Holloways Beach Resort Pty Ltd Moreton Bay Regional Council
[2013] QCAT 93
•22 February 2013
| CITATION: | Holloways Beach Resort Pty Ltd Moreton Bay Regional Council [2013] QCAT 93 |
| PARTIES: | HOLLOWAYS BEACH RESORT PTY LTD (Applicant) |
| v | |
| MORETON BAY REGIONAL COUNCIL (Respondents) |
| APPLICATION NUMBER: | MCD 113/12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 1 February 2013 |
| HEARD AT: | Pine Rivers |
| DECISION OF: | Andrew McLean Williams, Member |
| DELIVERED ON: | 22 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application dismissed |
| CATCHWORDS: | Minor Civil Dispute – property claim – tyres of motor vehicle destroyed when colliding with a pothole concealed by stormwater - alleged negligence by respondent in undertaking previous repairs to road surface in area of pothole – meaning to be attributed to the expression “actual knowledge of the particular risk the materialisation of which resulted in the harm” when used in s.37 of the Civil Liability Act 2003. Civil Liability Act 2003, ss. 35, 36, 37. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Alastair Macadam, of Counsel (direct brief) |
| RESPONDENT: | Mr Rhys Dennison, Legal Officer, Moreton Bay Regional Council. |
REASONS FOR DECISION
Preliminary
The Applicant is the registered owner of a 2007 model BMW ‘335i’ convertible motor vehicle.
At about 9.55pm on Saturday 6 March 2010, Mrs Christine Gilliland who is one of the directors of the Applicant Company, was driving in the BMW in a generally south-easterly direction, on Samsonvale Road, at Bray Park. It had been raining. There is a bridge over a creek at Bray Park near to where Samsonvale Road intersects with Edwards Street.
As Mrs Gilliland approached that bridge, she observed stormwater pooling on the surface of the carriageway however, she did not see a large pothole in the road, because the surface water obscured it. Mrs Gilliland drove over the pothole, and it is thereby alleged that serious sidewall damage was caused to each of the tyres fitted to the left-hand (passenger) side of the BMW, thus rendering each of them non-roadworthy.
As a consequence the Applicant now claims against the Council $1,278.00 for two replacement tyres as well as $98.00 for the cost of bringing this claim before QCAT, thus making for a total claim against the Moreton Bay Regional Council of $1,376.00. The Respondent Council admits the quantum of that claim, however it denies liability.
At the scheduled hearing this matter became the subject of two preliminary applications by the Council, both of which have been rejected by me. Firstly, the Respondent contended that QCAT does not have the necessary jurisdiction to determine this matter, by reason that the claim is one that does not fall within the definition of a ‘minor civil dispute’. In this regard, Schedule 3 of the QCAT Act 2009 defines a minor civil dispute to mean inter alia -
Minor civil dispute means –
“(c) a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle”
Although the claim is one that is for less than the prescribed amount, the Respondent submits that the terms ‘property’ and ‘vehicle’ when used in the above definition ought not be construed as if they were to refer to one and the same thing: such that the provision should only enable a minor civil claim to arise in circumstances where the damaged property is not the same property as that reposed in the vehicle that is alleged to have caused the damage. The Respondent was unable to refer me to any clear authority for that proposition, but says it would be an absurd interpretation if I were to construe the provision in any other way.
In the absence of any authority I am not persuaded that the definition of a minor civil dispute should be given the narrow construction now urged on me by the Respondent. The use of the disjunctive “or” in the context of property damage that can be either “caused by” or “arising out of” the use of a vehicle, within the definition of a minor civil dispute suggests the possibility of a minor civil claim for property damage in a wider context than simply cases of damage to some item of property that is caused by another vehicle. I am content therefore to rule that the definition of a minor civil dispute does not, on the face of it, preclude a claim arising in the circumstances of this case.
Next, the Respondent applied - pursuant to s.52(1) of the QCAT Act - to have this matter transferred to a more appropriate forum, claimed as being the Magistrates Court at Strathpine. The Respondent says that the matter is too complex to be determined as a minor civil dispute; that lawyers should not be encouraged to appear in minor civil disputes; and that the public interest is better served in this instance by having the matter agitated in a forum where costs might be recovered by the Council, should it be successful in defending this claim. I don’t accept any of those arguments. The greater public interest is to have this matter dealt with expeditiously and cheaply. The claim is a very straight-forward one, of no special complexity. I have given both parties leave to be legally represented, and questions of potential cost recovery are not sufficiently persuasive to make me minded to exercise the discretion in s.52(7) and have the matter sent to the Magistrates Court for determination.
Having dismissed both preliminary applications, I then proceeded to hear evidence in relation to the claim.
The Evidence
Mrs Gilliland was the only witness to give evidence on behalf of the Applicant. Mrs Gilliland told the Tribunal that she had been driving on Sampsonvale Road on a wet evening, when she felt her vehicle drop heavily, as if the passenger-side wheels had fallen into a pothole. The next morning when she inspected her tyres in the daylight, she realised that the tyres had been seriously damaged. One tyre had a torn sidewall and the other had deflated. The car was taken to a tyre retailer and the Applicant was advised that the tyres were no longer roadworthy, such that they needed to be replaced. The Respondent accepts that evidence.
A few days later, on 10 March 2010, and then again on 15 March 2010, Mrs Gilliland returned to the scene of the incident and observed a large pothole in the surface of Samsonvale Road, that had by that stage already been repaired with ‘hot mix’ asphalt, by the Respondent. As well, Mrs Gilliland observed there to be several other (obviously older) patches in the road, as well as a number of surface cracks. Photographs were taken.
In her evidence before the Tribunal those same photographs were put to Mrs Gilliland, and she identified what she says was the specific pothole that damaged the tyres of her BMW, identifying the pothole with the newest looking asphalt repair. I accept that evidence, and find, on the balance of probabilities, that the BMW being driven by Mrs Gilliland on the evening of 6 March 2010 sustained tyre damage in the manner now alleged by her.
The Applicant then put other photographs of the scene of the event into evidence. These include Google Earth “street view” screen shots from 2007 that show larger repaired sections on Samsonvale Road only about 2 metres to the northwest of the pothole that I have found damaged the BMW on 6 March 2010; along with these photographs portraying numerous other patched potholes around the location of the offending pothole, which itself did not exist, back in 2007. The Applicant now relies on these photographs as the basis for its submission that the Respondent Council must have been aware of problems with the condition of the surface of Samsonvale Road, prior to 6 March 2010. Distilled to its essence, the Applicant argues that the patchwork of repairs on this portion of Samsonvale Road reveals that Council has repaired the road in an inadequate, piecemeal manner; and that the Council must have known that the road had lost its overall integrity: and was thus highly susceptible to further potholes emerging. No expert evidence was led by the Applicant, yet I am invited to conclude that such a finding is open on the visual evidence, revealed in the photographs.
The Moreton Bay Regional Council called two engineering witnesses to give evidence. Mr David Cullen is the Operations Manager (South) for engineering, construction and maintenance, and is responsible for managing pothole repairs performed on Council roads within the southern area of the Moreton Bay Regional Council.
In an affidavit prepared for these proceedings, Mr Cullen swears that neither he nor any other person within Council was aware of the existence of the pothole on Samsonvale Road on or before 6th March 2010. Whilst there had been an earlier pothole in this vicinity of Samsonvale Road on 17th February 2010, Council records reveal that this had been repaired by 18th February 2010, which is obviously before the date of Mrs Gilliland driving into a pothole on Samsonvale Road. The next recorded report of any potholes in this section of Samsonvale Road was not until a report was made to Council on 8th March 2010 (being two days after the date of Mrs Gilliland’s accident involving a pothole). Council then promptly repaired that pothole, on 9 March 2010. In infer that the pot hole reported to Council on 8 March 2010 and repaired on 9 March 2010 is likely to be one and the same pothole as that which damaged the tyres of the BMW, on 6 March 2010.
In addition to his giving evidence in relation to the Council records of potholes on this section of Samsonvale Road, Mr Cullen described for the Tribunal the manner by which potholes can emerge, informing the Tribunal that these can appear very quickly after water manages to penetrate the bitumen surface of any roadway. The process was one described by Mr Cullen as water ingress by means of cracks in the surface of the road and then the fine particulate matter in the road sub-base being exuded from these cracks by “pumping”, as further traffic passes over that section of the road, thus allowing the larger particles of aggregate in the road base to loosen and fall apart. Mr Cullen also told the Tribunal that water ingress does not inevitably lead to pothole formation, yet that this is one of the known consequences of water penetration. He also informed the Tribunal that the accepted means for repairing potholes was to fill these with either hot mix or cold mix bitumen, as and when they appear. It was Mr Cullen’s evidence that this is standard practice within every public authority in the country.
Next, the Respondent called evidence from Mr Amardeep Singh who is the engineer responsible for “road asset renewal” within the Moreton Bay Regional Council Engineering, Construction & Maintenance Department.
Mr Singh’s functional responsibilities include identifying those Council controlled roads that are in need of either resurfacing or rehabilitation. Mr Singh explained to the Tribunal that “resurfacing” involves an intermediary repair, more extensive than mere pothole patching. Resurfacing involves the application of a waterproof sealant to the surface of the road as a form of preventative maintenance that can prolong the life of a road by anything up to 10-15 years. Resurfacing is undertaken when the road is assessed to have sufficient problems with water penetration to warrant resurfacing. Mr Singh was shown the photographs taken by the Applicant and he told the Tribunal that these did photographs did not in his opinion reveal a road that was yet sufficiently degraded to warrant resurfacing. Mr Singh then went on and explained that when a road was deemed no longer suitable for resurfacing that it is “rehabilitated”, which is a far more significant form of repair costing approximately ten times more than resurfacing. Mr Singh explained that it was his responsibility to investigate each of the Council controlled roads in order to determine whether any of these required either resurfacing or rehabilitation and that he does not generally consider it necessary to either resurface or rehabilitate any section of road that is less than 100m², simply because it shows some surface failures, in the form of either pot holes, bleeding, de-lamination, ravelling, environmental cracks, shrinkage cracks, or pavement failures (explained to mean differential settlement, complete failure, major depressions, or what is termed “crocodile” cracking).
Mr Singh also told the Tribunal that he had personally inspected this very section of Samsonvale Road in February and March of 2010, and that a subcontractor, Cardno Pty Ltd, had also undertaken an inspection on behalf of the Council on 19 February 2010. The results of these inspections did not reveal Samsonvale Road to be a likely candidate for either resurfacing, or rehabilitation, at that time. In Mr Singh’s opinion, any surface failures revealed on Samsonvale Road at that time were still amenable to minor repairs, in the form of pothole patching.
It is the Applicant’s case that pictures taken of this section of Samsonvale Road shortly after 6 March 2010 show this section of Samsonvale Road to be in a hazardous state of disrepair. Yet, neither of Mr Cullen nor Mr Singh, as engineers, agree with that contention. The Applicant has no evidence to contradict those expert opinions. On this point, in his affidavit evidence, Mr Singh said:
“I strongly disagree that these photographs demonstrate that this section of Samsonvale Road was hazardous or in a state of disrepair on 6th March 2010. The photographs depict a patch of isolated surface failure and a small number of environmental cracks compared with the good standard of the road surrounding the photographed area. This isolated surface failure and associated environmental cracks is not indicative of a substrate failure or a more general failure of the road. The photographs do not depict pavement failure and associated crocodile cracking, which would more readily indicate to me that there is a possible substrate failure and a more general failure of the road. The isolated surface failure and environmental cracks are likely to be related to the pavement surface aging and environmental effects (i.e. sub-grade swelling/movement) upon that pavement which is experienced on nearly every road, and as such, this required nothing more than routine maintenance by Council (e.g. responding to pot hole complaints).”
The Applicant also put into evidence aerial photographs of Samsonvale Road taken much later, in 2012, that reveal a large portion of the road to have been resurfaced by then. The Applicant submits that this serves as further proof that any pothole repairs undertaken on or about 9 March 2010 were wholly ineffectual. Yet, Mr Singh said that this was not the case, and said that the major resurfacing works revealed in the 2012 aerial photographs are attributable to a much more significant flood event that occurred later in 2011, wherein Samsonvale Road was very extensively damaged, thus necessitating the extensive repairs revealed in the 2012 aerial photographs. I accept that explanation and am not willing to attach any specific significance to the photographs that were taken in 2012.
In its defence of this claim the Respondent expressly relies on three provisions in the Civil Liability Act 2003, ss. 35, 36 and 37, which provide:
Section 35 Principles concerning resources, responsibilities etc. of public or other authorities
The following principles apply to a proceeding in deciding whether a public or other authority has a duty or has breached a duty—
(a)the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions;
(b)the general allocation of financial or other resources by the authority is not open to challenge;
(c)the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);
(d)the authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.
Section 36 Proceedings against public or other authorities based on breach of statutory duty
(1)This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.
(2)For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.
SECTION 37 Restriction on liability of public or other authorities with functions of road authorities
(1) A public or other authority is not liable in any legal proceeding for any failure by the authority in relation to any function it has as a road authority—
(a) to repair a road or to keep a road in repair; or
(b) to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.
(2) Subsection (1) does not apply if at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(3) In this section— road see the Transport Operations (Road Use Management) Act 1995, schedule 4.
road authority means the entity responsible for carrying out any road work.
The Applicant’s claim has been commenced in the very teeth of these provisions. Yet, the Applicant submits that section 37(1) should not here apply, because of s.37(2), and says that the Respondent Council had “actual knowledge” of the “particular risk” the materialisation of which resulted in tyre damage to the BMW.
When pressed by me to elaborate, Mr Macadam of counsel submitted on behalf the Applicant that the “particular risk” was that the surface of the road was compromised in terms of its ability to withstand water penetration, and that the Respondent Council had actual knowledge of that state of affairs by reason of its previous involvement in surface repairs in the locality of this incident. While it is true that Council had repaired potholes on this stretch of Samsonvale Road previously, the Applicant draws a long bow to say that this is sufficient to found a claim in negligence against the Respondent, particularly in light of the evidence.
In my view, it is inapt to categorise the particular risk adverted to in s.37(2) of the Civil Liability Act in the manner now urged by the Applicant. The word “particular” when used in the context identified by s.37(2) should be taken to mean the specific risk that is directly connected - in a strict causal sense - with the Applicant’s tyre damage. That risk can only be sensibly regarded as the formation of the actual pothole that damaged the Applicant’s tyres. In this context, the risk of water penetrating beneath the surface of the roadway (the particular risk now urged by the Applicant for the purposes of the sub-section) is no more than an antecedent risk, that may be conducive to subsequent pothole formation. That risk is just too causally remote to qualify as the particular risk the materialisation of which has resulted in the harm now complained about. There is no evidence that council was aware of that pothole, until after it was reported to Council on 8 March 2010, such that s.37(2) of the Civil Liability Act does not help the Applicant. The Applicant then has the further problem that it can point to no cogent evidence that the Respondent has been negligent in conducting road repairs on Samsonvale Road prior to 6 March 2010. In this regard, as should become clear from my reasons, I prefer the evidence of Mr Cullen and Mr Singh regarding pothole repairs.
The application is dismissed.
0
0
1