Inverell Shire Council v Keith Lloyd Johnson
[2002] ACTCA 11
INVERELL SHIRE COUNCIL v KEITH LLOYD JOHNSON [2002] ACTCA 11 (17 December 2002)
CATCHWORDS
NEGLIGENCE – appeal from decision of Master – liability – highway authority – duty to warn motorist of unsafe road surfaces.
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512
Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474; (2000) Aust Torts Reports 81-579
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 1-2002
No. SC 549 of 1998
Judges: Crispin P, Higgins and Gray JJ
Court of Appeal of the Australian Capital Territory
Date: 17 December 2002
IN THE SUPREME COURT OF THE )
)
AUSTRALIAN CAPITAL TERRITORY ) No. ACTCA 1-2002
) No. SC 549 of 1998
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: INVERELL SHIRE COUNCIL
Appellant
AND: KEITH LLOYD JOHNSON
Respondent
ORDER
Judges: Crispin P, Higgins and Gray JJ
Date: 17 December 2002
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
IN THE SUPREME COURT OF THE )
)
AUSTRALIAN CAPITAL TERRITORY ) No. ACTCA 1-2002
) No. SC 549 of 1998
COURT OF APPEAL )
BETWEEN: INVERELL SHIRE COUNCIL
Appellant
AND: KEITH LLOYD JOHNSON
Respondent
Judges: Crispin P, Higgins and Gray JJ
Date: 17 December 2002
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a decision of Master Connolly, handed down on 28 March 2002, finding that the respondent had suffered personal injury as a result of the negligence of the appellant and, in consequence, entering judgment for the respondent in the sum of $84,654.44 with costs.
The appellant does not seek to vary the assessment of damages but challenges the Master’s finding as to liability.
The accident in which the respondent was injured occurred on 23 April 1998 on the Gwydir Highway some 15 kilometres east of Warialda in the State of New South Wales. He was the lead rider of two motorcyclists negotiating a short stretch of road then under reconstruction by the appellant. The appellant did not contest its responsibility for the works in question nor for the manner in which they were carried out.
The highway at the place in question was, generally, a bituminised two lane road. The up-grading of the short stretch referred to involved the removal of the old bitumen surface. At the time of the accident, the surface was unsealed. It had been raining heavily which affected the site very badly. It was wet and slippery. At the time of the accident, the heavy rain had eased but it was still drizzling. It was approaching 10.00 am.
There were signs warning approaching traffic of the works in question. First, “Roadwork Ahead”. Next, “60” over “ROAD WORK” and a representation of a worker at work. Next, “Rough Surface” and, then, “REDUCE SPEED NOW”.
The respondent proceeded but at a cautious speed which he estimated at 20 kph. He slowed further when he got onto “the dirt, or the mud”. At first, the surface, though wet and slippery, was firm. Then, as they proceeded downhill, “it was very – very soft and, as I explained here, potholed, tyre ruts, but – but soft. The bike started to sink a bit”. He attempted to negotiate a path through the potholes and wheel ruts. He estimated that he had slowed to 10 to 15 kph and was in second gear.
The accident occurred when:
“… the front wheel of the bike got into one of the wheel ruts. I – it was fairly deep and I tried to steer the bike up over the edge of the wheel rut and the back wheel has just broken away and spun the bike around.”
In so spinning, the motorcycle was directed into the table drain on the side of the road. The motorcycle sank into the boggy area and fell over. Unfortunately, the motorcycle fell onto the plaintiff causing the injuries of which he complained in these proceedings.
He was an experienced rider. His cycle was a Honda Goldwing, a heavy and quite powerful machine, weighing about 370 kilograms. The motorcycle itself was not damaged, supporting the assertion made by the respondent that he was indeed proceeding very slowly and the cycle had, basically, toppled over due to the instability of the road surface.
There was no issue taken with the Master’s findings of fact.
Nor could it be pressed that the appellant owed no duty to take reasonable care for the safety of road users, including motorcyclists, who needed to negotiate the construction site.
The Master rejected a contention that an alternative sealed carriageway should have been constructed. Nor was that seriously contended for by the respondent on the hearing of the appeal.
Further, the Master considered, the signage in place was generally adequate.
However, it was submitted to the Master that, given the deteriorating conditions since the signage was placed, flagmen should have been assigned to warn traffic of the hazardous conditions. For exceptionally vulnerable traffic, like motorcycles, such flagmen might have suggested not proceeding at all. There was no issue but that workers were available so to act as the heavy rain had suspended all other work. After the accident, flagmen were posted.
Also significant, in the Master’s view, was the fact that the Acting Supervisor on site, Mr Hughes, had, between 7.30 am and 8.30 am, inspected the site. He did so by driving through it in a twin-cab four wheel drive vehicle without engaging the four wheel drive. That inspection would not have necessarily told him anything about the state of the road for a two wheeled vehicle. In any event, he was so concerned about the state of the roadway that he rang his supervisor, Mr Morris, requesting his attendance. According to the protocols imposed by the appellant, only the latter (or the police) had authority to close the road.
Mr Morris was then in a meeting. About 10.00 am he got the message. He first rang local radio stations requesting they advise motorists “to avoid the construction if possible”. From this it may be inferred that Mr Hughes’ report was sufficiently alarming to warrant such a broadcast.
The Master concluded:
“26. I am satisfied that on the morning of this accident the extensive rain had rendered this section of roadworks particularly dangerous and hazardous. I am satisfied from all of the evidence that the road was quiet [sic] deeply rutted with tracks and potholes, and was very wet and slippery. I am satisfied that this caused the on site supervisor, Mr Hughes, to ring his superior, Mr Morris, to advise that the road would need to be inspected to see whether or not it should indeed be closed to traffic. I am satisfied that as a response to this call Mr Morris decided both to go out and inspect the road surface, and to authorise the placement of an advertisement over the local radio stations to warn motorists of the danger by advising them to avoid the construction if possible. This form of warning would have alerted motorists who were tuned to local radio of the particularly hazardous conditions, but it would not have alerted motorists who did not have the radio on, or motorcyclists.
27.I am satisfied that, given this combination of circumstances, it would have been reasonable for flagmen to have been placed at the construction site. This would have involved no additional cost, as the workers were on site but were in the caravans as the inclement weather made construction activity impossible. I note that this was done after the accident. I find that this would have been a reasonable response at a time when the radio warning had been given, and the senior officer was attending from the town to inspect the roadway to determine whether or not it should remain open. I make this finding in the knowledge that Mr Morris did inspect the road surface, and formed the view that closure was unnecessary. It seems to me that it does not follow from this that a greater degree of warning should not have been given.
28.…
29.I am satisfied from the evidence of the officers of the defendant that the steps they took in relation to signage were generally adequate for normal conditions, however I am satisfied that on the morning of this accident weather conditions combined with the state of the roadworks to create a particularly hazardous road surface, such that the site supervisor felt the need to call in his superior to form a view as to whether the road should remain open, and the superior felt the need to issue a radio warning to motorists to avoid the area. Once this point had been reached, it seems to me that the defendant should have taken additional measures to ensure the safety of users of the road who may not have heard this warning. There were labourers present who could perform the function of flagmen. A road authority cannot be expected to take abnormal precautions, and I have dealt with the proposition that the defendant should have built a second road surface. There was also a pleading that the authority should have provided a ‘ferry service’ for motorbikes over the unsealed section of the highway. No witness gave evidence that such a service had been provided by any road authority in Australia.
30.…
31.Counsel for the defendant argued in submissions that the provision of flagmen may not have prevented an accident, as a motorcyclist or motorist may well have decided to proceed through the roadway. So they might, but they would then have been made aware of the particular danger, and the authority would have exercised appropriate care so as to avoid liability. In all of the circumstances of this case I am satisfied that the defendant was in breach of its duty of care in not providing adequate warning, by means of flagmen, of the particular dangers of this roadway on this morning. It seems to me that particular 6(k) of the pleadings which alleges a breach of duty by “failing to discourage or prevent motorbike riders using the highway by appropriately positioning flagman [sic] or otherwise” has been made out, and accordingly I find in favour of the plaintiff on the question of liability.”
Appellant’s Submissions
It was the appellant’s submission, in essence, that given the warning signs actually in place, the fact that the weather conditions were apparent, any person “exercising reasonable care for their own safety” would conclude “that they were about to encounter a rough surface that was slippery and was made of gravel”.
Thus, it was submitted, the risk was sufficiently drawn to the respondent’s attention that no further or different precautions were required.
The use of flagmen was, it was submitted, not an effective precaution. If there was no need for a “boggy when wet” sign, there was no role for a flagman verbally conveying the same information.
It was submitted that flagmen standing in the rain would breach industrial relations conditions or be at risk of out of control vehicles striking them. Those submissions are, with respect, fanciful. Proper protective clothing would be expected. The flagman would be stationed before the bitumen ceased and warn of conditions thereafter. They would not be at risk as a result of slippery conditions ahead.
In the alternative, it is suggested that the respondent was guilty of contributory negligence in proceeding at all until he had inspected the road surface on foot. That was an equally fanciful suggestion.
Respondent’s Submissions
The respondent’s submissions emphasised that even as early as 8.30 am, Mr Hughes was concerned enough to have Mr Morris attend the site. The latter had authority to close the road.
It would, it was submitted, have been open to Mr Hughes to have deployed any of six available men as flagmen to warn particularly vulnerable traffic not to proceed, even without Mr Morris’ express permission.
The latter would be required because, although slippery and wet conditions were to be expected by a reasonable motorcycle rider, the especially boggy conditions in the low area were not immediately obvious until encountered, by which time it would be too late to avoid the risk of the motorcycle, whether ridden or walked, toppling onto the respondent. He was committed to proceeding at the time of the accident.
The same submission was made in rebuttal of the allegation of contributory negligence. The respondent had proceeded as cautiously and slowly as might be expected. It was at a much lesser speed than the 60 kph recommended. He could not know of the significantly impassable condition of the lower part of the road surface for motor cycles in particular.
Further, as Mr Hughes was himself an experienced motorcycle rider, his mind should have gone to the particular hazard for motorcycle riders.
Conclusions
In my/our opinion, the Master’s conclusions were not only open on the evidence, but clearly supportable.
The appellant had a reasonable opportunity as early as 8.30 am to have determined that, whilst ordinary traffic could safely proceed with extreme caution, any traffic was undesirable. Hence the broadcast warning.
That warning could not avail traffic en route not attuned to a relevant radio station. In particular, it could not avail motorcycle riders. The signs and condition of the surface on the transition from bitumen to wet gravel could not have warned the respondent until too late that his motorcycle would bog and hence, very likely, topple over risking injury if it fell on him.
Certainly, had the respondent proceeded at a speed that was unsafe on a gravel surface affected by rain, he would have courted obvious danger. As the High Court emphasised in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512, that is not a risk which a defendant needs to guard against (see also Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474; Aust Torts Reports 81-579.
But the Master did not misdirect himself as to the law as expounded in those decisions. Indeed, the submissions turn on the Master’s discernment of what reasonable precautions were called for following the road inspection at 8.30 am. It is no excuse for a defendant to say that even though its supervisor could or should have concluded that the road was unsafe for motor cyclists, nothing effective could or should be done until the superior, authorised to take action, could be contacted for orders.
On the evidence, total road closure might not have been required. A warning to traffic generally to reduce speed would suffice for most traffic. It was insufficient for motor cycle traffic. Flagmen, properly instructed, would have sufficed to avert the danger lying ahead.
Accordingly, as the Master misapprehended neither the facts nor the law, the appeal should be dismissed with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 17 December 2002
Counsel for the Appellant: Mr R S Sheldon
Solicitor for the Appellant: Phillips Fox
Counsel for the Respondent: Mr R Mildren
Solicitor for the Respondent: Pamela Coward & Associates
Date of hearing: 30 October 2002
Date of judgment: 17 December 2002
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