JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HUNTER HOLDINGS PTY LTD -v- SHIRE OF CORRIGIN [2005] WADC 211 CORAM : CRISFORD DCJ HEARD : 3 - 7 OCTOBER 2005 DELIVERED : 11 NOVEMBER 2005 FILE NO/S : CIV 504 of 2001 BETWEEN : HUNTER HOLDINGS PTY LTD Plaintiff
AND
SHIRE OF CORRIGIN
Defendant
Catchwords: Torts - Negligence - Heavy vehicle rollover - Whether breach of duty of care - Whether duty to erect warning signs - Causation - Whether warning signs would have affected driving - Obvious nature of risk
Legislation: Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
Local Government Act 1995
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Result:
Judgment for the plaintiff
Plaintiff's damages reduced by 30 per cent per cent to take account of his contributory negligence Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
Defendant : Mr P G McGowan
Solicitors:
Plaintiff : Srdarov Richards Burton
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Ballato v Pezzano, unreported; SCt of WA; Library No 930474; 26 August 1993
Brodie v Singleton Shire Council (2001) 206 CLR 512
Clark v Ryan (1960) 103 CLR 486
Laybutt v Glover Gibbs Pty Ltd t/as Balfours NSW Pty Ltd [2005] HCA 56
Nelson v John Lysaght (Australia) Ltd (1975) 49 ALJR 68
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Swain v Waverley Municipal Council (2005) 79 ALJR 565
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Anderson v Morris Wools Pty Ltd [1965] Qd R 65
Australian Capital Territory v Kitt [2004] NSWCA 444
Bomford v Commissioner of Main Roads (2000) 32 MVR 201
Calvert v Shire of Gingin (2004) 35 SR (WA) 201
Commissioner of Main Roads v Hennessey (1996) 24 MVR 440
Commissioner of Main Roads v Jones (2005) 215 ALR 418
Duval v Pederson (2003) 33 SR (WA) 211
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Hagger v City of Fremantle [2003] WADC 206
Hawkesbury City Council v Ryan (2001) 130 LGERA 99
Hoyts Pty Ltd v Burns (2003) 201 ALR 470
Insurance Commissioner v Joyce (1948) 77 CLR 39
Jones v Dunkel (1959) 101 CLR 298
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Mulligan v Coffs Harbour City Council (2005) HCA 63
Packer v Cameron (1989) 54 SASR 246
Pledge v Roads and Traffic Authority (2004) 205 ALR 56
Saidden v Drummoyne Municipal Council [2002] NSWCA 42
Spanswick v Laguzza (2002) 35 MVR 501
Town of Mosman Park v Tait [2005] WASCA 124
Vairy v Wyong Shire Council [2005] HCA 62
Wagner v Midland Junction Abattoir Board [1963] WAR 84
Waverley Municipal Council v Wagner (2002) 119 LGERA 167
Wynne v Pilbeam & Anor [2005] WASCA 200
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1 At about 3 pm on 3 March 2000 Anthony John Ferguson ("Ferguson") an employee of Hunter Holdings Pty Limited ("Hunter Holdings") was driving a 1999 Scania cab and prime mover ("the vehicle") from Kalgoorlie to Collie. A tanker was on the prime mover and it was filled with ammonium nitrate emulsion. 2 During the trip Ferguson was diverted on to a secondary road near the town of Corrigin. Whilst travelling the detour he negotiated a bend in the road at an unsafe speed and rolled the vehicle. 3 He was unhurt but the vehicle was damaged.
Issues 4 The plaintiff alleges the Shire of Corrigin ("the Shire") owed road users a duty of care for roads under its management and control. 5 This duty of care includes not exposing road users to faulty design characteristics and inadequate maintenance about which the Shire was aware or should have been aware. It further says there was a failure to adequately construct and maintain the road in question. 6 The plaintiff alleges that as a result of the topography of the road warning devices of various sorts should have been installed. 7 The Shire denies there was a duty of care but says that if the Court finds there is such a duty then the maintenance regime implemented was a reasonable one. In any event, it pleads there was no direct link between any breach of duty and the accident. 8 To the contrary it alleges Ferguson drove at an excessive speed in all the circumstances and this caused or at the very least contributed to the accident. It pleads he exercised a lack of care, skill, diligence and judgment in the manner in which he drove the heavy vehicle. 9 It also contends there is no actionable duty as a result of the provisions of s 9.57 of the Local Government Act.
Facts 10 Ferguson who was aged 30 years at the time of the accident was an experienced truck driver. He had changed his name to Bulstrode by the time of trial. The name Ferguson is used as a matter of consistency.
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11 After he left school Ferguson joined the Army. Whilst in the Army in 1990 he did a six week truck driving course and achieved his rigid truck licence. The following year he acted as instructor in a driving course.
12 Since 1993 he had driven semi trailers and road trains. 13 At the relevant time he held a Western Australia B and C class licence which covered the driving of road trains. He also held a dangerous goods licence which covered the carting of ammonium nitrate emulsion, a dangerous chemical. He had no traffic convictions associated with the driving of trucks or heavy vehicles. 14 On Friday 3 March 2000 he was to transport a load of ammonium nitrate emulsion from Kalgoorlie to Collie, a job he had performed numerous times before for Hunter Holdings. 15 The prime mover and trailer were already connected and on the morning of 3 March 2000 Ferguson simply had to load. He anticipated the return trip from Kalgoorlie to Collie including unloading time to be 14 hours. This included breaks but excluded loading time. 16 Stephen Morris Andrews ("Andrews"), the director of the plaintiff, gave evidence that a 14 hour round trip was impossible and that a reasonable estimate was 26 - 28 hours depending on the contractor. This allowed two hours of loading. 17 The total gross weight of the vehicle was around 44 tonnes. The Scania cab was 8 feet wide and the whole vehicle was about 38 to 40 feet long. Seated in the cab a driver was some 12 feet off the ground. 18 Ferguson commenced work at 6.30 am. He loaded the vehicle and left Kalgoorlie at about 7.54 am. Shortly after leaving, the truck developed an overheating problem and a replacement truck was provided. The journey was resumed mid-morning. He had lost about an hour. He denied he was in a hurry or was working to a fixed schedule. 19 Mid-afternoon he encountered a road block somewhere between Bruce Rock and Corrigin due to flood waters. He detoured, as indicated by signs, to the right and followed Hancock Road, a secondary road. 20 This was a single lane bitumen road roughly 10 foot wide with dirt shoulders. Ferguson states it was in pretty good condition for a single lane road.
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21 The vehicle was fitted with a speed limiter. It was not able to travel at a speed greater than 100 kmh. That is, it was not able to exceed the speed limit for trucks. Despite this, it was company policy to travel no faster than 90 kmh. This policy was based mainly on fuel economy.
22 Ferguson's evidence was that after following Hancock Road for 10 kilometres on a straight flat stretch he approached a rise in the road. Before he reached the crest he observed some grain receival sheds to his right through the trees. He suspected the road would go in the direction of the sheds. 23 Ferguson gave evidence that the rise to the crest was gradual. He remained on the bitumen of the single lane road and when he came over the crest he observed no vehicles coming towards him in the opposite direction. Prior to reaching the crest he gave evidence under cross-examination that "to a certain extent" he could see the road ahead. 24 From the top of the crest he gave evidence he noticed a "slight deviation in the road at the bottom" of the rise. He took his foot off the accelerator. Given the decline he simply maintained his speed. 25 In a statement made in hospital on the evening of the accident he stated he came over the crest and saw there was a "reasonably dramatic bend to the right". The statement says as soon as he saw the corner he "hit the brake to slow down" as quick as he could. 26 In his evidence, he says when he was halfway down the slope he realised the bend was tighter than anticipated. He braked at this point. He put the lefthand wheels on to the dirt to enable him to take a wider sweep through the corner. He braked as hard as he could before he got into the corner and commenced to turn. 27 His next recollection was standing on the side of the road with the vehicle on its side in the trees. He had been knocked out. 28 The speed limit on the road was 110 kmh but limited to 100 kmh for heavy vehicles. 29 Ferguson gave evidence at trial he was travelling at approximately 90 kmh when he arrived at the crest of the hill. Five days after the accident he gave a statement he was doing approximately 90 – 100 kmh. The evening of the accident, in hospital he described his speed as about 100 kmh.
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30 Relatively uninjured, he was hospitalised overnight and returned to his employment two weeks later. He then travelled the same route. A 70 kmh advisory speed sign had been freshly installed. This combined with a sign indicating the shape of the road ahead. He attempted to take the same corner at 60 kmh but he still felt the truck rolling.
31 Ferguson gave evidence that from his experience as a truck driver he could reduce his speed from 100 kmh to 60 kmh within a distance of 200 metres. As the evidence eventuated the distance from the crest to the turn at the base of the rise was 240 metres. He accepted that he could do an emergency stop in 200 metres but a non-emergency stop would be done in 500 metres.
Expert evidence 32 Geoffrey Colin Cocks, a civil engineer, was called to give evidence on behalf of the plaintiff. He had been employed by the Main Roads Department between 1971 and 1989 and was currently a consultant to it. He attended the accident site on 22 and 23 November 2000. 33 He described the scene. Approaching the crash site in the direction of travel of the truck, Hancock Road is straight for about 10 kilometres beforehand. At the crash site, Hancock Road turns to the right at an angle of 43 degrees. The radius of the curve on the road centre line is about 90 metres. Hancock Road forms a junction with a gravel road, Tulloch Road, at the crash site. Tulloch Road enters Hancock Road from the left. 34 The road is 3.7 metres but widens to 6 metres on the curve. This is where the crash occurred. Hancock Road has a bituminous sealed surface. The distance from the crest of the rise to the crash site is 275 metres. 35 He calculated that with a curve radius of 90 metres high trucks became unstable at speeds somewhere between 50 and 60 kmh when negotiating such a bend. 36 His observations allowed him to conclude the following:
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• The super elevation (the lifting up of one side of the road around a corner so gravity assists in a vehicle making a turn) was not developed to the appropriate level. He used the guidelines for roads and road related structures as set out in Austroads (1993), "Rural Road Design Guide to the Geometric Design of Rural Roads" Austroads, Sydney. • Main Roads Department (WA) 1970 ("Road Design Manual : Rural" : Perth) recommends a bitumen surface with a 7 metre width on a curve. The 6 metre width was substandard. • There was incorrect spacing between guide posts installed on the curve in accordance with the Standards Australia 1994 "Manual of Uniform Traffic Control Devices", AS17 42.2.1994. (There was no evidence as to whether these sign posts were present at the time of the accident or had been installed afterwards. Ferguson did not notice any.) He concluded that it was difficult to comply with the recommendations on numbers and spacing of the sign posts because of the entrance of Tulloch Road into Hancock Road. • Chevron markers should have been installed in accordance with Standards Australia (1994) AS3.4.4 to provide a significant visual clue to drivers of the presence of the curve. • The overall geometry of the road at the crash site was poor. This included the fact the curve was sharp given the 10 kilometres preceding this curve was of flat to undulating terrain. Without signage this creates the expectation of a gentle curve. • In circumstances of poor road geometry it is normal practice to install warning signs and there had been non-compliance with the Australian Standard guidelines for warning signs. • Road surface defects were generally within an acceptable range and unlikely to have contributed to the crash. 37 Eric Martin Simms, a chartered consultant engineer, was called to give evidence on behalf of the plaintiff. He attended the accident site on 16 March 2005. 38 He calculated the maximum safe cornering speed for a vehicle in a bend with a curve radius of 90 metre was 60.7 kmh. 39 He was of the view that gravel from Tulloch Road finding its way on to the bitumen of Hancock Road would have the effect of a vehicle's wheels losing contact and friction with the road surface and this would affect a vehicle being able to turn a bend at that speed.
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Relevant legal principles
40 It is useful to consider the reasons of Gauldron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512. Their Honours considered the ordinary test of liability in negligence in the context of its application to a public authority. The court considered the duties of such an authority in relation to inspection and repair. Their Honours said: [150] "… Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist. [151] The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments to the authority. The duty does not extend to ensuring the safety of road users in all circumstances. … In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case." 41 Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, had set out a two-stage test: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the
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affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk." 42 Recently, Gleeson CJ in Swain v Waverley Municipal Council (2005) 79 ALJR 565 stated: "The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours' keepers, but they are not their neighbours' insurers." 43 It was not seriously in issue that the Shire had a duty of care. The Shire conceded in its written submissions that it had a duty to take reasonable care to ensure that the exercise of its powers with respect to the thoroughfare did not create a foreseeable risk of harm to road users and if its duty was not restricted by s 9.57(1) of the Local Government Act then its duty was to take reasonable care to ensure that the failure to exercise its powers does not create a foreseeable risk of harm to road users. 44 Save and except for some documents tendered there was no viva voce evidence led by the Shire. As a result of flood waters a portion of the Bruce Rock-Corrigin road was diverted onto a secondary road, Hancock Road, which was under the supervision and control of the Shire. 45 Diverting the flow of traffic from a main road onto a secondary road logically suggests an increase in the amount of travel on that secondary road. Road users like Ferguson who wished to continue to travel east, were directed down the alternative route. 46 Cocks gave evidence that Hancock road was likely to have been constructed in or around the 1970's or early 1980's. 47 I find it reasonable for the Shire to have foreseen that there would be an increased flow of traffic on this old, albeit in relatively good condition, secondary road. I find it reasonable for the Shire to have foreseen that such traffic was unlikely to have been familiar with Hancock Road or, even, single lane bitumen roads. It follows that it was foreseeable that
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there may be a risk of injury to road users, including Ferguson, as a result of faulty design, construction or inadequate maintenance of the secondary road. 48 Adopting the two stage test of Mason J in Wyong Shire Council v Shirt (supra) it then needs to be determined what a reasonable shire would do by way of response to the risk. 49 I accept the content of the Cocks report as it sets out: "The constraints on road funding faced by local government, are such that roads with substandard geometry cannot all be reconstructed in the short term and it is common practice to leave reconstruction of such roads until such time as this is necessary for road pavement deterioration reasons. It is normal practice to install warning signs and other traffic control devices ahead of sections of roads with substandard geometry." 50 Again I make the comment the Shire gave no evidence in relation to the length of time it was anticipated that Hancock Road would be used as a detour, the exact maintenance regime "implemented" and whether there were any other competing or conflicting responsibility or commitments of the Shire. 51 Despite the absence of evidence from the Shire I am not satisfied on the balance of probabilities that the failure to carry out full scale reconstruction of the road was reasonable in all the circumstances. Putting aside the issue of expense, some aspects of the faulty design may not have been easily ascertainable. Some aspects were however, obvious. 52 It is clear that the installation of a "curve ahead/modified intersection/advisory speed" sign was warranted. Two weeks after the accident such a sign was installed. This would have been a reasonably practical warning system that may have eliminated or minimised the risk of the accident Nelson v John Lysaght (Australia) Ltd (1975) 49 ALJR 68. 53 Additionally, the installation of chevron markers in the bend itself is likely to have created a visual clue of the severity of the bend for those cresting the rise 240 metres away. Whilst there was some indication the road was to bend the severity of the bend was not easily ascertainable. It was easy to assume the road would go to the right but the severity of the curve was unannounced.
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54 I find it reasonable for the Shire to have installed warning signs and chevron markers.
Causation 55 Hunter Holdings must prove that some misconduct on the part of the Shire caused or materially contributed to the accident. Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 482 per Kirby J. 56 It would have done so if it proved the failure to put up any warning speed limit signs and chevron markers had in some way misled Ferguson into thinking the road conditions ahead were better than they were. 57 I accept the evidence of Cocks insofar as it relates to the overall geometry of the road at the crash site being poor. Whilst it was unreasonable to expect the Shire to carry out full scale reconstruction on a detour road it was not unreasonable, given its "implemented" maintenance regime to install some warning of the difficulties a driver would face. This would allow the manner of driving to be modified accordingly. 58 Ferguson was an experienced truck driver. Like most motorists he relied upon road signs to direct his manner of driving and to alert him to any road conditions that could cause difficulties not immediately noticeable. There was nothing at all to suggest he would not have observed and heeded an advisory warning sign. 59 Here the road presented, at the base of the incline, following a straight piece of road, a sharp bend as opposed to a gentle curve. There was also a modified intersection with gravel likely to be present on the surface of the road. It was clearly a situation warranting a reduction in speed. 60 As McHugh J in Laybutt v Glover Gibbs Pty Ltd t/as Balfours NSW Pty Ltd [2005] HCA 56 stated: "… the plaintiff must do more than prove a reasonably foreseeable risk of injury. To succeed, the plaintiff must also show that the exercise of reasonable care by the defendant would have avoided, or reduced the extent of, the injury. … the jury will seldom be able to find for the plaintiff unless the plaintiff tenders evidence as to the precautions that were reasonably available to the defendant and which would have avoided the plaintiff's injury."
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61 I accept that a motorist travelling Hancock Road is likely to have been lulled into a false sense of security by the preceding 10 kilometres of straight road. Whilst a curve at the base of the incline was apparent its severity was not. There was no significant cue for a motorist of the need to take action in the manner in which a vehicle was being driven.
62 I find that Ferguson would have heeded a warning sign.
Issue of immunity 63 Counsel for the Shire pleads that it is was entitled to the immunity contained in s 9.57(1) of the Local Government Act 1995. This provision reads as follows: "9.57 Local Government protected from certain liability (1) A person cannot recover damages against a local government in respect of loss or injury sustained either to that person or another person or to property by reason of a mishap upon or while using a portion of a thoroughfare, which portion has not been interfered with by the local government, merely because some other portion of that thoroughfare, whether distant laterally or longitudinally, has been taken over or improved by the local government. (2) Subsection (1) does not relieve a local government from liability where the mishap is caused by the negligence of the local government in the execution of works then in progress, or which have been completed by the local government in a thoroughfare." 64 The common law position until Brodie (supra) appears to be that a local authority with respect to roads could not be liable for nonfeasance, that is taking no action, but would only be liable for misfeasance, that is for some positive step carried out negligently. This is reflected, to a certain extent only, in the provision of the Local Government Act 1995. 65 The legislative provision existed well before the 2001 High Court decision in Brodie. 66 It is not simply a matter of raising the provision of the Local Government Act but it is a matter of the factual scenario in this particular case coming within the provision, even if the provision was found to apply.
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67 It is not disputed that Hancock Road was part of the Corrigin road district as vested in the Shire of Corrigin by publication of the Western Australian Government Gazette on 5 December 1919. It is also accepted that the Shire undertook repairs and maintenance of the road through its agent, the Shire of Bruce Rock. It further pleaded that the maintenance regime concerning the Hancock Road segment implemented by or on behalf of Corrigin was reasonable.
68 The road was specifically allocated as a detour road for traffic travelling the main Bruce Rock-Corrigin road. There is nothing to suggest that the Shire was not instrumental in selecting, overseeing, sign posting and maintaining the entire detour section within the Shire. 69 I am not persuaded that the provision as contained in s 9.57(1) has application to the facts of this particular case. 70 In any event I am of the view that in the face of a positive duty of care any failure to take action which amounts to negligence is clearly permissible outside the bounds of the statutory provision.
Contributory negligence 71 The Shire pleads that if the accident occurred as detailed by Ferguson the accident was caused, or contributed to by the negligence of Ferguson. 72 The negligence particularised is that of excessive speed in all the circumstances and lack of care, skill and diligence in failing to observe the curve. 73 Contributory negligence is a failure to take reasonable care for one's own safety. What would a reasonable person have done or refrained from doing in all the circumstances. 74 The onus of proving contributory negligence is upon the defendant. 75 In Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 Hayne J said that apportionment legislation such as Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947: "is predicated upon a finding that a person suffers damage as a result partly of the person's own fault and partly of the fault of any other person or persons. No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, that is, the degree to
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which each has departed upon the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the relative importance of the acts of the parties in causing the damage and it is the whole conduct of each negligent party in relation to the circumstance of the accident which must be subjected to comparative examination." 76 I do find that the plaintiff has suffered damage as a result partly of its employee's fault and partly as a result of the fault of the defendant. 77 There is no denying Ferguson was an experienced driver. He drove trucks for a living. He drove long distances frequently. 78 He was travelling an unfamiliar road. It was a secondary road being used as a detour. It was not his usual designated route. He was travelling a single lane. He approached a rise in the single lane. He did not have a clear view of the road ahead. He did not slow his vehicle or move over. 79 Prior to arriving at the crest he was aware the road was likely to swing to the right at some stage. He did not reduce his speed. 80 When he crested the rise he knew exactly where the road would curve to the right and he simply took his foot off the accelerator. This did not affect his speed in any way. 81 In his statement to the police made on the evening of the accident he indicated that his speed was about 100 kmh and as he came over the crest he saw the bend was "reasonably dramatic". I accept a degree of trauma was immediately experienced by Ferguson as a result of the accident. I balance this with what I assess to be a degree of reconstruction and rationalisation in the weeks, at least, following the accident. 82 Ferguson had lost time in the trip due to an overheating problem. His estimation of the time to complete the round trip was some 10 hours less than the director of Hunter Holdings whose assessment was based generally on his drivers. Whilst I accept Ferguson may not have been working to a schedule or that he was consciously in a hurry, he was outside his original expected trip time. I formed the view that although he was not trying to make up the time he was certainly not going to lose any more time.
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83 I find that a reasonable and prudent driver in Ferguson's position, that is a driver of a tanker of dangerous chemicals in a long, heavy vehicle with a high centre of gravity on an unfamiliar road, would have substantially reduced his speed even before cresting the rise.
84 Even prior to reaching the crest he had a fair idea the road would go to the right. 85 It is obvious that the negotiating of any curve in these circumstances requires more than simply maintaining a speed of 90-100 kmh which is what happened once Ferguson first saw the curve. Even on his own evidence, if he had braked earlier he could have substantially slowed the speed of the vehicle. I find he was travelling closer to 100 kmh than to 90 kmh. He had been travelling a straight, flat to undulating section with no traffic. He stated he was travelling at around 100 kmh at a time very close to the accident. He was not exceeding the speed limit but that does not justify the speed in all the circumstances. 86 I regard Ferguson's conduct as falling short of that which would be expected from him. 87 The second step is for me to make an assessment of the apportionment which the legislation requires by making a comparison of the culpability of the parties. In doing this regard must be had to the relative importance of the acts of the parties in causing the damage. 88 It is reasonable to assume that most adults will not take unnecessary and obvious risks. 89 Road users are expected to act reasonably in the driving of motor vehicles and to take care for their own safety when they make judgments about how they will drive in certain circumstances. 90 In my opinion a reduction of 30 per cent is just.
Loss and damage 91 The plaintiff alleges that it has suffered the following loss and damage as a result of the accident: i) Towing fee for vehicle $1,450.00 ii) Cost of cleaning the accident site $1,693.75 iii) Assessing fee $2,000.00 iv) Loss of the vehicle (less salvage of $3,500) $127,861.00 Total $133,005.00
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92 There was little or no challenge to the invoices put in evidence in relation to the towing fee and the assessing fee.
93 The cost of cleaning the accident site with the attendant travel to and return from that site was charged by Andrews. He also charged time for waiting for the tanker to be up-righted and the cost of decanting the remainder of the dangerous load into another tanker and securing it. 94 There was some cross-examination about the possibility of charging twice for a portion of the travel. 95 Andrews explained that the component of travel involved simply the travel to and return from the accident site and did not include the cost of driving the load in another tanker to Collie, and then returning to the accident site as that was part of the original contract. 96 In cross-examination he was questioned about his ability to charge for the return part of the journey from the accident site to Kalgoorlie. It was never fully clarified as to what amount and the basis upon which it should be reduced. 97 In all the circumstances I accept that the amount expended by Hunter Holdings for travel, cleaning the site and decanting the product as reasonable and will allow the full amount claimed. 98 In relation to the loss of the vehicle, it was conceded by counsel for the Shire that the only attack in that regard was on the evidence of Donald Patrick Walmsley Bingham ("Bingham") who was a truck and machinery dealer and a licensed valuer. 99 The only reservation was that the witness did not set out the basis upon which his valuation was carried out. This valuation underpinned the evidence of Julian Barran of Prime Assessing and put all the valuation evidence in doubt. 100 Bingham had been a licensed valuer for 30 years. He held what he described as a general licence which is issued to a person based on the amount of time spent within an industry, the experience demonstrated in the industry, and references provided to support these matters. It did not consist of any course of study involving the principles or theory of valuation.
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101 He gave evidence that the figure he arrived at in relation to the particular vehicle was based on the market value on the day. He said:
"I study the market, have a look at what's being sold, what the retail value is on that particular truck, if it was sold new; the age of the truck. The truck in question was about 5 months old; the condition generally in the truck, what the truck was equipped with, what the market says. The market can be obtained through red book valuations or different periodicals or what's for sale generally in Australia." 102 He also gave uncontradicted evidence that in Perth he conducted an estimated 98 per cent of the valuations of every damaged heavy truck in Perth. 103 In order for expert opinion to be accepted by a court, two fundamental things must be established. The first of these is that there must be a recognised body of knowledge which bears on the fact in issue in the case. The evidence of witnesses possessing particular skill is admissible whenever the subject matter of the enquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance (Clark v Ryan (1960) 103 CLR 486). 104 Secondly, the witness who purports to be an expert must be sufficiently expert in that body of knowledge to enable him or her to assist the court: Ballato v Pezzano, unreported; SCt of WA; Library No 930474; 26 August 1993 at 5. 105 A course of study is not of itself necessary. Intensive practical experience in some fields may be sufficient in the absence of formal technical qualifications. 106 The witness gave evidence about the basis upon which he formed a view as to the value of the damaged vehicle. It was not simply a matter of being aware of each of the factors upon which he formed the valuation but it demanded the experience to marry the different factors together to form a value. He had 30 years experience. 107 It is my view that it is not a question upon which a Judge could be expected to have the ability to make a decision without the assistance of expert knowledge. This was a heavy vehicle that had sustained substantial damage. Bingham had extremely lengthy experience in this
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area, and in my view that qualified him in terms of a "course of previous habit …" as referred to by Dixon CJ in Clark v Ryan. 108 This being the case I am satisfied that the reservation expressed by the defendant is ill founded. I find the loss and damage as claimed to have been proved.
Conclusion 109 I find the defendant liable in damages to the plaintiff for loss and damage sustained by it as a consequence of the accident. However, the plaintiff's damages should be reduced by 30 per cent to take account of contributory negligence.
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