Griggs v Beaudesert Shire Council

[2002] QCA 328

SUPREME COURT OF QUEENSLAND

CITATION:

Griggs v Beaudesert Shire Council & Ors [2002] QCA 328

PARTIES:

NORMAN WAYNE GRIGGS
(plaintiff/appellant)

v

BEAUDESERT SHIRE COUNCIL
(first defendant/respondent)

ALLEN DESMOND LOPEZ
(second defendant)

NRMA INSURANCE LIMITED ACN 000 016 722
(third defendant)

FILE NO/S:

Appeal No 5329 of 2001
DC No 581 of 1999

DIVISION:

District Court at Brisbane

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2002

JUDGES:

Davies and Williams JJA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – SUFFICIENCY OF EVIDENCE - appeal against finding of learned trial judge that the respondent had not been negligent – whether the learned trial judge’s finding was against the evidence or weight of evidence

Brodie v Singleton Shire Council (2001) 75 ALJR 992, considered
Buckle v Bayswater Road Board (1936) 57 CLR 259, considered

COUNSEL:

The appellant appeared on his own behalf
R J Lynch for the respondent

SOLICITORS:

The appellant appeared on his own behalf
King and Company for the respondent

1. DAVIES JA:  I agree with the reasons for judgment of Williams JA and with the orders he proposes.

1. WILLLIAMS JA:  The appellant sustained personal injuries on 15 June 1997 when the motorcycle he was riding came into collision with a motor vehicle.  The immediate cause of the collision was the fact that the appellant lost control of the motorcycle because it lost traction on loose gravel present on the road surface.  The incident occurred in the vicinity of the intersection of Kidston Street and Lamington National Park Road in Canungra.  The respondent, Beaudesert Shire Council, was the local authority responsible for those roads.

1. The appellant commenced proceedings claiming damages against both the driver of the other motor vehicle and the respondent.  After a trial the learned judge held:

(i)         there was no negligence on the part of the driver of the other motor vehicle;

(ii)       there was no negligence on the part of the respondent;

(iii)      if the finding of no negligence against the respondent was incorrect, the appellant was contributory negligent to the extent of 30 per cent;

(iv)       damages should be assessed in the total sum of $195,616.18.

1. The appellant has appealed only against the finding that the respondent was not negligent.  There was no appeal against the finding of contributory negligence or the assessment of damages.  If the appeal was allowed there would be judgment for the appellant against the respondent for $136,931.33.

1. At trial the appellant was represented by experienced counsel and all relevant issues were canvassed at some length.  The appellant’s written outline of argument on appeal was prepared by lawyers acting on his behalf, but he appeared in person at the hearing of the appeal.  Principally he relied on what was contained in the written outline of argument.  He did take the court to a number of photographs which were exhibits, and drew the court’s attention to features depicted therein.

1. The learned trial judge made detailed findings of fact after closely analysing the evidence.  The following is a summary of the facts as so found.

1. The incident happened at about 3pm on Sunday, 15 June 1997.  At the time the respondent was carrying out a street reconstruction project in Christie Street which was the main street of Canungra.  The intersection of Christie Street and Kidston Street was some 199 metres from where the incident occurred.  The reconstruction project in Christie Street meant that there were some minor roadworks extending into Kidston Street for approximately five to 10 metres.

1. At the time the incident occurred the weather was fine but the road was wet.  There had been some rain in Canungra earlier that day.

1. There was excessive gravel on the bitumen surface of the road at the accident scene which made the road hazardous for motorcyclists.  The hazard was increased by the fact that the gravel was on a sharp curve in the road. 

1. Because of the roadworks the regulated speed at the accident scene was 40 kph, but there was in place an advisory speed sign of 30 kph.

1. The appellant that day had been travelling with a group involving some six to eight motorcycles and a motor vehicle.  The group had lunch at a hotel near the accident scene.  As the group left the appellant was travelling at the rear and behind the motor vehicle.  As the motor vehicle proceeded around the sharp left hand turn the driver braked but not severely; that caused the appellant to touch the brakes of his motorcycle.  He then lost control of the motorcycle as it skidded in the gravel on the road.  He was travelling at between 30 kph and 40 kph at the time he applied the brakes.  He was then a little over one car length behind the motor vehicle.  When he lost control of the motorcycle it crossed onto the incorrect side of the roadway and collided with an oncoming vehicle.  Immediately prior to the accident the appellant was aware that there was gravel on the road and that the road was wet.  There was a finding that the appellant was travelling too close to the vehicle in front of him and travelling too fast.

1. The appellant described the gravel on the roadway as being loose stones and gravel which because of the water had turned to a “slurry type affair”. 

1. After the accident Constable Upson inspected the scene and formed the view that the gravel posed no particular danger to motorcyclists.  One of the group travelling with the appellant, a man named Blake, returned to the scene the following day.  His evidence was that there was an excessive amount of gravel on the roadway.  The learned trial judge preferred the evidence of Blake to that of Constable Upson and found that there was a significant amount of gravel at the scene which posed a significant hazard to motorcycle riders.

1. Atkinson was an employee of the respondent who was the job foreman in charge of the roadworks at the time.  He was on site daily and checked the roadworks on the weekend.  Trucks associated with the respondent’s roadworks would be empty of gravel when passing the accident scene.  But Atkinson gave evidence that private gravel trucks could use the route through the town which would take them past the accident scene.

1. On the morning of the day of the accident Atkinson drove around the roads in question.  He was checking to see that all signs associated with the roadworks were still visible to motorists.  He was also looking for any other irregularities.  He drove past the accident scene but did not notice any excess gravel on the road there.  The learned trial judge noted that “Atkinson thought there may have been some loose gravel in that general area”.  The learned trial judge considered “the evidence of Mr Atkinson was generally reliable”.

1. The learned trial judge inferred that, given the distance from the accident scene to the roadworks, it was unlikely that gravel from the roadworks would have been carried so far down as to the accident scene by passing traffic.

1. The learned trial judge also noted that Kidston Street was not swept between 15 and 16 June.

1. McNeven, the Works Supervisor employed by the respondent, gave evidence that he drove along Kidston Street on Saturday, 14 June, and did not notice anything that concerned him about the road surface.

1. The learned trial judge then noted the evidence as to rainfall on the day of the accident.  He concluded that there was some rainfall in Canungra on 15 June prior to the time of the accident, but it was not raining when the incident occurred.

1. The learned trial judge then dealt with the use by the council of a water truck in connection with the roadworks.  The water truck was primarily used in Christie Street.  The learned trial judge found that neither on 14 or 15 June was the water truck used in the vicinity of the accident scene.  He also found that the respondent was not responsible for the water on the road in the vicinity of the accident scene on the day of the accident.

1. The learned trial judge noted that the onus was on the appellant to show that the excessive gravel deposited on the bitumen surface of the accident scene was deposited there by the respondent.  He said that the appellant must therefore “persuade the Court that an inference should be drawn that the activities of the Council were responsible for the excessive gravel deposited on the bitumen surface of the accident scene at the time of the accident”.

1. After restating that there was no direct evidence that the respondent was responsible either for the excessive gravel on the road or the water on the road, and that he was unable to draw the inference that the respondent was responsible for either of those matters he concluded that there was no negligence on the part of the respondent.

1. The evidence did not establish how or when the gravel in question came to be on the roadway at the scene of the accident.  The findings made with respect to inspections by Atkinson and McNeven could not support a conclusion that there had been inadequate inspection by the respondent of the road surface in question.

1. The learned trial judge also referred to the legal liability of the respondent as the local authority responsible for the roads in question.

1. Consideration of the reasons for judgment of the learned trial judge indicates that he determined the issue of liability of the respondent by applying ordinary principles of negligence.  Though he did refer in his reasons to a passage from one of the judgments in Buckle v Bayswater Road Board (1936) 57 CLR 259, his reasoning was not based on a distinction between misfeasance and non-feasance. It should be noted that the decision of the High Court in Brodie v Singleton Shire Council (2001) 75 ALJR 992 abolishing what had previously been referred to as the “highway rule” was delivered after judgment in this particular case.

1. All the findings of fact made by the learned trial judge were clearly open on the evidence, and he applied the appropriate test in determining whether or not the respondent was liable.

1. No error in his reasoning has been exposed.  There is no basis for this court interfering with any of the findings of fact made.

1. It follows that the appeal should be dismissed with costs.

1. HOLMES J:  I agree with the reasons for judgment of Williams JA and with the orders he proposes.