duty.
The only evidence before the Magistrate by way of evaluation of the covers in terms of what is usual or expected is that of two witnesses from the Council and SA Water, Mr Marshall and Mr Campbell respectively. Their evidence indicates that there was nothing about the covers that failed to accord with applicable standards, while not addressing that point directly.
Mr Marshall is a maintenance crew coordinator with the Council. He inspected the covers some time after the accident. The evidence is that the road surface had not changed between the accident and his inspection. His assessment of the covers was that they were adequate, that the road surface was adequate and that no remedial action was required in relation to the covers.
He had not received any complaints about the section of the road. He did not on inspection identify any covers on the section of road that were lower than the road surface. Accepting Mr Aust’s measurements that the centre of the covers was lower than the road surface, Mr Marshall’s evidence may indicate that the outer edges of the covers were level with the road surface.
Mr Marshall was shown photographs of the covers and he accepted that one of them at least was not flush or level with the road surface. However, he did not consider that the cover should be raised, even accepting that the centre of the cover was depressed 25 mm below the road surface. He did not consider that a cover depressed to that degree constituted a hazard.
Mr Campbell is an operations officer with SA Water. He also inspected the covers some time after the accident. His evidence was that the outer frames of the covers were level with the bitumen surface and that there was no need to adjust them or to repair them. The height difference between the centre of the covers and the outer frames was not a hazard in his opinion.
Mr Campbell accepted that one of the covers was worn but he did not consider that either of them posed any risks or danger. SA Water had received no reports about the covers.
This is significant evidence from two men with substantial experience in assessing the condition and safety of manhole covers. In their opinion the covers were not a hazard and did not require attention. Those opinions are based on their experience. They were not shaken in cross-examination. The Magistrate accepted this evidence.
The Magistrate also accepted the evidence that the systems that the Council and SA Water had for observing and reporting problems with manhole covers and recording reports of problems with manhole covers were adequate. On the material before the Magistrate that conclusion was well open to him.
The evidence about speed
The evidence at trial and the Magistrate’s reasons deal mainly with the question of the appellant’s speed. As I have said, in my view the starting point is a consideration of whether the state and position of the covers is indicative of a breach of duty. There is no evidence that they are indicative of a breach of duty and there is significant evidence to the contrary.
That being so, how can the evidence about the appellant’s speed make out his case? The appellant’s approach is that his speed was normal or permissible and if he lost control when passing over one of the covers that must be because the cover was in a dangerous position or condition.
That, with respect, is not a strong argument. He might have lost control due to momentary inattention or due to some other factor not identified. He might have been travelling much too fast. The appellant actually said in evidence that as he hit the cover his front tyre “popped”, apparently meaning that it deflated. The possibility of a defect in the tyre was not really explored at trial and was certainly not excluded. So for a number of reasons the happening of the accident is not of itself indicative of a breach of duty in relation to the covers.
The appellant’s case rests heavily on a proposition from Mr Aust’s report where he said, “In my opinion, based on limited experimental testing, it is possible that Cover A could cause loss of directional control at a cornering speed of about 75 kph, but it is likely that a somewhat higher speed would be required.”
This opinion appears to be tentative and rather general, in that a number of factors, such as the angle of lean or tilt of the motorcycle and other matters relevant to the precise movements of the motorcycle at the time, are not dealt with.
In my view that opinion is not a sufficient basis to say that the Magistrate should have found that the manhole covers were a hazard and were indicative of a breach of duty. It is nothing more than a general statement that at that speed there could be a loss of directional control. To infer from that general statement, and the occurrence of the accident, that in fact the manhole covers were defective in the sense of being in breach of the duty of care that was owed, involves a number of leaps.
It is significant in that context, as I mentioned a moment ago, that the appellant in his evidence denied that he lost traction. He seemed to say in evidence that the problem was the height differential between the roadway and the manhole covers, and the jolt that he received. In fact he went so far as to deny that the problem was when he went down on to the manhole cover and to assert that the problem was when, a fraction of a second later presumably, he encountered the bitumen edge on the far side of the manhole cover.
It may be that Mr Hall’s evidence about the gravitational affects of dropping down onto the manhole cover in some way explained that. In the light of that further evidence, a thesis based on Mr Aust’s observations seems to me to have an inadequate foundation.
The appellant faces other difficulties. The Magistrate was not prepared to find that the condition of the cover contributed to the loss of control. There were other possibilities, for example, a tyre blow-out or low tyre pressure and the Magistrate was not prepared to exclude them. Although the lack of specific findings in this area does cause some problems, the fact is that the Magistrate was not prepared to exclude these matters which might equally explain the accident.
So in short, the appellant’s case seemed to be that on a bend of this kind the fact that loss of directional control could occur at a cornering speed of about 75 km/h was, in conjunction with his claim that he was travelling at about 60 km/h, itself proof that either or both of the Council and SA Water were in breach of their duty. For a number of reasons it seems to me that reasoning along those lines requires a number of leaps, and confronts obstacles in the Magistrate’s findings and lack of findings.
It is also relevant that, as I read the Magistrate’s reasons, he was not prepared to accept the appellant’s evidence about his speed and about how he handled his motorcycle. The Magistrate’s reasons are unclear in that respect, but that may not matter because of his conclusion on the other issues. However, my impression is that the Magistrate was not prepared to assess the situation on the basis that the accident occurred as described by the appellant.
The Magistrate failed to make clear his findings, if he made them, as to just what did happen, but if he made a decision not to accept the appellant’s evidence that certainly puts the appellant’s case in difficulty.
The basis of the Magistrate’s ultimate decision was a finding that the cover was not a hazard and did not contribute to the accident. The first finding is in effect a conclusion that the state and position of the cover was not indicative of a breach of duty. It relied on his acceptance of the evidence of Mr Marshall and Mr Campbell. The second finding appears to be a conclusion that the Magistrate was not satisfied that loss of traction while crossing the cover at a speed that should be expected, even if in excess of the legal limit, was the effective cause of the accident.
That eliminated the appellant’s main argument, if that is what the Magistrate meant, but in any event the first finding is decisive.
Conclusions
Even accepting the expert evidence about the potential hazard that could be posed to a motorcyclist by a manhole cover, there is no evidence that the particular covers in this case presented a hazard of a kind not reasonably to be expected and that should not reasonably be permitted by a competent road-making authority or manhole cover installing authority. The evidence indicates the contrary.
It may be that the Magistrate found that if one of the covers contributed at all to the accident that was because of the speed or angle at which the appellant ran over the cover, but he was clearly not satisfied that any condition of the cover in the sense of defect contributed to the accident. While the Magistrate appears to have focused on the cause of the accident rather than on the issue that I have identified as the main issue, there was no evidence on which the Magistrate could have been satisfied that there had been a breach of the duty of care on what I regard as the most important basis.
I agree with the Magistrate’s ultimate conclusion that the appellant has not proved that there has been a breach of duty and accordingly the appeal must be dismissed. The orders of the Court are as follows:
(1)that the appeal be dismissed;
(2)that the appellant pay the respondents’ costs of the appeal.

[2002] SASC 411

3 December 2002