James v Shire of Bridgetown-Greenbushes

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JAMES -v- SHIRE OF BRIDGETOWN-GREENBUSHES [2000] WADC 315

CORAM: COMMISSIONER REYNOLDS

HEARD: 7-11 AUGUST 2000

DELIVERED : 30 NOVEMBER 2000

FILE NO/S: CIV 1014 of 1998

BETWEEN: SONYA SARAH JAMES
Plaintiff
AND
SHIRE OF BRIDGETOWN-GREENBUSHES
Defendant

Catchwords:

Damages - Personal injuries - Vehicle leaves road and collides with two trees - Potholes and loose gravel - Negligence - Causation - Highway Authority immunity - Nonfeasance - Misfeasance - Turns on own facts

Legislation:

Local Government Act 1960 as amended

Local Government Act 1995
Road Traffic Act (Vehicle Standards) Regulations 1977

Occupiers Liability Act 1985

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr N P Dobree
Defendant: Mr D M McKenna

Solicitors:

Plaintiff: Hoffmans
Defendant: Jackson McDonald

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

Buckle v Bayswater Road Board (1936) 57 CLR 259
City of Melbourne v Barnett [1999] 2 VR 726
Gorringe v The Transport Commission (CAS) (1950) 80 CLR 357
Hill v Commissioner of Main Roads (1989) A Tort Rep 80-260
McDonogh v Commonwealth (1987) 73 ALR 148
Singleton Shire Council v Brodie [1999] NSWCA 37
Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139

Case(s) also cited:

Aitken v Kingborough Corporation (1939) 62 CLR 179
Arvind v Greco (1995) A Tort Rep 81-357
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Flynn v The Commonwealth of Australia (1988) A Tort Rep 80-189
Griffiths v Kerkemeyer (1977) 139 CLR 161
Marr v Holroyd Municipal Council (1986) A Tort Rep 80-031
McDonogh v The Commonwealth of Australia (1985) A Tort Rep 80-702
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Parramatta City Council v Lutz (1988) A Tort Rep 80-159
Pyrenees Shire Council v Day [1998] HCA 3
Romeo v Conservation Commission of The Northern Territory (1998) A Tort Rep 81-457
Taylor v The Council of the Municipality of Marrickville, unreported; SCt of NSW; BC 8601114; 11 April 1986
Van Gervan v Fenton (1992) 175 CLR 327
Wyong Shire Council v Shirt (1980) 146 CLR 40

COMMISSIONER REYNOLDS:

Introduction

The plaintiff was born on 3 December 1971 and is 28 years of age. The defendant is a local government established within the terms of the Local Government Act 1995 as amended ("the 1995 Act").
At about 9.30 am on Monday 5 May 1997 the plaintiff was travelling westwards on Nelson Street, Bridgetown in her Holden Sunbird ("the Holden") and approaching the intersection of Nelson Street, Bussell Road and Hackett Street ("the intersection"). The intersection essentially represented a fork in the road for the plaintiff travelling in a westerly direction and approaching it on Nelson Street. The road surface of Hackett Street is the continuation of the road surface of Nelson Street beyond the intersection. If a driver was travelling in a westerly direction on Nelson Street towards the intersection then he or she would take the fork in the road to his or her right to continue into Hackett Street. The fork in the road to his or her left would take the driver into Bussell Road. On this occasion the plaintiff intended to continue on to her right through the curve of the intersection and into Hackett Street.
The plaintiff lost control of the Holden and collided with two trees just off the southern side of Hackett Street beyond the intersection, ie just off the left side of Hackett Street as the plaintiff travelled in a westerly direction ("the accident").
The plaintiff alleges that at about where Nelson Street joins the intersection she drove through a number of potholes and impacted in particular with a large pothole with her right hand front wheel. The plaintiff further alleges that after impacting with the large pothole she had difficulty in controlling the direction of the Holden and this difficulty was compounded by the uneven and roughly patched road surface and edges. The plaintiff further alleges that this difficulty caused her to lose control of the Holden and it collided with the two trees. The plaintiff alleges that the accident was caused by the negligence and/or misfeasance and/or breach of statutory duty under the 1995 Act and/or the Occupiers Liability Act 1985 by the defendant, its servants or agents.
The plaintiff further alleges that as a result of the accident she has suffered injuries which in turn have caused pain and suffering, expense and loss of earning capacity. In particular the plaintiff alleges that she suffered hepatic haematoma, a fractured right humerus, multiple rib fractures to the right chest, a closed pelvic ring fracture, bruising of the right shoulder, chest, lower abdomen, right hip and right knee and minor damage to the ears. The defendant does not admit that the plaintiff was injured in the accident as described by the plaintiff. Further the defendant does not admit that the plaintiff suffered any injuries or loss as a result of the accident as alleged. Further, if the accident did occur as alleged by the plaintiff then the defendant denies that it was caused by the negligence and/or misfeasance and/or breach of statutory duty of it or its servants or agents. The defendant has also pleaded that if the accident occurred as alleged by the plaintiff then it was caused or substantially contributed to by the plaintiff's own negligence.
In this particular case both liability and assessment are in issue.

The pleadings

The particulars of negligence and breaches of statutory duty alleged by the plaintiff in par 12 of her re‑amended statement of claim are as follows:
"PARTICULARS OF NEGLIGENCE AND BREACHES OF STATUTORY DUTY
The Defendant, its servants or agents were negligent and/or in breach of statutory duty in that:
(i)The Defendant failed to maintain the surface and edges of Nelson Street and Hackett Road in the region of the accident ('the road surface') in a safe condition; and/or
(ii)When it knew or ought to have known that the road surface had deteriorated and was dangerous did nothing or nothing adequate to remedy the position; and/or
(iii)It carried out periodical repairs to the road surface which were inadequate because:
(a)Of using inappropriate or poor quality materials; and/or
(b)Of being executed with insufficient skill; and/or
(c)They were left in situ long term despite being in the nature of short term repairs; and/or
(d)It failed to monitor the repairs and to renew them when they deteriorated; and/or
(e)They were in the nature of patch and repatch and therefore liable to faster deterioration than would have been the case had the whole road been resurfaced."
The defendant denies each and every one of these particulars of negligence and breaches of statutory duty.

Key issues

Two of the key factual issues concern whether the material section of Nelson Street and Hackett Street, Bridgetown had been repaired by the defendant prior to date of the accident and whether the Holden struck a pothole on this material section of road. Key issues of law include whether the defendant owed a duty of care to road users, including the plaintiff to maintain and upkeep this material section of the roadway, if the defendant did repair this part of the roadway did it exercise reasonable care in completing those repairs, if the defendant did owe a duty of care to the plaintiff was that duty breached in the circumstances, if the defendant did breach its duty of care to the plaintiff was that breach causative of the plaintiff's loss and damage and whether the plaintiff was negligent and if so whether that negligence caused or contributed to her loss and damage.
I will later refer to the plaintiff's particulars of negligence and breaches of statutory duty and state the particulars I regard as allegations of non‑feasance and those that I regard as allegations of misfeasance. The defendant denies all of the allegations no matter whether they allege non‑feasance or misfeasance. The defendant further says that even if the potholes on this material section of the roadway did pose a foreseeable risk to road users at the time of the accident then acting as a highway authority it will not be liable for any neglect on its part to construct, repair or maintain a road or other highway or for a failure to exercise care, control and management in respect of known dangers and would only be liable for misfeasance. (See Buckle v Bayswater Road Board (1936) 57 CLR 259 and Gorringe v The Transport Commission (CAS) (1950) 80 CLR 357.)

The evidence

The plaintiff gave evidence that as at the time of the accident she had been living at 21 Nelson Street, Bridgetown for approximately 12 to 18 months. She said that her house was about one kilometre from the intersection. She lived there with her two children, Anthony aged 12 and Danielle aged 8. On the day of the accident she drove her children to the Bridgetown Primary School in the Holden. After dropping them off at school she decided to go and visit a friend, Robyn Knowles ("Ms Knowles"), who lived at the top end of Nelson Street and approximately two to three kilometres from the Bridgetown Primary School. She said that she had first met Ms Knowles about two to three months before the accident.
The plaintiff gave evidence that as she travelled west on a straight section of Nelson Street towards the intersection the Holden was struggling and she had it in third gear because it was a fairly steep hill and there were speed de‑restriction signs before the intersection. A report of Geoffrey Cocks ("Mr Cocks") of Coffey Geosciences Pty Ltd dated 12 October 1998 in evidence contains a scaled drawing of the accident scene and it shows that the distance between the speed de‑restriction signs and the centre of the intersection is about 50 metres. The plaintiff gave evidence that once she had passed the de‑restriction signs she was in a zone where the speed limit was 60 kilometres per hour. She said that she was driving at between 50 and 55 kilometres per hour when she went past the de‑restriction signs. When asked how she remembered her speed she said:
"Because I looked at the speedo at that time. As I said, my car struggled to get up that hill that morning because it was rather cold. Unfortunately trusty old Holdens have a habit of being cold in the mornings and don't like to start and, like I said, my car did struggle coming up and around the bend that day, so ‑ and because I hadn't travelled up that road many times, I was just taking it easy in any case."
In cross‑examination the plaintiff gave evidence that she looked at her speedo to check her speed because the Holden had struggled coming up the hill and she was considering whether to change from third to fourth gear or to remain in third gear. When asked whether she controlled her gears by watching the speedo she replied: "No, I don't. I control my gears by the conditions of the road and the conditions of the car and the speed and all the conditions at the same time." I have some difficulty in understanding why at that stage the plaintiff would have been considering changing to fourth gear when the Holden was struggling in third gear.
The plaintiff gave evidence that before the accident she had driven through the intersection on a total of about four or five occasions. She added that she had also been through the intersection on "maybe a few more times as a passenger". She thought that the most recent occasion that she had driven through the intersection before the accident was in the week before the accident. She gave evidence that she was definitely reasonably unfamiliar with the area. Even so she said that she recalled road works being done in the area with pea gravel being laid on the edges of the road. She agreed with the proposition that she knew that it was necessary to travel at a safe speed to negotiate the intersection.
The plaintiff gave evidence that it rained during the night before the accident. She said that at the time of the accident the road was wet which made it look a darker colour than normal but there were no puddles or any significant amounts of water on the road. She said that as she drove on Nelson Street towards the intersection it was overcast and there was a fine, misty, drizzle but not enough to cause her to use her windscreen wipers. When asked whether she knew it was necessary to be even more careful in wet conditions she replied:
"Hang on a minute that's not necessarily so because on a dry day you can quite safely go around that corner at 60 kilometres and more and still negotiate the corner quite safely."
I have already mentioned that the plaintiff said that she was driving at 50 to 55 kilometres per hour when she passed the de‑restriction signs. When asked whether she accelerated beyond that point she said:
"I'm not aware - I would assume that I would have continued to accelerate to continue around the bend, yes, but if you're asking me definitely, then I cannot be clear because I simply don't know, but I would have been doing at near on the same speed as I came into that bend."
The plaintiff added that she believes she continued at about the same speed because she does not think that she changed into fourth gear and there was not much distance between the de‑restriction signs and the bend (in the intersection) which she estimated to be about 20 to 30 metres.
When the plaintiff was cross‑examined on the issue whether or not she braked when she drove past the speed de‑restriction signs she was asked and said:
"When you were travelling past the speed de‑restriction sign, did you brake there at all, as you approached the intersection?---I don't know. I would say that I did, but I don't know.
Did you tap your brakes?---I believe so, yes.
Why would you have done that if you did it?---Again, because of the - just - like I said, the car struggled coming up the hill and around that first bend, okay, and I - - -
So why would you tap your brakes?---For added surety I suppose. Maybe because I was in that space where I was debating to go from third to fourth and decided to stay in third. Maybe I felt that I was revving too high for third. I can't say exactly for sure why - - -"
I have some difficulty understanding how the Holden could be revving too high for third gear but at the same time be struggling up the hill. There was no suggestion of a slipping clutch.
The scaled drawing of the scene prepared by Mr Cocks shows a patched service trench across Nelson Street about 20 metres west of the intersection side of the de‑restriction signs. This drawing and photographs in evidence show that the trench is only about a metre or so wide and that the top of it is covered with a bitumen type seal similar to the road surface. A photograph in evidence shows that the edges along both sides of the length of the trench across the roadway are a bit uneven, ienot entirely straight, and seemed to be laid on top of the road surface.
The plaintiff gave evidence that as she drove in the area of the patched service trench there was a loud thump. She thought that she had hit a small animal such as a rabbit or a kitten and she looked into her rear vision mirror to check. She said that she only looked for a split second and did not see anything. She continued to drive towards the intersection with the Holden positioned towards the centre of the road. The plaintiff said that as she continued around the bend there was another loud thump. She said that it seemed as though the front right hand side of the Holden had stopped and dropped and then it took off sideways with the back end moving around to the left.
At the time of the accident the plaintiff lived in a de facto relationship with David Reynolds ("Mr Reynolds"). On the day after the accident Mr Reynolds attended the scene of the accident and took a number of photographs. They include a photograph taken on Nelson Street looking west towards the intersection and showing the de‑restriction signs and the patched service trench. There is a close‑up photograph of the patched service trench. A number of other photographs show the road surface in and about the intersection and its surrounds and the potholes on Nelson Street on the eastern side, ie the plaintiff's approach side, of the intersection. There are also several photographs of the potholes taken from various distances.
The photographs of the road surface in and about the intersection and its surrounds show pea gravel on the edges of the road and some overflow of pea gravel actually on the bitumen road surface. The photographs of the potholes on Nelson Street show four potholes. One of the photographs shows an Australian Rules football positioned in the middle of the biggest pothole. Mr Reynolds gave evidence that he took the photograph of the football in the largest pothole to indicate the area and depth of the pothole.
By reference to the scaled drawing of Mr Cocks in his report dated 12 October 1998 the four potholes are located in an area with a radius of about 2‑1/2 metres. There are no white lines at all on the roadway in and about the intersection. Looking at the photographs and doing the best I can and describing the position of the potholes by reference to a driver travelling west towards the intersection, the first pothole is located on the left half of Nelson Street just before the intersection and about centre to right of centre of that half. All of the other three potholes are located further forward and to the right of the first pothole. These other three potholes are all closer to each other than the first pothole is to the closest of the three of them. These other three potholes are all located near the centre/right of centre of Nelson Street just before the intersection. Of this group of three potholes when looking west and approaching them as the plaintiff was on this occasion the two smaller potholes are located diagonally opposite each other and in front of the largest pothole. The first of these two smaller potholes is located to the right of the other.
It seems to me from my examination of the photographs that if you were driving in a westerly direction and drove through either one of these two smaller potholes then you would likely continue on and drive into the largest pothole.
During the plaintiff's examination‑in‑chief she was shown a photograph taken by Mr Reynolds of the four potholes on Nelson Street and the intersection and indicated that this showed the relevant section of road where the second thump occurred. She was also shown a photograph taken by Mr Reynolds of the group of three potholes with a football positioned in about the middle of the largest pothole and asked which pothole she thought she may have hit and she said "I believe it was the largest pothole in retrospect, at the time of continuing around the bend" and "the one with the football in it".
In cross‑examination the plaintiff gave evidence that before the accident she was aware of some potholes in this section of Nelson Street at the intersection. However she said that on the day of the accident she did not see the potholes and "did not anticipate running into potholes or a brick wall as it felt at the day". When asked to explain why she did not see the potholes the plaintiff said that there was a lot of things to be aware of at the time and she made particular mention of weather conditions, road conditions and the fact that she thought that she had just hit an animal and wanted to rescue it. She conceded that she may not have seen the potholes because of a lapse in concentration. However, soon after making this concession, she denied the suggestion that she failed to see the potholes because she was looking behind and not keeping a proper lookout. She added that she was looking further up the road into the distance to see if it was safe to accelerate and whether any other cars were approaching from the opposite direction.

Some of the photographs taken by Mr Reynolds show a gravel road which runs off Nelson Street on the northern side of the intersection, ie on the plaintiff's right as she approached the intersection. In approximate terms this gravel road runs in a north/south direction and adjoins the intersection opposite Bussell Road. The potholes are located on Nelson Street adjacent to this gravel road. In cross‑examination and with reference to one of the photographs taken by Mr Reynolds of the four potholes the plaintiff was asked which one the front right wheel of the Holden went into. The plaintiff replied that she would not like to say because at the time of the accident she was not exactly aware of the relative positions of the potholes and the Holden. She added that it was not until later that she was able to identify the particular pothole "when I actually seen the photos and correlated the events". She gave evidence that the Holden seemed to have stopped and dropped and the back end started to come around to the left at a point opposite the gravel road on her right hand side.
In cross‑examination it was suggested to the plaintiff that if the front right wheel of the Holden went into the largest pothole then the Holden would have been too far towards the other side of Nelson Street. She said that she "would have been to the middle there somewhere". She also said that she did not normally travel in the middle of the road when going around a bend. She agreed that in this position it was likely that she would not have seen a car coming from the opposite direction until it was around the bend but added that she was not able "to distinguish the edges of the road" on this occasion. She agreed that the edges of the road can be seen in one of the photographs of the intersection taken by Mr Reynolds.
In cross‑examination on the issue of braking after striking the pothole the plaintiff was asked and said:
"Can you tell me did you brake at any time after you struck the pothole?---I don't know. Logic tells me no because I know not to break when you're in a sideward spin because it only adds to the effect and I know that from driving in previous experience from when I've been out paddock‑fashion.
Alright, so the answer is no, you don't know?---No, the answer is yes, I am aware of it. Sorry, no. No, I - - -
My question was, 'Did you brake' and the answer was 'I don't know'?---That's correct."
The plaintiff gave evidence that she does not know whether or not she accelerated after the Holden hit the pothole but added that she does not believe that she did.
The plaintiff said that after the Holden hit the pothole it moved to the left so that it was generally facing towards the gravel track to her right on the northern side of the intersection. She said that she then steered it back to the left to try to correct the sliding motion and overcorrected and went to the right. I understand her to mean that the back of the Holden swung around to her right hand side.
She said that by this stage the Holden "was past the intersection" but "still on the corner of the intersection". By reference to one of the photographs of the scene she indicated that the Holden was in the region of the junction of the western edge of Bussell Road with Hackett Street. This is the area at the far left corner of the intersection as the plaintiff travelled towards the intersection.
The plaintiff said that at this stage she looked for a space to the left side of the road where she could run the Holden to try and stop it. She said that she then overcorrected a bit to her right and then for a second time attempted to correct back to the left. I understood her to mean that the front of the Holden went too far to the right and she attempted to bring it back on line but came back too far. She then left the roadway and struck a tree just off the left hand side of Hackett Street. She thought at the time that this was the last tree in a group of trees. However she said that when the Holden hit this tree it was catapulted into a second tree. This second tree was about 8 to 10 metres further on from the first tree.
At the time of the accident the left front tyre on the Holden had insufficient tread on it in contravention of the Road Traffic (Vehicle Standards) Regulations 1977 ("the Regulations"). I will set out more details about this later. The plaintiff gave evidence that on the Wednesday of the week before the accident the front left tyre on the Holden went flat and she replaced it herself with the spare tyre that was stored in the boot. She said that unfortunately she had not repaired the flat tyre come the following Monday, the day of the accident.
The plaintiff gave evidence that before the accident she was not aware that "the tyre was deemed to be legally bald". She disagreed that a photograph of the tyre taken after the accident showed that the tyre was bald but agreed that it looked like it was due to be changed. She agreed that she was aware that the tyre was not in the best of condition when she fitted it in the week before the accident. When it was put to the plaintiff in cross‑examination that the tyre would not provide good grip in wet conditions she said: "Possibly not. Any dummy can see that". She said that after she had fitted the tyre and before the day of the accident she drove her children to school in Mr Reynolds' car rather than the Holden. In cross‑examination she said that at the time of the accident she was aware that the spare tyre was on the Holden but she was unaware that it would not assist her in emergency braking or regaining control of the Holden.
For the moment I propose to only deal with the issue of liability and so I do not propose to set out all of the injuries and symptoms complained of by the plaintiff and all of the medical evidence. However, in light of the plaintiff's pleading that she drove into the largest pothole and her evidence that there was a loud thump and that the Holden's right front wheel dropped when it was in the area of the potholes which makes her believe that she drove into a pothole I think that I should set out the evidence in relation to the plaintiff's right wrist. I do so because it is relatively well known that a wrist injury can occur when a car is being driven forwards and its front end impacts with something and force is absorbed by the driver's hands or hand on the steering wheel.
The front of the Holden hitting the first tree and the major impact with the second tree also needs to be taken into account when considering this issue. The plaintiff said that after the Holden hit the first tree it was catapulted sideways to the right and went broadside into the second tree. It seems from photographs that the impact between the Holden and the second tree was at about the middle of the driver's side of the Holden.
The plaintiff gave evidence that her whole right side was numb immediately after the collision. She said that she had pins and needles in her right hand after the accident. She also said that she told this to doctors but "it was fobbed off as part of the shoulder injury". She added that it was not until later that it was decided that her wrist injury was an injury in its own right. The plaintiff also gave evidence to the effect that she did not complain about any wrist injury when she was admitted to Bunbury Hospital after the accident because she was paralysed down the whole of her right side and could not identify any particular symptom from any particular part of the right side of her body.
The plaintiff was transferred from Bunbury Hospital to Royal Perth Hospital on the day of the accident. She was asked whether she complained about pins and needles in her right wrist when she was at Royal Perth Hospital and she replied "at that stage the shoulder injury was the aggravation, not necessarily the wrist." She believes that the first time she complained about pins and needles in her right hand was when she attended the Rehabilitation Unit of Royal Perth Hospital at Shenton Park. She did not say when that was. The plaintiff denied that she told a doctor at Royal Perth Hospital when she was reviewed in January 1998 that she was pain free. She said that at that time she was still using morphine for pain relief. The plaintiff gave evidence that she currently has problems gripping and sometimes cannot cut, write or operate a computer mouse with her right hand. She gave evidence that some days she can't hold or open a two litre container of milk. Despite her evidence of a wrist injury no such injury is alleged in the pleadings.
Anthony Robinson ("Mr Robinson") lives in Bridgetown and about one and a half kilometres from the accident scene. At the time of the accident he had been a councillor of the defendant shire for about six months or so of his three year term. He was very familiar with the intersection and said that he had driven through it thousands of times in the eight years before the accident.
Mr Robinson gave evidence that he had received complaints about gravel and potholes at the intersection and at the suggestion of the Shire President had passed them on to an assistant technical officer of the shire about two to three weeks before the accident. He said that he told the officer that the gravel and potholes "were causing inconvenience". He also said that he had spoken unofficially to Ranald Stewart, the Deputy Chief Executive Officer of the shire, on the intersection and the approaches to it but only about the general engineering of the road. Mr Robinson held a concern that people who did not know the layout of the intersection took the curve from Nelson Street to Hackett Street too quickly.
Mr Robinson could not identify any particular potholes shown in the various photographs in evidence as the potholes that he had received complaints about. It seems that the complaints were made in general terms. One of the photographs shows a series of potholes on the left side of Nelson Street as it curves left into Bussell Road at the intersection. He said that the complaints could have been about these potholes. These potholes would not have been in the plaintiff's line of travel on the day of the accident because she took the right curve in the fork of the road towards Hackett Street and not the left curve in the fork of the road towards Bussell Road. If the potholes complained about included the group of three potholes on Nelson Street then they would have been there, although not necessarily the same size, when the plaintiff drove through the intersection a week or so before the accident.
Mr Robinson identified one particular pothole shown in the photographs and said that he had driven through it on a number of occasions and "my wheel was jarred". The pothole he identified was the one that I have previously mentioned as being located on the left half of Nelson Street and about centre to right of centre of that half and before the group of three potholes for a driver travelling west as the plaintiff was on this occasion. It was clear from Mr Robinson's evidence that when he travelled west on Nelson Street towards the intersection his usual route was to the left into Bussell Road and not to the right to Hackett Street.
Mr Robinson gave evidence that he has never lost control of his car when he has driven through the intersection. He mentioned that on one occasion within two to three weeks of the accident his car had slipped on the gravel when he moved off from Bussell Road. It is important to appreciate that when he said this he was talking about having to stop or slow down and then move off from Bussell Road to turn right into Nelson Street. Mr Robinson would then be travelling down Nelson Street in the opposite direction to that which the plaintiff was travelling on the day of the accident.
Mr Robinson gave evidence that he would drive on Nelson Street at no more than 35 to 40 kilometres per hour as he approached the intersection. He did not think that he could negotiate the left turn into Bussell Road at 50 to 55 kilometres per hour without losing control. He considered 50 to 55 kilometres per hour to be a safe speed to travel from Nelson Street through the intersection to Hackett Street. He added that perhaps this speed would not be safe if the road was wet.
Mr Robinson attended the scene of the accident on the day it happened. By the time he got there the ambulance and the police had left. He said that it was not raining when he was at the scene but the road was damp. He also said that the road looked the same at that time as it does in the photographs taken by Mr Reynolds on the next day.
Mr Robinson gave evidence that the defendant shire had limited funding for road maintenance and had to decide how to apply the funds at its disposal. He said that in a small shire it is not possible to send a truck out to repair one or two potholes. He added that it was not always possible to repair potholes soon after they were reported because rain would wash out the cold fill.
Ericka Knight ("Ms Knight") and her daughter were the first people to stop at the scene of the accident after it had happened. Ms Knight recognised the plaintiff and told her daughter to go and contact the plaintiff's partner, Mr Reynolds. She said that it was drizzling but not raining at the scene and that the road was wet to the touch.
Ms Knowles lives in Maslin Street, Bridgetown which is not far from the accident scene. She has lived there for about eight years. She said that she and the plaintiff had arranged for the plaintiff to visit her property in the morning and for the two of them to go horse riding. After the plaintiff had not arrived at the scheduled time she decided at sometime between about 8.30 am and 9.00 am to go to town. She drove along Hackett Street towards Nelson Street and came across the accident. At that stage the plaintiff was in or close to being put in the ambulance. She said that there was misty rain at the time. She also said that early morning fogs make the road wet in that area. She added that the road was not "running wet". She left the scene to go and contact Mr Reynolds.
Ms Knowles was shown a photograph of the group of three potholes and another of the group of three and the single pothole on Nelson Street near the intersection and said that she recognised the potholes. She also said that they were subsequently covered up but are starting to appear again. She recalled a fair amount of gravel at the intersection at the time. She said that these four potholes had been at the intersection since about Christmas 1996 and that she had complained to Mr Robinson at the shire about them because she thought they were dangerous. She added that they got progressively worse after she first noticed them. She also said that she had driven a Land Rover over the potholes a couple of times and that "you had to hang onto the steering wheel when you hit them".
Ms Knowles referred to an occasion after the accident when "it was flogging down with rain" and the road was considerably wet and her husband drove a car "through the potholes at 60 k's and went across the road but managed to correct it". She said that she did not know which pothole they hit and added that if you hit one you were going to hit the others but even hitting one was bad enough.
Mr Reynolds commenced living in a de facto relationship with the plaintiff in March 1997. He said that he went to look at the road conditions at the accident scene the day after the accident because no other car had been involved. He took a number of photographs of the area which are now in evidence. He said that he put an Australian Rules football in the largest pothole to show the size of the pothole. He did not measure it. I think that it is fair to say that the photograph of the largest pothole with the football in it shows that the pothole is about the length of two to three footballs in diameter and at its deepest point is no more than half the height of a football lying flat. Mr Reynolds gave evidence that the potholes were filled with hot-mix well over a fortnight after the accident.
Rodney Style ("Mr Style") is an automotive engineering consultant and has been investigating car crashes since 1975. His qualifications include mechanical trade qualifications and teaching qualifications and he has investigated serious accidents at race tracks since 1990. He participated in work experience at the Main Roads Department of Western Australia ("Main Roads") which included a three day course on road design and road repair. He has also participated in crash testing and computer modelling to reconstruct a crash from the end result.
On 13 November 1997 Mr Style received a request from the plaintiff's solicitors to check the Holden and the accident scene for factors that would have contributed to the accident. He was given a sketch and a statement setting out how the accident was said to have happened which included a reference to the Holden fishtailing after it had hit a pothole, a letter from the police and various photographs including photographs of the four potholes (the group of three plus the one nearby) taken by Mr Reynolds.
Mr Style first inspected the Holden and then the accident scene. The Holden was built in July 1978 and had an odometer reading of 219,539 kilometres. The plaintiff had owned it since August 1996. Mr Style reported on 14 November 1997 that the Holden was generally in a roadworthy condition and would have been able to negotiate the road in question under normal circumstances. He also reported that his inspection of the Holden showed an impact damage on the right hand front wheel rim. He took two photographs of this damage. He gave evidence that it may have been caused by the pothole. One of the photographs of the right front wheel shows a relatively small indentation on the outer rim. The other photograph was taken to show damage to the inner edge of the rim but it does not do so. Mr Style said that the damage on the inner edge was hard to photograph. The rim shown in the photographs appeared to me to be old.
Mr Style said that part of the tread of the front left tyre was below 1.6 mm as recommended by the manufacturer and 1.5 mm as required by the Regulations. He got a lowest reading of 1.45 mm when he measured the tread on the tyre. The plaintiff later received an infringement notice for the tyre not having sufficient tread. Mr Style reported that the tyre was not bald and gave evidence that he did not believe that the tyre was a factor in the accident. He said that the tyre had sufficient tread on it to prevent aquaplaning if the road was damp and not significantly wet.
The left hand front headlight area was damaged. Mr Style said that this would have happened when the Holden hit the first tree. He said that the side impact with the second tree moved the "B" pillar, ie the pillar between the driver's side front door and rear door, over towards the centre line of the vehicle approximately one metre.
Mr Style gave evidence that based on his experience and the steel quality of the Holden the damage to the left front indicated an impact speed of 70 kilometres per hour with the first tree. He added that it could have been anywhere between 67 and 73 kilometres per hour. He said that the right hand pillar damage indicated a speed of 80 kilometres per hour with the second tree which was consistent with the fulcrum effect of the first tree swinging the Holden around.
Mr Style expressed the opinion that the plaintiff was going "around the corner although its fairly straight" and "applied some right steering lock". He then said: "Its reported they lost control of the car when they hit a pothole." He said this would put the vehicle into an oversteer condition. He then said that the driver reported "to be trying to stay on the bitumen road and went into what's called a 'fish-tail' " and then "going off the left side of the road to strike the first tree". He also said that he suspected that the Holden was not in contact with the ground for some period of time after it hit the first tree.

Mr Style stated in his report dated 14 November 1997 that the potholes, previous road repairs that have caused different road surfaces and broken road shoulders contributed to the accident.
Mr Style gave evidence that he thought that the Holden "would probably have been doing 60‑ish, 65, but I would thinking more of 60 kilometres per hour" when it was in the intersection near Bussell Road. He said that the road sloped down from the intersection and a car can accelerate down a hill even if the driver does not apply the accelerator. Mr Style stated in his report that the road declined approximately 15 degrees from the intersection to the de‑restriction signs and that the decline in the right hand sweeper bend from Nelson Street to Hackett Street was steeper. He gave evidence that he used a protractor and a bubble gauge to measure the slope of the road. He estimated the speed of the Holden near Bussell Road by using the distance between the largest pothole and the first tree which he said was 80 metres. He did not carry out any calculations to arrive at his estimate. He said that there was no indication of any braking or skid marks. He added that if the brakes were applied then the Holden would have gone straight and into the trees just beyond the middle of the fork of the intersection between Bussell Road and Hackett Street.
At the time of the accident the plaintiff was not wearing a seatbelt. Mr Style gave evidence that this would have been a neutral factor in relation to injury in the case of side impact.
When Mr Style inspected the accident scene on 13 November 1997 he observed some cars travel through the intersection. In my opinion nothing can be concluded from these observations because the road surface was not in the same condition as it was about six months earlier on the day of the accident. Even if the conditions were the same or similar the very small sample size would have significantly diminished the weight that could be properly attached to such observations.
Mr Style stated in his report dated 14 November 1997 that the largest pothole was about vehicle right hand side tyre width from the road edge in the normal vehicle driving position. He gave evidence that the line of travel of a car travelling west on Nelson Street, as the plaintiff was travelling on the day of the accident, put the right wheel through the left side of the largest pothole. He also said that the right wheel would actually hit one of the two smaller potholes in front of the largest pothole before it went into the left side of the largest pothole. In cross‑examination Mr Style gave evidence that he thought a driver approaching the potholes at a reasonable speed should see the potholes.
In cross‑examination Mr Style was asked whether he would expect a driver to brake to slow down to negotiate the area with the potholes and he replied: "No." When he was then asked: "Well what is the danger?" he referred to photographs showing loose gravel on the road surface and said that a driver could get into more difficulty braking on the gravel depending on how hard the brakes were applied. He added that if a driver backed off the accelerator just past the patched service trench and with gravel being on the road surface "they may get in difficulty. I don't know". He said that he would keep up power to maintain directional control. He also said that it did not appear unsafe to him to travel through the area of the potholes at about 60 kilometres per hour.
Mr Style expressed the opinion that the largest pothole had been repaired more than once because there was a different texture in a round patch bordering its top edge, ie the western edge or the edge closest to the Hackett Street side. He did not believe it was bitumen that had spilled over from the repair to the largest pothole after the accident. He said that the prior repair was actually a different aggregate. He gave evidence that from an examination of the various photographs including one taken by himself he is of the opinion that there were at least two attempts to repair the largest pothole before the accident. He indicated a triangular area to the top left of the largest pothole, ie closest to the Bussell Road/Hackett Street side, as the other area. He also said that the repair to the largest pothole after the accident was done using only a fatty bitumen seal. He agreed that he did not dig underneath this fatty seal to determine if any other substance was underneath the surface of the repair. Although he agreed that sometimes bitumen can seep to the surface depending on the type of bitumen mixes used he adhered to his opinion that there was no asphalt aggregate under the tacky fatty surface of the repair.
It seems that Mr Style was not surprised that potholes formed in this area. He thought that the density of the timber would make the area fairly wet. The area was poorly drained and the road was only a single coat seal. In addition to this there was turning traffic at the intersection which increases the risk of potholes developing. One of the difficulties in repairing potholes is that water gets in where the repair joins the road surface and it then undermines the repair. Mr Style agreed that the only way to repair potholes so that there was no joining edge between the surface of the repair and the road was to re‑seal the whole road.
Mr Cocks is a principal and chief scientist of Coffey and Partners He has a degree in engineering from the University of Western Australia and a Master of Science in Civil Engineering from Purdue University in the United States. He has practised as an engineer for about 30 years, 20 years of which was with Main Roads which in turn included time as a road construction engineer. He visited the scene of the accident at the request of the defendant's solicitors in October 1998.
Mr Cocks carried out various measurements using a surveyor's level to measure the level every ten metres over a total distance of 200 metres. He found that Nelson and Hackett Streets have a longitudinal grade of about 6 per cent to the east of the intersection and about 10 per cent to the west of the intersection. He explained that a slope of 10 per cent is a fall or rise depending on which way one is going of 1 metre in 10 metres. He said that from his observations in the field and the photographs and the state of cracking and stone plucking he estimated that the road was between 10 and 20 years old. He also said that it was a single bitumen sealed road.
Mr Cocks gave evidence that the road surface in question was susceptible to potholes because it was poorly drained. He said that the largest pothole might take a week to grow to the size shown in the photograph taken by Mr Reynolds. He said that this estimate was dependent upon their being "a lot of rain" and the amount and type of traffic. He indicated that most pothole repairs in intersections usually start to break down within a few years because there is a zone of weakness around the join of the re-mix and the existing road which allows water in and the process is repeated.
Mr Cocks explained the difficulty of being able to use hot-mix asphalt in country areas. It needs to be kept hot or warm and has a fixed life. He understood that the nearest supplier to the defendant was in Bunbury. He said that the only real alternative to hot-mix asphalt was "cold-mix" which is a pre‑mix of bitumen and aggregate of various sizes and sand. He said that it would be more common to use cold-mix in rural areas.
Mr Cocks gave evidence that a cutting oil such as kerosene or diesel was added to cold‑mix to make it soft. However, as the cutting oil progressively evaporates off the mix becomes harder and more difficult to place and compact. He said that it was difficult to make a cold-mix which was adequately workable on a cold morning but not too soft so that it would not deform under traffic on a hot summer's afternoon.
Mr Cocks gave evidence that based on the measurements he made at the scene the approach to the apex of the intersection had a radius of 80 metres. This, together with the superelevation for the area which he measured by survey cross‑section using a survey level, corresponded to a design road speed of 60 kilometres per hour. He said that he would expect a vehicle in good condition and all other things being equal to become unstable at 80 kilometres per hour. At speeds above 60 kilometres per hour and to 80 kilometres per hour the margin for safety would progressively diminish. There were many variables to consider including the driver's skill, the condition of the vehicle and the condition of the road.
When Mr Cocks was shown all of the photographs of the area taken by Mr Reynolds he said that he thought that you could drive around the curve at 60 kilometres per hour but "much beyond that it would become more likely that the vehicle would understeer or oversteer because of the loose gravel on the road surface". Mr Cocks said that the road surface in question would have behaved more like a gravel road than a bitumen road. He added that the sideways force co‑efficient would be less because of the gravel on the road surface. He said that the presence of gravel would have reduced the speed of 60 kilometres per hour to safely negotiate the curve by about 5 to 10 kilometres per hour. He made the same downward adjustment because of the presence of the potholes but added that the combination of the gravel and the potholes would still only require a reduction of 5 to 10 kilometres per hour.
When Mr Cocks gave evidence he was asked to comment on photographs of the potholes taken by Mr Reynolds and Mr Style. He was also asked to comment on some photographs taken by Mr Dobree, counsel for the plaintiff, on 9 November 1997. The photographs taken by counsel for the plaintiff were taken about six months after the accident and four days before those taken by Mr Style. The purpose for showing Mr Cocks all of these photographs was to obtain his opinion on whether or not the largest pothole had been repaired before the date of the accident or whether it had developed as a result of the breakdown of another pothole which had not been adequately repaired.
The defendant accepts that some potholes in the area in question had been repaired prior to the accident but it does not accept that any repair had been carried out prior to the accident to any of the four potholes on Nelson Street, ie the group of three and the one in front of the group to which I have earlier referred.
Mr Cocks stated in his report dated 12 October 1998 that based on photographs of the accident site supplied to him it appeared that the potholes in Nelson Street had not previously been repaired. I do not know what photographs he was referring to when he stated this in his report.
When Mr Cocks was shown the photographs taken by Mr Reynolds of the four potholes he said that he could not tell for certain whether they showed any evidence of repair prior to May 1997. He added that the shapes of the repairs appeared to indicate that they were separate potholes that had merged. When Mr Cocks was shown a better quality photograph of the group of three potholes taken by Mr Dobree he said that it looked to him as though the pothole at the top or to the west of the largest pothole was more like a separate pothole with the fringes touching the largest pothole rather than the largest pothole being initiated from a patch behind it which had been previously repaired.
One of the photographs of the potholes taken by counsel for the plaintiff on 9 November 1997 shows the largest pothole covered with a tacky bitumen substance with a depression in the middle. Mr Cocks gave evidence that it was impossible to tell from the photograph whether or not any aggregate had been used to repair the pothole. He said that the only way to say whether or not any aggregate had been used was to dig into the repair and check.
A photograph of the largest pothole taken by Mr Reynolds shows a darker basalt chip around the edge of the pothole. This can also be seen in the two smaller potholes in front of it. Mr Cocks gave evidence that this darker colour around the edge of the pothole was due to different rates of oxidisation and did not indicate that the pothole had been previously repaired.
During cross‑examination counsel for the plaintiff referred Mr Cocks to one of the photographs he (counsel) had taken showing a light grey triangular area to the top left of the largest pothole and asked what it was and Mr Cocks said that he could not tell whether it was the original seal or part of an older patch and that it was very difficult to work out what it was. He later said that it did suggest an earlier repair. In re‑examination he said that it was possible that there had been an earlier repair in this area but added that it appeared older than the black sticky patch and that he could not even be absolutely certain that it is a patch or whether it is just a textural difference in the seal. Mr Cocks' reference to a black sticky patch was a reference to the repair to the largest pothole that was done after the accident.
I think that it is important to bear in mind that the photographs taken by counsel for the plaintiff were taken about six months after the accident. The photographs taken by Mr Reynolds the day after the accident do not show the surface of the road around the largest pothole in much detail and this triangular area in the photograph taken by counsel for the plaintiff is not apparent in the photographs taken by Mr Reynolds. Mr Cocks also indicated when queried by me that this triangular area may be the original road surface with some of the bitumen from the repair in the largest pothole smeared over it as a result of car tyres carrying the bitumen forward when they went over the repair. In the final analysis Mr Cocks could not say with any certainty what this triangular area consisted of.
Mr Cocks set out the following in his report dated 12 October 1998:
"4.8 Manner and Cause of the Road Crash
With due allowance for the effects of wet weather, a rough road surface (with potholes) and loose gravel on the surface, it is our opinion that a loss of control and crash of the severity which occurred, would have required the vehicle to be travelling at more than the 'safe speed' of 60km/hr applicable to this curve. In this regard, it is relevant to note that the vehicle would have just left a zone where the legal speed limit was 60km/hr.
It is probable that the vehicle entered the curve at a speed significantly in excess of the 'safe' speed of 60km/hr. Some loss of side friction would have occurred when the vehicle wheel(s) struck the pothole. A further loss of control may have occurred when the vehicle encountered the loose gravel on the road surface on the outside of the curve through the intersection. The absence of adequate tread on the tyres (as evidenced by the infringement notice issued by Police) would have contributed to this loss of control. The left side of the vehicle subsequently struck a tree, causing the vehicle to rotate. The right side of the vehicle then struck a second tree."
Mr Cocks set out the following in his report dated 7 February 2000:
"a.Site Geometry
In his report on the crash site, Mr Styles (sic) states that the road approaching the crash site has a grade of 15 degrees. This is incorrect. The slope measured by survey was about 10% (6 degrees).
b.Vehicle Speed
In his report on the crash site, Mr Styles (sic) refers to observations of the speed of vehicles. He does not say whether vehicle speeds were measured or were simply visual estimates. He refers to vehicles accelerating after the curve to reach speeds of in excess of 70km/hr on the downslope to the crash site.
Based on vehicle damage, Mr Styles (sic) estimates the vehicle speed, at the time of first impact, was about 70km/hr. The first impact tree is about 80m from the pothole where the loss of control is alleged to have occurred. Unless the plaintiff accelerated after hitting the pothole, then it is probable that the vehicle speed was at least 70km/hr and probably more, on the curve preceding the crash.
It remains my opinion that it is probable that the vehicle entered the curve at a speed significantly in excess of the safe speed."
I should clarify what Mr Cocks stated in his report dated 7 February 2000 under the heading "Site Geometry". It seems to me that he has understood Mr Style's measurement of 15 degrees approaching the crash site as a measurement from the intersection to where the Holden crashed or collided with the two trees. Mr Style's measurement of 15 degrees was a measurement of the slope in the road from the speed de‑restriction signs to the intersection, ie to the east of the intersection, and Mr Cocks' measurement for that section was 6 per cent and not 10 per cent.
Bruce Lorimer ("Mr Lorimer") is the engineer of the defendant shire. He gave evidence that the defendant does not have a crew constantly working on road repairs. He said that they try to avoid repairing potholes when it has been raining and when the road surface is wet because the material used to fill the potholes binds better when the surface is dry. He said that the defendant would love to have a bitumen heater but it does not have one because it would be expensive to purchase and operate. He said that a bitumen heater would cost $100,000 to $200,000. The defendant does not even have a heated bin in its depot because of the cost.
Mr Lorimer gave evidence that there is 814 kilometres of road in the defendant shire of which 190 kilometres is sealed and 624 kilometres is unsealed. The defendant shire had carried out an audit on the condition of roads within its boundaries before the accident. He said that the replacement value of the roads in the defendant shire was $65,000,000. He said that it is good practice to allocate 10 per cent of the value of the road network to road maintenance but in the 1996/1997 financial year the defendant was only able to allocate $350,000 for the maintenance of its entire road network. He said that there were many intersections like Nelson/Hackett/Bussell/Streets/Road in the shire and added that there were many straight sections of road that also needed to be maintained. He also said that because of the need to spend money on economic development and community services such as a libraries and recreation it was getting harder and harder to maintain an aging road network.
Mr Lorimer said that there was not a significant number of potholes at the intersection and that their size was relatively insignificant relative to others in the entire road network.
Ranald Stewart ("Mr Stewart") lives just off Nelson Street in Bridgetown and his back gate is just off Nelson Street a short distance west of the de‑restriction signs. I have already mentioned that in May 1997 he was the Deputy Chief Executive Officer of the defendant shire. He had worked for the defendant for 35 years. In 1997 he was the manager for Works and Services and held this position for about five years. He said that at the time of the accident the defendant had a maintenance truck set up to do road patching jobs. There was a supervisor and 14 other employees assigned to do maintenance.
Mr Stewart said that he cannot recall receiving any complaint about the intersection before the accident. He said that he received a report of the accident on the morning it happened. He waited for a fog to lift and then attended the accident scene.
Mr Stewart gave evidence that a traffic count carried out at about the time of the accident showed that about 440 vehicles per day travelled on Nelson Street just opposite his back gate which, as I have previously indicated, is a short distance west of the de‑restriction signs.
Mr Stewart also gave evidence that there were two ways to repair potholes. One was to use a cold bitumen mix and the other was to use pre‑mix asphalt. He said that at the time of the accident the defendant did not have a bitumen heater and that there were only two in Western Australia.

When Mr Stewart checked the potholes on the morning of the accident he assessed them as amounting to an inconvenience and said they were not dangerous and that a normal car wheel could have gone straight through them without much discomfort. He thought that the potholes on the day of the accident may not have been as deep as shown in the photographs taken by Mr Reynolds and said that the depth of potholes can change very rapidly with rain. Mr Stewart also gave evidence that a road audit was conducted by the defendant shire in 1996 which included Nelson Street, Bussell Road and Hackett Street.
Mr Stewart gave evidence that in relation to the 440 cars per day that used Nelson Street near the intersection almost 100 per cent were driven by local people. He said that about 80 per cent returned home using the same route. He agreed that the potholes were probably patched about two weeks after the accident. He said that the short delay was because the police wanted to preserve the scene while they did their investigation.
Mr Stewart said that the community in a small shire of which the defendant shire is one did not sit back and not complain about things, eg potholes. He said that the potholes shown in the photographs taken by Mr Reynolds were not deep enough to be as old as Christmas 1996/early 1997. He described the smaller potholes in the photographs as being very shallow.
Stephen Clegg ("Constable Clegg") is a police officer. He has spent 4‑1/2 years doing traffic duties. He attended the accident scene from Hackett Street on the morning of the accident. He said it was overcast with sporadic rain. He also said it was drizzling and the road was wet. He inspected the road surface and did not see any skid marks. He said that wheel marks led to the tree on the side of the road. He did not think that the Holden went off the road at a steep angle. He walked back up Hackett Street to the intersection. He noticed gravel on the road. He added that he did not see anything that he thought could have caused the Holden to go off the road. He noticed that the front left hand tyre of the Holden was down on tread and that it was different to the other tyres. He expressed the opinion that the road was wet enough to make it necessary to adjust speed. He said that there had been intermittent rain in the area.
Darryl Miller ("Sergeant Miller") is a police officer. He attended the scene of the accident in a different car and from a different direction to Constable Clegg. He travelled west on Nelson Street to the scene of the accident. He said that it was raining when they were at the scene and that the road was wet. He did not notice any potholes as he drove through the intersection to where the Holden was positioned against a tree. He said that there were some marks still visible on the bitumen which indicated that the Holden "appeared to go in a straight line from the edge of the road from about - my recollection is from the middle part of the slight bend it has gone off on the left hand side." He said that the tyre marks indicated that the vehicle had gone sideways in a slide of some sort.
Mr Janes is an orthopaedic consultant. In a report dated 9 November 1999 he stated that the plaintiff was admitted to Royal Perth Hospital on 5 May 1997. The injuries noted at that time were a fracture of the neck of the right humerus, a fractured pelvis, a fracture of the shoulder and liver haematoma.
The plaintiff was taken to theatre on 6 May 1997 and a plate was used to fix her fractured humerus. After the accident and the surgery the plaintiff complained of numbness and tingling in the distribution of the ulnar nerve. On 11 June 1999 Mr Janes removed the plate and also carried out an ulnar nerve transportation which involved shifting the ulnar nerve from the front to the back of the elbow.
Mr Janes said that the ulnar nerve was not damaged. He said that he could not say that the plaintiff's ulnar nerve problem was caused by the accident.
Mr Janes gave evidence that the first time the plaintiff complained to him of symptoms consistent with a carpal tunnel problem in her right hand was on 5 July 2000. He said that this was a long time after the accident and that he could not say that it was due to the accident. He said that very often people who get one entrapment often get other entrapments as well and that the plaintiff may be the sort of person who gets entrapment neuropathies.
Mr Janes said that he would be surprised if the plaintiff could not lift a two litre container of milk. He said that her fracture had fully healed. He also said that he would not expect her to have any difficulty using a knife to cut vegetables. He gave evidence that the plaintiff may have difficulty holding a pen but if so it would be related to her carpal tunnel problem and not her accident related injuries that he had spoken about.

Findings

I did not find the plaintiff to be a convincing witness when she gave evidence about the accident and I do not accept her account of the circumstances leading up to the Holden colliding with the two trees just off the left verge of Hackett Street when she was travelling west away from Bridgetown. I consider that she was prone to exaggerate, invent and engage in reconstruction to remove all responsibility from herself for the accident.
When she gave evidence about which pothole she drove into she was initially careless with the truth. Her initial responses created the clear impression that she had some recollection of driving into the pothole photographed by Mr Reynolds with the football in it but later it became clear that she did not actually recall seeing any of the potholes as she approached the intersection and she did not recall what pothole she drove into.
In my opinion the plaintiff sought to create the false impression that she came upon the patched service trench and the potholes without any prior appreciation or warning of their presence.
On balance I accept the evidence of Ms Knowles that the potholes had been there since about Christmas 1996 despite the evidence of Mr Stewart to the contrary. Given the relative location of their respective properties with the intersection and the potholes and Bridgetown I think it likely that Ms Knowles would have passed through the intersection more often than Mr Stewart. However in light of the evidence of potholes getting bigger as a result of traffic and rain I consider it fair to conclude that the potholes would have been smaller at Christmas 1996 than they were at the time of the accident. It seems from the photographs that the patched service trench near the de‑restriction signs had likely been there for a relatively long time.
The plaintiff had driven west on Nelson Street and through the intersection as recent as a week or so before the accident. She had passed through the area on other occasions. I have no doubt that before the accident she was well aware of the presence of the patched service trench and the potholes. Further and in any event I find that if the plaintiff was keeping a proper lookout as she approached the intersection she would have had no difficulty in seeing the patched service trench and the potholes.
Having examined the photograph of the patched service trench taken by Mr Reynolds the day after the accident I consider it most unlikely that the height difference between the surface of the patched service trench and the road was enough to cause a thump as described by the plaintiff when the Holden passed over it.
Both of the opinions of Mr Style and Mr Cocks on what caused or contributed to the accident incorporate an acceptance by them of information they were both given that the plaintiff drove into a pothole. Neither of them questioned whether or not that was factually correct. Given the briefs that each of them were given no criticism can be made of either of them for that. However it is a factual issue that I must consider. I am not satisfied that the plaintiff did drive through a pothole.
In par 9 of the plaintiff's re‑amended statement of claim she has alleged that she drove through a number of potholes and impacted in particular with a large pothole. The plaintiff's case was presented on the basis that she drove through the largest of the group of three potholes. In the final analysis she does not know what pothole she drove through. She has not satisfied me that she drove through any pothole whether it be the largest pothole or any other. Further to and consistent with this view I note that the evidence of Ms Knowles and Mr Style is that if a driver travelling west on Nelson Street drove into the largest pothole then he or she would first drive through one of the smaller potholes in front of it. The photographs of the potholes support this evidence. Although the plaintiff has pleaded that she drove through a number of potholes she gave evidence of only one thump. She said nothing consistent with two impacts.
I am not satisfied that the plaintiff suffered any wrist injury or any other injury which could be attributed to any jarring felt through the steering wheel of the Holden consistent with driving through a pothole. I should add that I have not used this finding to reach any conclusion adverse to the plaintiff. While a wrist injury may occur as a result of jarring it is not necessarily the case that one will always result. Therefore it would be wrong to use this factor against the plaintiff. It is the type of factor which if present would weigh in favour of the plaintiff and I simply wish to note its absence.
I find that the road was wet at the time of the accident. It had rained the night before the accident, the area was well wooded, it was still relatively early in the morning, the area was not well drained and there was a misty drizzle at the time of the accident. While I find that the road was wet I also find that it was not wet with water running over it. Mr Cocks' expertise did not allow him to comment on the lack of tread on the front left tyre in the context of aquaplaning. I accept the evidence of Mr Style that the combination of the amount of water on the road and the amount of tread on the tyres of the Holden and in particular the front left tyre would not have made the Holden susceptible to aquaplaning.
However, the issue of aquaplaning is a separate issue to there having been loose gravel on the road and the significance of loose gravel by itself and in combination with the dampness of the road. I think it also needs to be borne in mind that no one factor should be considered in isolation. It is necessary to have regard to the combination of all of the circumstances.
I do not accept the evidence of Mr Style that the fact that the road was wet is irrelevant. Mr Cocks attaches some weight to the road being wet but only a relatively minor amount in all of the circumstances. I prefer the evidence of Mr Cocks in this regard. I do not think that the road conditions would have materially changed between the time of the accident and when Constable Clegg arrived at the scene. I accept his evidence that the road was wet enough to require some adjustment of speed.
I accept the evidence of Mr Cocks and find that the dampness of the road reduced the skid resistance but that in the circumstances of this case it was less significant than the loose gravel. I also accept the evidence of Mr Cocks and find that the inadequate tread on the front left tyre contributed to the plaintiff losing control of the Holden but add that it was a relatively minor factor in all of the circumstances.
This is not a case where the factual circumstances do not provide any other probable explanation to the one advanced by the plaintiff for the Holden going into a slide before leaving the roadway and colliding with the two trees. In this case I regard a probable explanation to be the combination of excessive speed, curvature of the roadway, loose gravel on the road surface and the dampness of the road surface.
It follows from what I have already set out that I do not accept the plaintiff's evidence that she was driving at 50 to 55 kilometres per hour when she passed the de‑restriction signs and also when she entered the intersection.
One area of expertise that Mr Style has which Mr Cocks does not have is the assessment of the speed of a car by the resultant damage to it. I accept the evidence of Mr Style that the Holden was travelling at 70 kilometres per hour, being the middle of a range of 67 to 73 kilometres per hour, when it hit the first tree. Mr Style said that the Holden would have been travelling at a speed less than this when it was in the intersection, namely 60 to 65 kilometres per hour having regard to the extent of the decline and the distance from the largest pothole to the first tree.
I prefer and accept the evidence of Mr Cocks to that of Mr Style on the slope or grade of the roadway on both sides of the intersection. Mr Cocks was more qualified and experienced in this area than Mr Style. Further and importantly I am of the opinion that the method and means used by Mr Cocks to measure the slope of the roadway produced a more accurate result.
Both Mr Cocks and Mr Style agree that the slope on the western side of the intersection was steeper than the slope on the eastern side. Mr Cocks measured the slope on the eastern side at 6 per cent and the slope on the western side at 10 per cent. A 10 per cent slope is steeper than a 6 per cent slope. Mr Style measured the slope on the eastern side at 15 degrees. He did not measure the slope on the western side. Mr Cocks set out in his report dated 7 February 2000 that a 10 per cent slope is 6 degrees. I have no hesitation in accepting that. Obviously a 6 per cent slope is therefore less than 6 degrees and probably in the order of 4 degrees to the nearest whole number.
A point arising from all of this is that Mr Style believed the slope on the eastern side to be steeper than it actually was. Even though Mr Style did not measure the slope on the western side it follows from his own evidence that he thought it was more than 15 degrees. He was wrong about that because accepting the evidence of Mr Cocks it was only 6 degrees. I repeat that Mr Style did not measure the slope on the western side of the intersection. In my view all of this seriously undermines the evidence of Mr Style that the Holden increased its speed after it travelled through the intersection because he based this conclusion on the extent of the decline in the road beyond the intersection.
I reject the evidence of Mr Style that the Holden was travelling slower when it passed through the intersection than it was when it collided with the first tree. The plaintiff did not suggest that she applied the accelerator after she lost control of the Holden and in any event I am not satisfied that she did. I prefer and accept the evidence of Mr Cocks that if the speed at the point of the collision between the Holden and the first tree was 70 kilometres per hour then its speed was at least 70 kilometres per hour and probably more on the curve of the intersection before the accident.
The speed limit for the area in question was 60 kilometres per hour. I accept the evidence of Mr Cocks that having regard to the road design and the potholes, the curve from Nelson Street into Hackett Street could be negotiated safely at between 50 and 60 kilometres per hour. I also accept his evidence that a safe speed having regard to the road design and the loose gravel on the road surface would be in the range of 50 to 60 kilometres per hour and that a safe speed having regard to the road design and the combination of the potholes and the loose gravel would also be in the range of 50 to 60 kilometres per hour.
Paragraph 10 of the plaintiff's re‑amended statement of claim provides that after impacting with the large pothole the plaintiff's difficulty in controlling the Holden was compounded by the uneven and roughly patched road surface and edges. I have already noted that Mr Style in his report dated 14 November 1997 concluded that previous road repairs that caused different road surfaces and broken road shoulders contributed to the accident. It seems to me that there is a distinction between "uneven and roughly patched road surfaces" as pleaded and "different road surfaces" as provided in the conclusion set out in Mr Style's report. In this case it is a distinction without any significance because there is simply no primary evidence be it oral or documentary of either one. The photographs in evidence do not show that any uneven and/or rough patches would have been on the road surface at the time of the accident. Indeed the photographs taken by all of Mr Reynolds, Mr Dobree and Mr Style all support the view that the repairs to potholes or cracks in the road surface that would have been present at the time of the accident were all in a good state of repair, albeit it perhaps of a different texture to the road surface, and were flush with the road surface.
For the purpose of completeness I wish to deal with the scenario, which I do not accept, that the plaintiff did drive through the largest pothole. Even if that was the case then my view of the matter would be that she probably would not have lost control of the vehicle if she was travelling at the speed limit of 60 kilometres per hour or any lesser speed even taking into account the curvature of the road, the loose gravel and the dampness of the road surface. In my opinion she probably would have lost control of the Holden given her excessive speed in all of the circumstances to which I have already referred regardless as to whether or not she drove through the largest pothole.
I should add at this point that my opinion of the largest pothole based on the best evidence before me, namely the photograph taken of it by Mr Reynolds showing the football positioned on its side in the middle of it, is that the pothole was only a few inches deep at its deepest point and so relatively shallow and not likely to cause a danger having regard to all of the other circumstances to which I have already referred to a person driving within the speed limit for the area of 60 kilometres per hour.
In my opinion the witness in the best position to give evidence on this point was Mr Stewart and I note that his view is consistent with mine. I do not accept the opinion of Mr Style on this point. Further, in my opinion Mr Style's evidence that the two indentations on the front right wheel rim could have been caused by the large pothole was highly speculative particularly given the age of the Holden.
I now turn to the issue of pothole repairs prior to the accident. I have already mentioned that the defendant accepts that some potholes had been repaired in this section of road before the accident but that no repairs were carried out to any of the four potholes including the largest pothole specifically referred to in the evidence. Notwithstanding the particulars of negligence and statutory duty in par 12 of the plaintiff's re‑amended statement of claim concerning repairs, during the hearing the only pothole that the plaintiff alleged had been inadequately repaired prior to the accident was the largest pothole.
In relation to the evidence concerning road design and road maintenance including repairs I have no hesitation in preferring and accepting the evidence of Mr Cocks to that of Mr Style given his superior qualifications and experience in these areas. I do not accept the evidence of Mr Style that at least two attempts had been made to repair the largest pothole before the accident. After examining all of the photographs Mr Cocks stated clearly that the largest pothole and the patch immediately above it were two separate potholes.
Mr Cocks was not able to decide what the triangular area to the top left of the largest pothole was. My assessment of his evidence is that he could not say that it was more probable than not that it was an old repair which had broken down and led to the development of the largest pothole. I am far from satisfied that this grey coloured triangular area referred to by counsel for the plaintiff is an area of the road surface which had been repaired prior to the accident or that it is a prior repair which has broken down and caused the creation of the largest pothole.

All of my reasons to this point justify an order that the plaintiff's action be dismissed.

The defendant acting as a highway authority

In my opinion the defendant was at all times acting as a highway authority in respect of maintenance of roads within its boundaries including the intersection and the approaches to it and was therefore only liable for misfeasance. While the defendant did exercise its powers in respect of maintenance of roads within its boundaries by repairing some potholes and cracks in or about the intersection prior to the accident on 5 May 1997 the mere fact that the defendant exercised this power in the past to repair the roadway does not create a duty to undertake further repairs occasioned by wear and tear. See Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357. A highway authority will not be liable for any neglect on its part to construct, repair or maintain a road or other highway or for a failure to exercise care, control and management in respect of known dangers. See Buckle v Bayswater Road Board (1936) 57 CLR 259 and Gorringe v The Transport Commission (Tas) (supra).
In Buckle v Bayswater Road Board (supra) at 281 and 282 Dixon J as he then was said:
"It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinct from a discretionary, duty of repair and to confer a correlative private right (cf City of Vancouver v McPhalen (1911) 45 SCR (Can) 194).
No civil liability arises from the incorporated character of the road authority, or from the fact that it is expressly made liable to be sued (Gibson v Mayor of Preston (1870) LR 5 QB 218). Nor is its responsibility affected by statutory provisions vesting the soil of the highway in it, or placing the highway under its management and control (Cowley v Newmarket Local Board [1892] AC 345; Municipal Council of Sydney v Bourke [1895] AC 433).
The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility. It must decide upon what roadway it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise an other power belonging to it as a highway authority."
In Gorringe v The Transport Commission (Tas) at 363 and 364 Latham CJ said:
"In the second place, the plaintiff contended that in the present case there was a misfeasance because the Commission did not simply leave the road alone; it did repair the surface of the road, and it is contended that there was negligence in the repairs so effected. In East Suffolk Rivers Catchment Board v Kent ([1941] AC 74, 102) Lord Romer stated the law in the following manner: 'Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing.' Thus the Commission was not bound to repair the road, but if it did repair the road it was under a duty to repair it without negligence. If the Commission repaired the road negligently in such a way as to create a danger or to add to danger and damage was thereby caused to persons lawfully using the highway the Commission became liable for that damage.
In the Supreme Court and in this Court it was argued that the dip in the road demonstrated the need for radical repair of the culvert and that the Commission only made superficial repairs on the road surface from time to time. This course of action, it was said, was more than nonfeasance and amounted to misfeasance. But the very statement of the argument shows that such a complaint is a complaint that the Commission failed to exercise in full measure the power to repair the road which it possessed. Such a failure is only nonfeasance."
The nonfeasance/misfeasance doctrine continues to be applied in Australia in respect of highway authorities. See McDonogh v Commonwealth (1987) 73 ALR 148; Hill v Commissioner of Main Roads (1989) A Tort Rep 80-260 per Samuels JA (with whom Kirby P and Priestley JA agreed) at 68,785; Singleton Shire Council v Brodie [1999] NSWCA 37; City of Melbourne v Barnett [1999] 2 VR 726. Singleton Shire Council v Brodie (supra) is the subject of an appeal in the High Court of Australia. As I understand it the High Court heard an application for special leave as if on appeal on 30 and 31 August 2000. I would further delay my decision in this case if I thought it turned on whatever approach is taken by the High Court in Brodie v Singleton Shire Council. However, given my view of the facts in this case I do not think that the plaintiff will be prejudiced if I comment on and apply the law as it currently stands on the nonfeasance/misfeasance doctrine to the facts of this case.
The combination of the evidence of Mr Robinson, Mr Lorimer and Mr Stewart on the extent of the road network within the defendant shire, what length is sealed and what length is unsealed, the amount of funds required to maintain the road network within the shire and the amount actually allocated to do so and the need for the defendant shire to allocate its resources to meet the needs of a variety of purposes is a reflection of the reasoning why highway authorities have been granted an immunity from liability in negligence or nuisance for nonfeasance.
So far as the plaintiff alleges that the defendant is liable for failing to repair or maintain the road at and about the intersection where the plaintiff's accident occurred the plaintiff cannot succeed because of the immunity afforded to the defendant shire as a highway authority. For the plaintiff to succeed she must establish misfeasance, namely, that the defendant created or added to an unnecessary danger in the highway.
The particulars of negligence and breaches of statutory duty pleaded in par 12(iii)(a) to par 12(iii)(c) inclusive of the plaintiff's re‑amended statement of claim prefaced with the allegation that the defendant carried out periodical repairs to the road surface which were inadequate are allegations of misfeasance. I repeat my findings and in particular my finding that I am not satisfied that the largest pothole was repaired before the accident. Further, I am not satisfied that the largest pothole was the product of the repair of some other pothole breaking down before the accident. Therefore I am not satisfied of any misfeasance by the defendant shire. Further it should be noted that the plaintiff did not adduce any evidence to support her pleading of the use of poor quality materials, insufficient skill and short term repairs being left in situ for too long. The particular in par 12(iii)(d) that the defendant failed to monitor repairs and renew them when they deteriorated is an allegation of nonfeasance. The particular in par 12(iii)(e) that the repairs were in the nature of patch and repatch and therefore liable to faster deterioration than would have been the case had the whole road been resurfaced is an allegation of nonfeasance. The defendant shire was under no obligation to resurface the road.
By par 2 and par 12 of the plaintiff's re‑amended statement of claim she alleges that the defendant breached its duty under the Local Government Act 1960 as amended. Relevant parts of that Act were amended before the accident and the relevant legislation is the Local Government Act 1995 which I have already referred to as the 1995 Act. I will treat the references in the plaintiff's re‑amended statement of claim to the Local Government Act 1960 as amended as a reference to the 1995 Act. By par 3 of the plaintiff's re‑amended statement of claim she alleges that by virtue of the 1995 Act the defendant shire has responsibility for the care, control and management of certain roads within its district and specifically is responsible for the care, control and management of Nelson and Hackett Streets, Bridgetown.
Counsel for the plaintiff has argued that the provisions of the 1995 Act have significantly changed the position from what it was under the Local Government Act 1960 as amended such that the 1995 Act no longer permits local authorities to rely on the long standing immunity of highway authorities.
The defendant's authority in respect of roads under the Local Government Act 1960 as amended was contained in s 300 which provided as follows:
"300. A council has the care, control and management of public places, streets, ways, bridges, culverts, fords, ferries, jetties, drains and, subject to the Rights in Water and Irrigation Act 1914, the Water Boards Act 1904 and any direction in writing of the Minister for Works, watercourses, which are within the district, or, which although not within the district, are by this Act placed under the care, control, and management, of the council, or are to be regarded as being within the district, except where and to the extent that under an Act, another authority has that care, control, and management."
The defendant's authority in respect of roads under the 1995 Act is contained in s 3.53 which provides as follows:
"3.53 (1)   In this section ‑
"former section 300" means section 300 of the Local Government Act 1960 as in force before the commencement of this Act;
"otherwise unvested facility" means a thoroughfare, bridge, jetty, drain, or watercourse belonging to the Crown, the responsibility for controlling or managing which is not vested in any person other than under this section.
(2)       A local government is responsible for controlling and managing every otherwise unvested facility within its district unless subsection (5) states that this section does not apply.
(3)       If the facility is partially within each of 2 or more districts, it is to be controlled and managed as the local governments for the districts concerned agree or, if they do not agree, as the Minister directs.
(4)       An agreement or direction under subsection (3) has effect according to its terms.
(5)       This section does not apply if any person was, immediately before the commencement of this Act, responsible for controlling or managing the facility unless ‑
(a)the responsibility arose under the former section 300; or
(b)the Governor, by order, declares that the facility is to be controlled and managed under this section."
Section 3.53(5) does not apply and therefore the defendant shire's power to control and manage roads within its boundaries is provided in s 3.53(2).
In my opinion for present purposes the position of the defendant shire in respect of controlling and managing its roads remains the same under the 1995 Act as it was under the Local Government Act 1960 as amended and the defendant shire is still entitled to rely on the long standing immunity of highway authorities.
Counsel for the plaintiff has also submitted that the defendant shire is an occupier as defined in s 2 of the Occupiers Liability Act 1985 and that the duty of care provisions in s 5 apply to the defendant in this case.
It is arguable that the plaintiff does not have a cause of action for breach of statutory duty under the Occupiers Liability Act 1985 because the defendant's liability does not arise by virtue of that Act or at common law but by virtue of the provisions of the 1995 Act. Whatever the position is on this point the Occupiers Liability Act 1985 does not create a new cause of action for breach of statutory duty. See Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139.
Further and in any event I refer to the following passage from the judgment of Dixon J as he then was in Gorringe v The Transport Commission (Tas) at 369:
"At common law highway authorities have never been subject to a private right of action for neglect to maintain or repair highways under their control notwithstanding the existence of a general duty to repair and maintain. They have been liable only for negligence in the course of the exercise of their powers or the performance of their duties with reference to the maintenance and reparation of highways. Statutes directing such authorities to maintain and repair roads, streets and bridges prima facie are not to be understood as conferring private rights of action in derogation from this principle. 'It must not be taken as settled law that a transfer to a public corporation of the obligation to repair does not of itself render such a corporation liable to an action in respect of mere non‑feasance. In order to establish such liability it must be shown that the legislature has used language indicating an intention that this liability shall be imposed' (Municipality of Pictou v Geldert (1893) AC 524 at p 527; see further Gibson v Mayor of Preston (1870) LR 5QB 218, per Hannen J at p 222; Maguire v Liverpool Corporation (1905) 1 KB 767, per Vaughan Williams LJ at pp 787, 788; per Romer LJ at pp 790, 791.)"
The Occupiers Liability Act 1985 was assented to on 28 October 1985 which is well after the long standing immunity of highway authorities had been established. There is nothing in the Occupiers Liability Act 1985 at all to suggest that the legislature intended it to impose a liability on highway authorities in respect of mere nonfeasance. The same can be said about the 1995 Act.

Conclusion

For all these reasons I think that the plaintiff's action should be dismissed. In the circumstances it is simply not necessary or possible to carry out any assessment of damages.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established