Flannery v Shire of Leonora - [2001] WASCA 47

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: FLANNERY -v- SHIRE OF LEONORA [2001] WASCA 47

CORAM: MALCOLM CJ
IPP J
WALLWORK J

HEARD: 15 NOVEMBER 2000

DELIVERED : 28 FEBRUARY 2001

FILE NO/S: FUL 2 of 2000

BETWEEN: GARY JOSEPH FLANNERY
Appellant
AND
SHIRE OF LEONORA
Respondent

Catchwords:

Negligence - Respondent repairing road after floods - Respondent's workers had left mounds of gravel on road - Appellant in driving around the gravel overturned vehicle - Passenger injured - Appellant claimed contribution from respondent - Held, not sufficient warning of hazard - Appellant caused to deviate sharply through water in hole - Lost control

Legislation:

Nil

Result:

Appeal allowed
Liability apportioned one-third to appellant and two-thirds to respondent

Representation:

Counsel:

Appellant: Mr W S Martin QC & Ms B A Mangan
Respondent: Mr K J Martin QC & Mr M D Cole

Solicitors:

Appellant: Phillips Fox
Respondent: Jackson McDonald

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

Batchelor v Baswater (1937) 57 CLR 259
Betts v Whittingslowe (1945) 71 CLR 637
Buckle v Bayswater Road Board (1936) 57 CLR 259
March v Stramare (1991) 171 CLR 506
Sutherland Shire Council v Heyman (1985) 157 CLR 424

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Chappel v Hart (1998) 195 CLR 232
Devries v Australian National Railways Commission (1992-1993) 177 CLR 472
Jones v Dunkel (1959) 101 CLR 298
Jovanovic v Rossi (1985) 58 ALR 519
Kent v Scattini [1961] WAR 74
McClelland v Manchester Corporation [1912] 1 KB 118
Naxakis v West General Hospital (1999) 197 CLR 269
O'Donnell v Reichard [1975] VR 916
Warren v Coombes (1979) 142 CLR 531

MALCOLM CJ: This is an appeal against a judgment of the District Court by which the learned District Court Judge dismissed a third party claim by the appellant, the defendant in an action for damages, against the respondent Shire ("the Shire"). The facts are sufficiently stated in the reasons for judgment to be published by Wallwork J with which I agree. I only wish to add some comments of my own.
The principal action between the plaintiff and the appellant was settled on the basis that the appellant admitted liability. In the meantime, the appellant had instituted the third party proceedings against the Shire, which was responsible for the maintenance of the Agnew/Leinster road at the time of the accident.
The plaintiff was injured when a passenger in a motor vehicle being driven by the appellant along the Agnew/Leinster road when the vehicle overturned and Mr Stevens was injured.
As is apparent from the judgment of Wallwork J, while driving at speed along the road in question, the appellant had to drive to the right hand side of the road due to the presence on the road in his path of travel of three mounds of gravel which had been dumped on the roadway by servants or agents of the Shire, who had left them there and departed without putting up any signs or means of warning of the danger they constituted. In the result, the vehicle overturned and rolled a number of times.
As a result of heavy rains, a "bog hole" being approximately half a metre deep and two and a half metres in diameter, but of varying depth, had formed in the road on the south side. This was clearly a danger. The Shire arranged for the road to be repaired. Three loads of gravel dumped in three separate mounds were delivered to the site and placed on the side of the road on the eastbound carriageway adjacent to the bog hole. The plan was that a grader would be on hand at the time the gravel was delivered to grade the loads of gravel into the bog hole and repair the road. The gravel was delivered at about 4.00pm on the day of the accident and the grader was there with the grader driver, Mr Williams, ready to do the job. His offsider, a Mr Warren, who was then off duty, but with Mr Williams being authorised to do overtime, arrived on the scene. Mr Warren told Mr Williams that he was going into Leinster to buy some stores and invited him to come with him. Mr Williams then left without grading the gravel into the bog hole. He said that he did so because he was waiting for a fourth load of gravel, but there was no evidence to the effect that a fourth load of gravel was ever delivered.
No sign was left on the roadway to mark the position of the gravel which constituted an obvious danger. The accident occurred during the period of approximately one hour while Mr Williams and Mr Warren had gone into Leinster.
The critical passage in the judgment of the learned trial Judge was:
"It is clear from the evidence that the piles of gravel protrude on to the northern side of the road some 15-20 metres from the culvert and at the western end of the culvert. Witnesses varied as to how far the protrusion extended. In my view an estimate of 2‑3 metres would be the likely extent of the protrusion.
However, in my view, by itself that allegation goes nowhere causatively speaking. It is not suggested that the vehicle in which Mr Stevens travelled ever impacted with any piles of gravel. What is likely is that the Toyota Hilux vehicle appears to have left the road before sunset in conditions of good visibility on a straight stretch of road at some point after passing the piles of gravel. The causative impact in law of those piles of gravel towards Mr Stevens' ultimate injuries arising out of the roll over is left entirely at large. Absent any reliable evidence from someone in the vehicle or an eye witness who could say that the gravel was relevant to a negligent driver losing control of his vehicle, the fact of piles of gravel being at the scene goes nowhere in terms of establishing causative negligence by the Shire."
The findings in the first paragraph of that passage were not contested.
The fact that the vehicle did not impact on the piles of gravel was of no significance. This was not a case in which any reliance was placed upon hitting the gravel. The gravamen of the case was the necessity to avoid the hazard which the Shire's employees had created. The finding that the vehicle appeared to have left the road was also in error. It is clear from the evidence of Sergeant Rodger, the police officer who examined the scene, that it was established that the vehicle rolled over on the road. There is no mention in this passage of the pot hole which, as is apparent from the judgment of Wallwork J, was critical. The learned Judge also said that the cause of the impact "in law" of the piles of gravel was "left entirely at large".
In my opinion, the existence of the piles of gravel plainly caused the appellant to deviate sharply to the right in order to avoid impact with the piles of gravel. While endeavouring to return to the correct side of the road there was an impact as the vehicle went into the pot hole while attempting to swerve back to the left which, on the basis of Sergeant Rodger's evidence, leads to the conclusion that, having swerved to the right and then deviating back to the left side of the road, it came out of the water in the pot hole sideways. When it came out of the pot hole it was in gravel. What happened was described by Sergeant Rodger as "… control has been lost of the vehicle because it's all gravel; it's very loose; it's rough; and the vehicle has rolled a number of times …". The result was that two of the occupants were thrown out of the vehicle, but the third, who had his seatbelt on, remained inside. The occupants thrown out were the injured plaintiff and the appellant, who was the driver.
The relevant evidence was interpreted by the learned Judge in his judgment as follows:
"As related by Sergeant Rodger by reference to the marks on the road (see most importantly, the Mud Map of Sergeant Rodger at Exhibit 8), it is not so much even the hole or the water therein which was the problem, but rather the loss of control in the loose gravel on the other side of the hole where it was very loose and rough."
The evidence of Sergeant Rodger was that the vehicle lost control at the point of deviation which was where the vehicle went into the hole, hit the water, came out sideways and control was lost at that point. In other words, by reason of the presence on the road of the dumps of gravel the appellant was forced to deviate to the right through the water. When he attempted to return to the correct side of the road, this created a situation in which control was lost. No doubt the excessive speed with which the vehicle was travelling contributed, but the hazard created by the Shire was clearly a significant factor. In this respect, I agree with Wallwork J that the dangerous situation at the scene for vehicles travelling in the direction in which the appellant's vehicle was travelling, had been negligently created by the Shire, with the result that the piles of gravel, located where they were adjacent to the hole on the right hand side of the road as the vehicle approached, constituted a trap for an unwary driver.
The critical point is that Sergeant Rodger indicated that the vehicle came out of the water "sideways" as evidenced by the four separate tyre tracks which he identified and drew on a "mud map". As Sergeant Rodger put it in his evidence:
"… the vehicle has deviated to the right and then he has lined himself up and he has gone through the water, and when he has hit the water that's when he has run into problems.
So the indication is that coming out of the water control has been lost?---A very good chance, yes."
It was also made clear that there was no indication that the vehicle was out of control prior to encountering the hole.
There was a "Reduce Speed" sign some 300 to 400 metres from the position of the grader, which was parked "adjacent" to the piles of gravel, but off on the verge of the road. There were no other warning signs.
There was evidence that supported a finding that the appellant was negligent because he was driving too fast having regard to the conditions of the road. One of his passengers, Mr Stevens, had told him to slow down. It was accepted on behalf of the appellant that he did not take all reasonable precautions in the circumstances which he encountered. I agree, however, with the conclusion of Wallwork J that the primary cause of the accident was the negligence of the employees of the Shire in not carrying out the work as planned, but dumping the gravel close to the bog hole, where it created a situation of danger, and then departing the scene without taking any or any adequate precautions to prevent an accident of the kind which in fact occurred.
The dumping of the gravel on the road and leaving it there in the circumstances was an act of misfeasance. In Buckle v Bayswater Road Board (1936) 57 CLR 259 at 283 Dixon J made it clear that, while a road authority owed no duty to members of the public using the road to undertake active measures, whether of maintenance, repair, construction or lighting, it had no immunity for liability for civil wrong. As his Honour said at 283 - 284:
"It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorised acts when done by a road authority. But a road authority in doing them must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the

road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles. These principles include the rule that to render the highway unsafe is to commit a nuisance, and that to execute authorised works without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury. It is evident that even if what otherwise might be an obstruction or danger is created on the highway, it may be made relatively harmless by the use of some additional precaution, such as guarding or lighting. If the precaution is discontinued, consequences may ensue which up to that time had been intercepted. For these consequences the road authority will be liable in damages. But it will be liable not on the ground that it failed to exercise its power so as to prevent them, but on the ground that it was the active agent in causing an unnecessary danger upon the highway."

These latter observations apply specifically to the present case. In these circumstances, as Mason CJ said in March v Stramare (1991) 171 CLR 506 at 518 - 519:
"The purpose of imposing the common law duty on the second respondent was to protect motorists from the very risk that befell the appellant. In these circumstances, the respondent's negligence was a continuing cause of the accident."
Those remarks are entirely apposite here.
In the circumstances, I agree with Wallwork J that the apportionment of liability should be one third to the appellant and two thirds to the Shire.
IPP J: I have read the reasons of the Hon Justice Wallwork. I am in agreement with those reasons and have nothing further to add.
WALLWORK J: The question to be decided in this appeal is whether the learned District Court Judge was correct when he dismissed the appellant's third party claim against the respondent, the Shire of Leonora.

Background

On 1 May 1992, the appellant was the driver of a motor vehicle in which he was returning from his work at Agnew to Leinster. The appellant had two workmates in the vehicle, being Mr Stevens and Mr Stean. As the appellant was driving along the Agnew/Leinster road, he had to drive onto

the right‑hand side of the road due to the presence on the road in his path of travel of three mounds of gravel which had been dumped on the roadway by servants or agents of the respondent.

The gravel was to have been used to fill in a washed‑out section of the road on the other side of the road from the appellant's path of travel, being to the right of the road as the appellant proceeded along it.
From all the evidence, it appears that in an effort to avoid the mounds of gravel in his path, the appellant drove his vehicle to the wrong side of the road and through the washed‑out section of the road, which at that time contained a significant depth of rainwater. As he was leaving the washed‑out section and attempting to return to his left‑hand side of the road, the appellant lost control of the vehicle. The vehicle then overturned and rolled on a number of occasions. Both the appellant and his passenger, Mr Stevens, were thrown from the vehicle. Mr Stevens was very badly injured.
Subsequently, Mr Stevens sued the appellant in negligence for damages arising from his injuries. The appellant joined the respondent as a third party, alleging negligence on its part arising from the dumping of the gravel on the roadway in his path of travel. The essence of the appellant's claim against the respondent was that he alleged that the respondent had failed to adequately warn him of the danger on the road and had failed to take adequate steps to eliminate this danger.

Trial and Appeal

At the trial and on this appeal, it was contended for the appellant that the respondent had created a trap by leaving the gravel on the road and that the appellant, although travelling too fast in the circumstances, had been forced to drive through the washaway on the wrong side of the road, and had lost control of the vehicle which had resulted Mr Stevens' serious injuries.
At the trial (due to his injuries) the appellant was unable to give any relevant evidence as to what had happened at the time of the accident. The learned trial Judge did not accept the evidence of Mr Stevens concerning what had happened. Mr Stean was not called as a witness by either party.
His Honour was left in the position where he had to infer what had happened at the relevant time from objective evidence at the scene and from the evidence of persons who had arrived at the scene after the accident.
It should be mentioned that the appellant admitted at the trial that he was liable in negligence to Mr Stevens. The question for the Judge was whether the respondent should also be held to be liable for negligence and if so, how the liability for Mr Stevens' damages should be apportioned between the appellant and the respondent.
Amongst other things, the trial Judge found that it was clear from the evidence that the mounds of gravel had protruded on to the northern side of the road (in the appellant's path) at a place some 15 to 20 metres from the relevant washaway area. His Honour said that the witnesses had given evidence which varied as to how far the protrusion had extended, but in his view an estimate of two to three metres would be the likely extent of the protrusion. That protrusion was from the left side of the roadway as the appellant drove along it. The road was approximately seven metres in width.
His Honour said:
"However, in my view, by itself that allegation goes nowhere causatively speaking. It is not suggested that the vehicle in which Mr Stevens travelled ever impacted with any piles of gravel. What is likely is that the Toyota Hilux vehicle appears to have left the road before sunset in conditions of good visibility on a straight stretch of road at some point after passing the piles of gravel. The causative impact in law of those piles of gravel towards Mr Stevens' ultimate injuries arising out of the rollover is left entirely at large. Absent any reliable evidence from someone in the vehicle or an eyewitness who could say that the gravel was relevant to a negligent driver losing control of his vehicle, the fact of piles of gravel being left at the scene goes nowhere in terms of establishing causative negligence by the shire."
Another salient aspect of his Honour's reasons for decision was that he said that in his view the purport of Sergeant Rodger's evidence (who had arrived at the scene after the accident) was that control of the vehicle had been lost "not at or near the gravel and not in the hole with the water in it, but rather in the rough after the vehicle had emerged from the hole, having deviated after coming out of the water. Sergeant Rodger made no arrangements for the gravel to be removed from the road before he departed the scene. I can only conclude that he did not consider it a hazard … It follows in my view that Flannery's claim against the Shire should be dismissed."
In my view, his Honour did not draw the correct conclusions from Sergeant Rodger's evidence and from the other circumstances at the scene.

Sergeant Rodger's evidence

At the time of the accident, Sergeant Rodger was the officer‑in‑charge in charge of the Leinster police. He had been in that position for three years. Prior to that he had worked in traffic duties at Harvey, Mullewa, Karratha, Carnarvon and Mandurah.
On the day of this accident, Sergeant Rodger received a phone call after 5 pm. He had then attended at the scene. He found two injured persons lying on the ground to the rear of the vehicle. They had both been seriously injured. A third person, being Mr Stean, was walking about, although he also had been injured.
Sergeant Rodger said he had located "two piles of dirt on the road" which looked like road fill and were the same colour as the road itself. The fill had been taken from a quarry locally. He said that the relevant washed away area had been caused by a creek running. Soil had been washed away from the road "and there was a sizeable hole on the southern side which was the westbound way of that dirt road." The appellant had been travelling in an easterly direction on the northern side of the roadway.
Sergeant Rodger said that prior to the accident a grader had been operating from the western end of the road and working its way east towards Leinster. The piles of dirt had been dropped to the west of the washaway on the Agnew side. The closest pile was only about 15 metres from the washed away area. He said, "At that time of the night they would be difficult to see unless significantly marked because they constitute the same colour as the gravel itself. There were no markings on those piles of dirt when I attended the scene. There was a grader but the grader was adjacent to the piles of dirt. It was off on the verge."

Sergeant Rodger gave evidence that there had been a sign placed some distance back from the piles of gravel, being about 300 to 400 metres to the west of where the grader was located. That sign was a "reduce speed" sign. He said, "The standard practice there is to put a grader ahead sign and then further down to put a 'reduce speed' sign associated with the workings, so they move it as they progressively go along."
The sergeant said that there had been an indentation on the south side of the road which was full of water. "The road itself to that side had potholed to a significant depth and I'm talking about - I'd said in my statement 'about half a metre'." He said, "It's an actual graduation of half a metre, which is a fair depth … but it graduates from the distance back … " He said there was about six inches of water in the pothole itself.
Importantly, Sergeant Rodger said that the road had been graded from the west, to where the piles of dirt had been placed. He said he could observe marks on the road where the vehicle had "skidded across the road". When he was asked to describe that aspect of the matter he said, "The marks started to the west side of the piles of dirt, where the vehicle has travelled in an easterly direction. It has then deviated to the right to go around the piles, in particular the one that was in the middle. The vehicle was then on the incorrect side of the road and it has then deviated back to the correct - deviated back to the left side, and at the point of deviation he has gone through the water and then it has come out on the other side of the water and it has come out sideways, and from there the vehicle - control has been lost of the vehicle because it's all gravel; and it's very loose; and it's rough, and the vehicle has rolled a number of times, and it has thrown two occupants out and the third who had his seatbelt on, was the only one inside" (my emphasis.)
In cross‑examination, Sergeant Rodger said that from the marks on the road, the vehicle had come across the mounds of dirt in the road and had deviated to the right. He said he could actually see a wheel mark of the variation "and the lightness of the wheel mark defines - in a way defines its speed as well, which is a reasonable rate of travel, and it's gone across to the right‑hand side, gone through the water - or I should say it's hit the water and from there on it's come out, and it's come out the other side, and it's slid sideways to the left … ".
The sergeant expanded on that evidence a little later in the cross‑examination when he said, "There are distinctive lines of travel of the vehicle. It has come down. It had deviated to its right. It has gone through the water and then it has deviated again to its left, and that's where the control has been lost, at this point here … because the marks on the road distinctly show a vehicle in a slide and you've got a situation where you've got four sets of tyres and instead of going in a direct line with each other, they are going sideways like that … in other words all four tyres are leaving a distinctive mark on the road … instead of four wheels travelling in a line and leaving just two lines, we have got four wheels leaving four lines, because the vehicle has gone sideways."
Sergeant Rodger was asked whether that had happened after the hole and his answer was, "Yes. There are marks - yes, there are very distinctive marks as far as that side is concerned. All we have got here is the line of travel of the vehicle as it has come down and deviated across to the right."
It was put to the sergeant that there had been no indication that the vehicle had been out of control prior to encountering the hole. His answer was, "No, there's none of that at all, because the vehicle has deviated to the right and then he has lined himself up and he's gone through the water, and when he has hit the water that's when he has run into problems." He was then asked, "So the indication is that coming out of the water control has been lost?" His answer was, "A very good chance, yes".
The learned Judge then asked the sergeant about the line of travel of the vehicle and the sergeant said, "The vehicle has gone through the water and it has come sideways here and from there it has just started to roll and it has flipped. I'm not sure how many times … "
Prior to the accident, another witness, Mr Hooks had driven through the relevant area. He said that as he had approached the creek crossing he had noticed the piles of dirt on the left‑hand side of the road. He said, "I thought that looked pretty dangerous in my book and I had to pretty well brake at that point … I thought there should be more warning in front of the dirt. I saw the piles of dirt there, protruding on to the side of the road. I don't remember exactly how far they stuck out in the road, but they were out in the road. I had to move out from my position I was on, to get around them and brake, because you went straight on, straight into the rough part after the dirt, after those piles of dirt."
Mr Hooks was asked what he had seen as he had approached the piles of dirt. He said, "I can't remember exactly what it was there. It was either a witch's hat or some sort of sign at - right on the dirt, I think. Well, you're not going to really see that until you get there." He was asked whether he had seen anything before that and he said, "No."
Mr Hooks said that he had been travelling at about 80 to 90 kilometres an hour as he had approached the piles of gravel. "It was a bit faster than normal because I felt confident on that section." He said, "I knew the gravel surface had been resurfaced like the prior sections had been done and it had been watered and rolled so there was no dust or rocks and it was solid." Mr Hooks said he had decelerated rapidly and had moved right over to avoid the obstacle.
It is apparent from a photograph which as taken a day or two after the accident that as the appellant approached the scene of the accident, the road was in excellent condition and had been recently graded.
At this appeal, the respondent relied heavily on the contents of a map which had been drawn by Sergeant Rodger whilst he was in the witness box and which showed the path of the appellant's vehicle. The map appears at 478 of the papers. It reveals that the appellant had driven to the right to avoid the mounds of gravel. He had then driven straight through the hole where the water was and on leaving the water had veered at a sharper angle to the left than he had veered to the right before entering the water. The vehicle had then rolled over.
At the hearing of the appeal, the learned Chief Justice made the comment that he could not see that the map did anything other than indicate in general terms the direction in which the vehicle had travelled at the time of the accident and that it would be very difficult to draw detailed inferences from it. It had to be looked at in the light of the detailed evidence which Sergeant Rodger had given in cross‑examination. I agree with that observation.
A matter which is relevant to responsibility for the accident in this case is that the gravel was placed on the road so near to the water in the hole that it made it possible that a driver could enter the water and lose control of his vehicle. A driver such as Mr Hooks, who was able to brake and drive slowly around the obstruction of the gravel mounds, was in a different position from a driver who was travelling faster, as was the appellant.
Counsel for the respondent suggested that the appellant should have continued to drive in a straight line after he had come out of the water. However, in my view, that proposition overlooks Sergeant Rodger's evidence that " … he has lined himself up and he has gone through the water, and when he has hit the water, that's when he has run into problems".
The gravel had been delivered at a time in the afternoon when the grader driver was present. He could have promptly pushed the mounds of gravel into the area which had been damaged and which contained the water. That would have removed the gravel from the path of travel of the appellant's vehicle and at the same time eliminated the danger of the water‑filled hole on the right‑hand side of the road as the appellant approached. Instead of doing that, the grader driver went into town to obtain some provisions. He left the gravel unattended on the roadway.
The loose and rough gravel on the road to the east of the pothole added to the danger in that, having slid into that area, the vehicle overturned. Sergeant Rodger said, "I should say it's hit the water and then from there on it's come out and it's come out on the other side and it slide sideways to the left …. " As stated above, it was put to the sergeant in cross‑examination, "So the indication is, that coming out of the water control has been lost?" His answer was, "A very good chance, yes."
In my view, it is a fair inference that it was the water or the hole or both, coupled with the fact that the driver was intending to cross back to the left‑hand side of the road, which caused the vehicle to veer out of control sharply to the left, leaving four tracks coming out from the water. That is consistent with the sergeant's remarks, "It's come out the other side and it slid sideways to the left …. " It was the original act of deviating to the wrong side of the road to avoid the gravel heaps which contributed to the loss of control due to the vehicle having entered the water.
It was accepted by counsel for the respondent that, with the two to three metres of the appellant's side of the road covered in gravel, the appellant had to deviate. In my view, it was that deviation which caused him to enter the water‑filled hole and to lose control of the vehicle. The hole constituted a trap to an unwary driver and the situation had been negligently created by the respondent.
It was common ground that the respondent was a highway authority in relation to the Agnew/Leinster road and would be responsible for any acts of misfeasance in terms of it creating a risk on the highway - Batchelor v Baswater (1937) 57 CLR 259.
In March v Stramare (1991) 171 CLR 506 at 518 ‑ 519 Mason CJ said:
"The second respondent's wrongful act (in parking the truck in the middle of the road) created a situation of danger, the risk being that a careless driver would act in the way that the appellant acted. The purpose of imposing the common law duty on the second respondent was to protect motorists from the very risk that befell the appellant. In these circumstances, the respondent's negligence was a continuing cause of the accident."
In Betts v Whittingslowe (1945) 71 CLR 637 at 649 Dixon J had earlier said:
" … the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of … duty."
In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467 Mason J said:
"When there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm."
In this case it is a fair inference that the appellant had been driving along a stretch of well‑graded road and had relatively suddenly come upon the piles of gravel which caused him to deviate to the right into the hole containing the water. That hole was half a metre deep and constituted a trap. It is no defence for the respondent that the appellant was travelling too fast, because that goes to the apportionment of negligence between them in all the circumstances of this case.
The danger of the situation could have been averted by the grader driver, or some other employee or agent of the respondent, filling the hole or removing the mounds of gravel from the road before the appellant arrived on the scene. Alternatively, adequate warning procedures could have been put in place by the respondent. The fact of the "reduce speed" sign 200 to 300 metres before the gravel does not remove the negligence of the respondent. That again goes to the contributory negligence of the driver.
Mr Heather, one of the truck drivers who delivered a load of gravel, gave evidence that when he had arrived at the area he had asked the grader driver present to advise him whether he should start to dump the gravel. There was no reason why work should not have been then promptly commenced to dispose of the gravel in the path of the appellant. The gravel was dumped between 3.30 and 4 pm.
Mr Mirams, the Shire foreman for the respondent, agreed that it was his expectation that the piles of gravel would be delivered and graded that afternoon. He was asked, "It was never in your contemplation, was it, that the piles of gravel would be put there and left, the grader drivers would go away, and come back at some other time to spread them later … " He answered, "No. Our policy is not to leave gravel on the road overnight." He agreed that his policy would be not to leave it on the road at all, if it could possibly be avoided. He thought the job would have taken half an hour. He said that he had expected the gravel to be delivered at 4 o'clock and the grader driver to then grade the gravel straight afterwards.
It is significant that the damaged part of the road was not a small area, but was up to two and a half metres in diameter and up to half a metre deep, being of varying depth. The gravel was delivered at about 4 pm on 1 May and the grader was there at the time. The learned Judge found that the grader had been placed off the road and was not on the roadway.
It is a fair conclusion that the chain of causation of the accident was that there was the deviation to the right, the car hitting the water going into the hole, a swerve to the left, with the speed of the vehicle causing the vehicle to roll when it hit the rough gravel on the other side, due to the sideways motion of the vehicle.
For the above reasons, I would allow the appeal and hold that the respondent is liable in negligence.
With respect to the apportionment of responsibility between the appellant and the respondent, it was accepted for the appellant at the appeal that the appellant did not take all the required precautions in the circumstances which he encountered. However, in my view, the primary cause of the accident was the negligence of the Shire in dumping the gravel close to the water‑filled hole and then not taking adequate precautions to avoid an accident.
In my opinion, in all the circumstances, a two‑third/one‑third apportionment in favour of the appellant would be a fair apportionment of the responsibility.