Kruse v Clare & Gilbert Valleys Council - [2018] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KRUSE v CLARE & GILBERT VALLEYS COUNCIL
[2018] SADC 78
Judgment of His Honour Judge Rice
20 July 2018
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
The plaintiff was driving a vehicle behind a large semi-trailer/tipper on an unsealed dirt road. Some dust was being kicked up by the truck. The defendant Council was undertaking grading operations along the same stretch of road. There was a single 'Grader Ahead' sign facing the truck driver behind which the plaintiff was driving. At the relevant time the grader was slowly grading towards the truck and plaintiff on its incorrect side of the road. At a point close to the position where the grader was operating, a large plume of dust was kicked up by the truck, leaving the plaintiff unable to see any of the road ahead or the grader. The plaintiff slowed down, partly by applying his brakes, and moved to his left. The plaintiff hit the tyre of the grader causing damage and injury.
Held:
1. The Council breached its duty of care to the plaintiff by failing to erect an adequate and repeated warning of the presence of the grader.
2. The plaintiff was guilty of contributory negligence by driving too fast and too close to the truck. The plaintiff failed to drive defensively or to the conditions.
3. Liability appointed equally.
4. Having regard to the agreed quantum and a reduction of 25% for the plaintiff's failure to wear a seat belt, there will be judgment for the plaintiff in the amount of $64,875.
Civil Liability Act 1936 s 31 and s 32; Road Traffic Act 1961, referred to.
Wyong Shire Council v Shirt (1980) 146 CLR 40; Wagon Mound (No 2) (1967) 1 AC 617; Cocks v Sheppard (1979) 53 ALJR 591; Kambouridis v Heyn and Trans Adelaide (2000) SASC 261; Grantham v State of South Australia and Anor (1975) 12 SASR 74; Eicas v Dawson (2016) SASCFC 124; Stoeckl v Harpas (1971) 1 SASR 172; Walton v Rowbottom 2 1986; Banovic v Perkovic (1982) 30 SASR 34; McIntyre v Ridley District Council (1991) 56 SASR 343, considered.

KRUSE v CLARE & GILBERT VALLEYS COUNCIL
[2018] SADC 78
Introduction

This is the trial of an action in negligence by Mr Kruse, the plaintiff, against the Clare and Gilbert Valley Council, the second defendant. Although the plaintiff originally joined Mr Friebel, as the first defendant, that was not pursued.
The issue relates to liability for a collision between a four-wheel drive Holden Rodeo twin-cab being driven by Mr Kruse and a grader being driven by Mr Friebel, an employee of the defendant Council.
As noted, the trial relates only to liability. Quantum has been agreed in the sum of $173,000. The collision occurred on Tuesday 1 March 2011 on an unsealed dirt road referred to as Main Road 45 between the towns of Marrabel and Waterloo in the lower mid-north of South Australia, about 130 kilometres north of Adelaide.
Summary of the facts
I commence by a consideration of the facts in an unvarnished form. Later in these reasons I will consider the contentious areas of evidence and make the necessary findings.
As noted, Main Road 45 is an unsealed dirt road that runs generally north-south. The collision occurred a short distance north of Steelton Road, being a road that crosses Main Road 45 at right angles. There were ‘give way’ signs for traffic approaching Main Road 45 along Steelton Road. The plaintiff, Mr Kruse, was driving his Holden Rodeo north along Main Road 45. Mr Kruse was travelling behind a prime-mover and semi-trailer (that is, one unit) as it travelled north along Main Road 45 towards Steelton Road. The speed limit was 100kph along that road.
Mr Friebel, the grader driver, was working north of Steelton Road, travelling south at a low speed towards Steelton Road.
Mr Friebel was working on his right-hand-side of the road; in effect, the semi-trailer with the plaintiff driving behind were moving towards Mr Friebel and they were all on the same or western side of the road.
The collision occurred just before midday, the weather was fine, and the road was dry and dusty. There were light winds at times. Mr Friebel was working slowly and was causing little dust to be ‘kicked-up’.
Just before the semi-trailer travelling ahead of the plaintiff passed through the Steelton Road intersection, it caused a cloud of dust to rise up around and behind it. The semi-trailer driver had a clear view of the grader and continued north without incident.
Mr Kruse found himself in a cloud of dust and slowed down. Mr Friebel was enveloped in dust (from the passing truck) and also slowed down, being almost stationery at the time of the collision. Mr Kruse collided at a low speed with the front near side (front left) wheel of the grader, that is, with that wheel closest to the centre of the road. He did not see the grader until just before the collision. Prior to and at the time of the collision the grader was occupying a portion of the left-hand side of the road over which Mr Kruse was due to travel, that is, it was working on Mr Kruse’s side of the road.
Mr Kruse was injured but, as noted, the contest is as to liability. It is agreed Mr Kruse’s quantum of damages must be reduced by 25% because he cannot establish he was wearing a seatbelt at the time. It is also noted that on 23 March 2017, by consent, the court ordered judgment against the plaintiff in favour of the first defendant Mr Friebel.
For vehicles travelling north along Main Road 45, as were the semi-trailer and Mr Kruse, there was a single sign indicating the presence of a grader; that sign had the two words in bold, black lettering ‘Grader Ahead’ against a yellow background. There was no other sign at that point. Although the positioning of the sign for vehicles travelling north was south of the Steelton Road intersection, its precise location and even its presence, was the subject of dispute.
Estimates varied as to how far north of the Steelton Road crossing the collision occurred, but it was of the order of 200 metres. The collision scene was not the subject of a proper plan and measurements.
The plaintiff relied upon authorities relating to the high level of care imposed on someone who chooses to operate a large, unwieldy, slow-moving, difficult-to-manoeuvre vehicle, particularly on the wrong side of the road, in circumstances where a reasonable person would have anticipated that there could be a problem with visibility.[1] Further, the plaintiff’s case is that he was not travelling too fast or too close to the semi-trailer, there was insufficient or no signage and that the Council should have employed water trucks to quell the dust. The plaintiff alleges it was the overall grading operation that was negligently undertaken. It was not suggested that the movement of the grader at low speed caused much dust to rise, but rather the grading operation along that portion of the road, particularly at the Steelton Road crossing, causing dirt and dust to be loosened and liable to rise with traffic movement or wind or both.
[1] T3.
Part of the defendant Council’s case was that the plaintiff, Mr Kruse, was travelling too fast and too close to the semi-trailer while travelling along an unsealed dusty dirt road and that there was no practise whereby a water truck would be used to keep the dust down. Further, the Council maintained that the signage was adequate in the circumstances.
Witnesses
The following witnesses were called for the plaintiff: the plaintiff himself, Mr Kruse and Mrs Kruse, the mother of the plaintiff.
The defendant Council called Messrs. Miller, Hean, Smith and Durkay, employees of the Council; Mr Friedel, the grader operator and Mr Avery, an employee of the Mid-Murray Council in Mannum.
Evidence from the plaintiff
The plaintiff is the director and manager of a trucking an earthmoving business name Kruse Quarries Pty Ltd. On this day he had arranged for one of his semi-trailer drivers to pick up a load of lime from Adelaide. The truck was owned by the business. The driver was Mr Busch and the plaintiff planned to meet him at a property about 8kms north beyond the scene of the collision. As the driver of the semi-trailer said later in evidence, the truck had 22 wheels and a total mass of about 45 tonne on that day. It was what he referred to as a ‘semi‑tipper’, the driver is unable to see over it and must rely on external side mirrors to see behind.[2]
[2] T381, T388.
Upon leaving Marrabel and travelling north the plaintiff said that initially the road was bitumen but it became an unsealed dirt road about 1.5‑2.00 kilometres before the scene of the collision.[3]
[3] T20.
The plaintiff said he could see his truck ahead and it was causing only very minimal dust at that time. He said he was slowly catching up to him. He said that he caught up to the truck just before the intersection with Steelton Road. He said that at that point ‘…the cloud of dust appeared out of nowhere’.[4] The plaintiff said he had been travelling at 100 kph on the bitumen but did not slow down until he had almost caught up with the truck. He said that when the semi-trailer was at the intersection he was about 100-150 metres behind. He said he was 500 metres behind when he first came off the bitumen.[5] The plaintiff said he wondered why he caught the semi-trailer as fast as he did.[6] The plaintiff said he was 100 meters from the truck when the ball of dust appeared. There is a slight rise in the road before the intersection/crossing.
[4]    T20.
[5]    T36.
[6]    T21.
The plaintiff said that as soon as he saw the ball of dust ‘…I just naturally thought the grader had been on this road the last couple of days’.[7] He said he pulled to the left hand side of the road and slowed down by putting his brakes on. He said because he did not know whether anyone was behind him, he did not want to stop for fear of what may be coming from behind.[8] He said the next thing was that he struck the grader when he (the plaintiff) was travelling about 30-35kph.[9] He said he hit the front left-hand wheel of the grader. He said the grader was also moving towards him and the front left tyre of the grader came up onto the bonnet of the Rodeo.
[7]    T22, T37.
[8]    T22.
[9]    T24, T35.
He was between 1-2 metres from the grader when he first saw it.[10]
[10] T35.
He said he had been planning to turn right at the Steelton Road intersection but could not do so because he could not see it for all the dust.[11]
[11] T37.
The plaintiff said that apart from the dust pile there was nothing to indicate the presence of a grader.[12] He said he saw the grader back off from the bonnet of his car, the blade went down to the ground and, once the dust cleared, the grader operator went to see if he, the plaintiff, was alright. The plaintiff was by this time out of the Rodeo and on the opposite side of the road.[13]
[12] T24.
[13] T24-T25.
The plaintiff said he noted a windrow which is a long mound of dirt/rubble pushed from one side of road to the other by the grader with its blade at an angle. It seemed that the grader was working a windrow at the time of the collision.[14] It should also be noted at this stage that the grader was towing a roller to flatten and compress the road surface.
[14] T26.
The plaintiff said he had been travelling parallel to the windrow, travelling on his side of the road, heading left as he slowed down. He said the force of the impact caused the back of the Rodeo to jump towards the middle of the road.[15]
[15] T25-T27, T31.
The plaintiff said he noted two different road materials once he left the bitumen. He said one of the materials caused no dust and the other caused a little bit of dust but he could still see the back of the truck the whole time.[16]
[16] T31-T32.
He said there was a slight wind.[17] He said the semi-trailer was about 100 meters ahead of him when he last saw it.[18]
[17] T37.
[18] T40.
The plaintiff also said he could see from the road surface that the grader had started grading at the intersection (with Steelton Road), about 140-150 metres from the accident scene.[19]
[19] T38-T39.
The plaintiff acknowledged that in his experience if a road is in poor condition dust can build up on the road such that if a truck goes over it, one of the scenarios that can happen is a ‘big puff of dust’ can happen.[20] He agreed the amount of dust produced when driving on a road would depend on the weather, as will the type and speed of the vehicle.[21]
[20] T45.
[21] T46-T47.
The plaintiff had some experience with graders and considered they would travel at about 7kph when working with the blade down and would produce little dust.[22]
[22] T46-T50.
He agreed there were generally two types of grading, maintenance grading where the road was in reasonable shape and re-sheeting when material is brought in because there is no material left.[23]
[23] T50.
He agreed that when driving along a road you need to take into account that a vehicle, person or animal might be stationary on the road.[24] As to the topography of Main Road 45 just south of the Steelton Road intersection, he agreed there was a slight rise about 100 metres south of that intersection. On a clear day, with an uninterrupted view, from that rise you could see a kilometre or so north along the road.[25]
[24] T52.
[25] T55.
The plaintiff was cross-examined about a letter he wrote to the Editor of the Northern Argus on 30 March 2011. In that letter he referred to Main Road 45 as being in ‘very poor condition’ as at the time of the collision. The Plaintiff was also saying in his letter that the Council should have done more to maintain the road.[26]
[26] T56-T59, Exhibit D2.
The plaintiff said he did not see any sign beside the road saying ‘Grader Ahead’, as he travelled north approaching Steelton Road because there was too much dust. He accepted there was a sign there and later measured the distance between the sign and the point of the collision as 190 metres.[27] He did not see a ‘crossroad’ sign.[28] He confirmed that he did not see the semi-trailer go through the Steelton Road intersection because of the dust.[29] Before there were any dust problems he was behind the semi-trailer by 100-150 metres.[30] He agreed that at that point in time he was about 300 metres from the grader.[31] He was unsure whether the grader had flashing lights operating at the time of the collision.[32] Even if the grader was travelling north at 7kph the plaintiff agreed he would probably still have hit it.[33]
[27] T64-T65.
[28] T69.
[29] T73.
[30] T65-T66.
[31] T66.
[32] T67.
[33] T73.
There was extensive cross-examination as to whether the plaintiff was wearing a seat-belt at the time of the collision and what he told various people on that topic. I find that the plaintiff’s lack of consistency to various people on that topic told against his reliability on that topic and others.
The plaintiff was cross-examined about what he is alleged to have said to the grader driver (Mr Friebel) immediately after the collision. It was put to him that he said this: ‘I’m so sorry, I was following so close to the back of the truck, I should have known better’.
The plaintiff said he definitely apologised, but did not know about the remainder. He said it was ‘quite on the cards’ he also said ‘I’m sorry, I’m an idiot’. He then agreed he did apologise.[34]
[34] T93-T94.
The plaintiff agreed that he caught up with the truck some way south of the Steelton Road intersection, but denied he ‘got right up behind the truck’ or was tailgating.[35] He denied being 50 metres behind for a few hundred metres before Steelton Road. He said he was a safe distance from the truck.[36] He confirmed that just before the Steelton Road intersection the truck disappeared in the dust.[37] He confirmed that if you get caught up in dust you are at risk of being hit from behind because the driver behind cannot see you.[38]
[35] T94-T95.
[36] T95.
[37] T96.
[38] T98-T100.
Evidence from the driver of the semi-trailer, Mr Busch
It is convenient at this stage to consider the evidence of the driver of the semi-trailer, Mr Busch, who was called by the plaintiff.
Mr Busch confirmed he was driving for the plaintiff on 1 March 2011. He was born and raised in the area, including being very familiar with Main Road 45. Generally, he said that there can be more dust from a freshly-graded unsealed road in dry weather.
Mr Busch said he was driving the semi-trailer north along Main Road 45, initially on the bitumen, but then onto the unsealed part, travelling at around 80kph, or a bit less.[39] As he approached the Steelton Road intersection he looked to the left and right but there were no vehicles approaching. He was not aware of another vehicle behind him. He was unable to remember whether there was a sign on the left-hand side of the road as he approached the Steelton Road intersection.[40] He said that once he reached the intersection he could see the grader coming down his side of the road ‘…and it looked like he was doing his final pass, trimming the reel off to the edge of the road’.[41]
[39] T379, T384-T385.
[40] T389.
[41] T379.
He thought it may have been 300 metres ahead, but he was not sure.[42] It could have been 200 metres ahead.[43] He said he moved to the right to pass around the grader and kept going.[44] He said the rise in the Main Road 45 was roughly 100-200 metres south of the intersection.[45] It was only as he moved around the grader that he looked in his right-hand (exterior) mirror and there was no one to be seen.[46] He could not recall how much dust was being thrown up from his truck on this day.[47] There can be a blind spot behind the truck, sometimes brought about by dust, but he was unable to say with the configuration of this truck.[48] As he went onto the unsealed section, he could not remember a sign with these words ‘WARNING, GRAVEL ROADS – Surface Conditions Change Often – DRIVE CAREFULLY’ together with a car depicted as sliding around the road.[49]
[42] T380.
[43] T385.
[44] T381.
[45] T385-T386.
[46] T387.
[47] T389.
[48] T389-T390
[49] Exhibit D20.
The plaintiff’s mother, Mrs Kruse
The plaintiff’s mother, Mrs V M Kruse, also gave evidence. She said she learned of the collision and went out to the scene mid-morning, arriving at the same time as a police vehicle. She said she was driving north on Main Road 45 and did not notice any signs as she approached the intersection of that road and Steelton Road. She saw her son sitting on the right-hand side of the road.
Later in the day she drove through the accident scene (north to south) and saw the Council water cart watering the road where the accident was. It was going south on the east side of the road. She could not remember where the grader was at that time.[50]
[50] T117-T121.
Evidence of the grader driver, Mr Friebel
Mr Friebel has worked for the defendant Council for about nineteen years as one of its employees who does road maintenance and construction work in the field, more particularly road maintenance grading. That represents 90% of his work.
Mr Paul Durkay is his supervisor and was in 2011. Mr Friebel holds a competency certificate in advanced grading and has his ticket in work zone traffic management, the latter being provided by Civil Train.[51]
[51] T156-T158.
He described maintenance grading in this way:[52]
‘It’s cutting the shoulders – when a road wears down, the cars normally drive up the middle of the road and a lot of the road surface moves to the outsides of the road. Now, in maintenance grading, you shave them skirts off the road, shoulders they are and bring it back into the centre of the road where you build up the centre of the road so that it’s got a better wearing surface again and the water sheds off the road easier’.
[52] T160.

The defendant Council has about 5,000 kilometres of unsealed road that requires maintenance grading. He would normally do 2 kilometres in the morning and 2 kilometres in the afternoon.
Mr Friebel was performing maintenance grading on Main Road 45 on the day of the collision. The road was then about 6 metres wide and required him to work up and down a given stretch of road. At the time of the collision he was on his eighth and last run.[53] In that situation you do two runs against the flow of the traffic.[54] The roller being towed behind this grader crushes any rocks and compacts the road surface. A windrow is the dirt and rubble cut off the shoulder of the road and brought across the road in a number of passes.
[53] T161-T162.
[54] T162.
Re-sheeting involves trucks bringing quarry rubble to the road to put a new cover on the road.[55] Mr Friebel said that weather conditions can determine whether to maintenance grade. He said they did not grade if it was hot and dry because of the dust and loose particles.[56]
[55] T163.
[56] T164.
Mr Friebel said the normal working speed was about 8km/h and on an unsealed road it can stop almost instantaneously. He said there were two flashing lights on the grader (one at the front, the other at the rear), that operated when the grader was operational.[57] He said he always used road signs with the words ‘Grader Ahead’, placing them on the side of the road and secured upright by steel pins.[58] The sign is put up first so there is plenty of space for traffic to see and slow down before reaching the grader.[59]
[57] T166.
[58] T167, Exhibit D17.
[59] T171.
At the relevant time in 2011 the defendant Council had four graders and one water cart/tanker, although it had used contractors with water carts.[60] At that time if doing ordinary maintenance grading a water cart was not used. The water cart was use for re-sheeting because the moisture added to the rubble leads to better compaction.[61] From his observation of an adjacent council area, a water cart was not used.[62]
[60] T207.
[61] T173.
[62] T174.
Mr Friebel said not a lot of dust comes off the blade of the grader on a normal dry day. Passing traffic causes more dust.[63]
[63] T175.
Mr Friebel confirmed that on the day of the collision he was doing maintenance grading from the Steelton Road crossroad to a point about 2 kilometres north on Main Road 45. It was his first day in that area. Up to that time the company assembling wind farms in the Waterloo area had been responsible for maintenance on the road. It was a warm, fairly calm day.[64] There were give-way signs for traffic approaching Main Road 45 from either side of Steelton Road.[65]
[64] T175-T176, T199.
[65] T177.
At the time of the collision he was at least 100 metres north of the Steelton Road intersection.[66] Prior to starting grading he had filled out a document ‘Work Traffic Management Record’ relating to weather/working conditions that day. Weather was dry, expected low traffic volumes, work visibility was good but ‘dusty in places’. On this day he noted there were odd spots where ‘… the wind farm had tried doing some small patchwork with … a powdery blue material’.[67] He said these were a little bit dustier that the rest of the road surface. The powdery blue material ‘…was only spots here and there, it wasn’t in a lot of places’. He said there were one or two patches around the cross-roads and odd ones on the road heading north.[68]
[66] T177.
[67] T180.
[68] T202-T203.
He put out four of the ‘Grader Ahead’ signs. One was put on Main Road 45 about 50 metres back or south of the Steelton Road intersection, on the left-hand side for traffic going north, two on the approaches on Steelton Road and one at the far end for traffic going south. All signs were on the left-hand side for the direction of travel.[69] He would normally only use the ‘Grader Ahead’ sign when doing patrol or maintenance grading. Speed limit signs are only use for long-term road works.[70]
[69] T180-T182, T201, T205.
[70] T215.
Focusing on the collision, Mr Friebel had commenced at 8.30am and was on his eighth and final run. The collision occurred at about 11.45am. He was driving south, perhaps 100 metres from Steelton Road, when he saw a truck 250‑500 metres away from him, to the south of Steelton Road, coming towards him. He thought the truck was going at least 80kph. It was kicking up a stream of dust. The truck did not slow down like most people would do passing a grader. Because of the impending dust he slowed right down and stopped. He kept in a straight line. The truck went past him fairly easily without reducing speed.[71] A matter of seconds, five seconds or under, that there was a thud. When the dust cleared after a few seconds he realised it was Mr Kruse who ran into him. He did not see the Rodeo up to that point. He did not move backwards or forwards after that; he did not put the grader in reverse. Mr Kruse’s Rodeo was about 3 feet back from the front wheel of the grader.[72]
[71] T216.
[72] T182-T189.
Mr Friebel then went to see if Mr Kruse, who was known to him, was all right. Mr Kruse was still sitting in the driver’s seat and had some blood on his nose. Mr Kruse said he had rubbed a scab on his nose and it had started to bleed. Mr Kruse also said that he was sorry for being so close to the back of the truck.[73] He then got out and walked to the other side of the road.
[73] T191, T238-T239.
Mr Friebel said what he was doing that day would be best called ‘sweeping’, which he described as:[74]
‘Sweeping is when you grade – your grade blades are more or less touching the ground most of the time, and when you pass over a wheel mark or wear mark in the road from a wheel or something (INDICATES) the material will go into there, them spots, and where your high spots are they – no material should be left there’.
[74] T209.
He then described the process in detail.[75] After he had finished the grading operation there was a minimal amount of loose material, the roller crushing or pushing down any rock.[76] Before he saw the truck and trailer being driven by Mr Busch, he saw a dust haze over the hill to the south. When it passed it kicked a quantity of dust and within only a few seconds, under five seconds, the utility (Rodeo) collided with the grader. The period of time was very quick. Mr Friebel asserted that the utility was travelling too close to the back of the truck.[77] He confirmed he did not see the utility when it collided with the grader because of the dust.[78] He was just moving or stopped when the truck went past.[79] The dust took a few or couple of seconds to clear.[80] To his knowledge he did not move forward after the collision.[81] The truck had been approaching fairly fast and was kicking up a reasonable amount of dust.[82]
[75] T209-T212.
[76] T213-T214.
[77] T216.
[78] T216-T218.
[79] T217-T219.
[80] T219-T220, T223.
[81] T221-T222.
[82] T223.
Mr Friebel confirmed that he started grading that day about 50-100 metres, north of the Steelton Road intersection.[83]
[83] T224-T227.
Referring to the Field Guide, Traffic Control Devices for Workzone Traffic Management,[84] under the heading ‘Unsealed Roads, Maintenance Grading and Re-sheeting’, Mr Friebel said no risk assessment was ever undertaken for maintenance grading.^[85] He said the ‘sign sheet’ dealt with aspects of risk.[86] As to paragraph 3, on two passes he had to move to the incorrect side of the road. Mr Friebel agreed he did not put up a sign which ‘Road Work Ahead Next 2 km’ or a sign indicating ‘Loose Material’.
[84] Exhibit P10.
[85] Para 1.
[86] Volume 3, p 558.
As to paragraph seven, that reads as follows;
One or more of these signs (below) can be installed at various locations if the freshly graded surface has loose material that may be a hazard
·       Slippery (symbolic) (T3-3)
·       Loose Stones (symbolic) (T3-9)
·       Loose Surface (T3-14)
Locate signs that are >= 100 metres ahead of the hazard
Mr Friebel said there were odd bits of loose surface.[87]
[87] T230, T239.
As to paragraph eight, that reads as follows:
The appropriate speed limits may be applied. Set up a speed zone of 60 km/h or 40 km/h (to suit conditions), unless hazardous work area
·Length of 60 km/h speed zone shall be >= 200 metres
·Length of 40 km/h speed zone shall be >= 500 metres
·Length of 25 km/h speed zone shall be >= 100 metres and shall be <= 200 metres
The end of a speed zone shall be marked with End Speed Limit (R4-12) displaying the speed set up in the speed zone.
Mr Friebel said no such signs were put up.[88] He said for that sort of work that it is ‘not something that we do’. He was not advised to do it any other way.[89]
[88] T231.
[89] T231-T232.
In re-examination Mr Friebel was asked about an additional aspect of the Field Guide,[90] particularly paragraph nine which reads as follows:-
No advance working signs for either direction of travel are required when:
·Grader is always to operate leaving room for opposing traffic to pass it without driving off the roadway
·Sight distance to the grader’s vehicle mounted warning device is >= 250 metres throughout the entire section of road being worked on
Should the operating conditions in this note not be met, the work shall be carried out with advance warning signs as described above
[90] Exhibit P10.
As to the first dot point, Mr Friebel said there was room for traffic to pass without leaving the road. As to the second dot point, he said the ‘…vehicle mounted warning device’ was the flashing beacon (on the grader) ‘…and you would see if further than 250 metres’.[91]
Water carts – common practice - policies, procedures and resources
[91] T240.
Mr Miller
The defendant Council called Mr Miller, Manager, Works and Infrastructure of the Council. He commenced with the Council in that capacity in April 2016. He was not permitted to give evidence about matters relevant to 2011 because of his limited time with the Council. However, he said the Council presently (at time of trial) had one water truck consisting of a prime mover and trailer. To buy another would cost in excess of $200,000. The Council presently has four graders and recently purchased one for $365,000 as part of a plant replacement programme.[92]
[92] T151-T155.
Mr Hean
The defendant Council called Mr Hean, an employee of the Council for 12 years. His role in 2011 was mainly as a Water truck driver as part of the construction team. Training as a water cart driver was on-the-job training. The water cart in 2011 consisted of a prime mover and a trailer with a capacity of 22,000 litres. There were no other water carts owned by the Council in 2011. There were no other vehicles at that time capable of carrying water for watering roads. Watering is effected by gravity feed to a bar at the back of the tanker.[93]
[93] T247-T248.
Mr Hean said the water was used in the re-sheeting of roads to mix into the rubble and help the compaction process. The 22,000 litres in a tanker would do a stretch of about 800 metres to a kilometre at one time. Refilling the tank took about 30 minutes. In 2011 re-sheeting roads was on-going with one water truck.[94]
[94] T249.
Mr Hean also did maintenance grading in 2011 and a water cart was not used for that process.[95] To do otherwise would be a huge expense.
[95] T250, T267-T269.
When doing maintenance grading, signs were put up before the work commenced. The sign was positioned to leave enough room between the sign and where grading commenced to enable the grader to turn around.[96] He would use the ‘Grader Ahead’ signs. That was the only signed used for patrol grading, speed signs were not used for maintenance grading. He regularly did courses to keep up-to-date with new laws and distancing and other aspects of putting signs up.[97]
[96] T250, T263-T265, T269.
[97] T250, T266-T267.
A road is not closed to do maintenance grading, ‘lollipop’ people (men/women) are not used.[98]
[98] T250.
On the day of the collision Mr Hean was working elsewhere but was called to the scene to water the road in the vicinity of it. He had been doing a re‑sheeting job about half an hour away. He was asked to water the road from the intersection up past the accident site to keep the dust down for the people that were around the area to make it safer for them.[99]
[99] T253.
He then returned to his earlier job.
Mr Hean said winter time was optimal time for road maintenance grading because rainfall helps to bind the material. Dry conditions leaves a loose surface and creates dust. On 1 March 2011 it was dry and dusty.[100]
[100] T257-T258.
Mr Smith
The defendant Council called Mr I Smith, Team Leader Construction Site Works. He has been with the Council for eleven – twelve years and was a leading hand in 2011. Sometimes he did patrol or maintenance grading. The only signs used in 2011 were the ‘Grader Ahead’ signs. Every three years they renewed their Work Zone Traffic Management ticket.[101]
[101] T271-T273.
In 2011, when performing maintenance grading, it was rare to use a water cart. One was sometimes used when grading in front of a house when the landowner wanted to prevent dust blowing into their house. He said watering in front of a house would only last for a small period (between five and thirty minutes) because the water would evaporate.[102] A water cart was also used to assist in re-binding the road, particularly if re-sheeting.[103]
[102] T312.
[103] T274-T275, T297-T298.
He said the normal maintenance grader run was 1 to 2 kilometres, using a close intersection to turn around. At that time the council had four council‑owned graders plus a contractor. The water cart worked in conjunction with the grader doing re-sheeting. If water carts were required for all maintenance grading, you would probably need two carts per grader because the water is used quickly and the time it takes to re-fill. If you only had one water cart for four graders, the graders would be idle for much of the time.[104] At that time the council was responsible for 1300-1500 kilometres of unsealed road which they could get done in a year.[105] The plaintiff Mr Kruse would sometimes drive through roadworks.[106]
[104] T277.
[105] T278.
[106] T278.
Mr Smith attended the collision scene with Mr P Durkay early in the afternoon. They approached from the west along Steelton Road and turned left into Main Road 45. He noted three signs, one on each road approaching the intersection. He said the ones on Steelton Road were around 30 metres before the corner and there was one on Main Road 45 about 150 metres south of the intersection.[107] He did conceded that it may have been 50 metres south, not 150 metres.[108] The signs were positioned on the left-hand-side to face approaching vehicles.[109]
[107] T279-T280, T285-T286,
[108] T307.
[109] T280.
At the collision scene Mr Smith and Mr Durkay approached Mr Kruse and his utility. According to Mr Smith, Mr Kruse said:
‘Sorry guys, sorry guys, my fault. I didn’t see him in the dust’[110]
[110] T287.
Mr Smith also said that in 2011 a sign of the type shown in photograph Exhibit D20 was placed on sealed bitumen roads when the road is about to become an unsealed road. In 2011 such a sign was in place on Main Road 45 when the road surface changed from sealed to unsealed, about 1–5 kilometres south of the Steelton Road intersection.[111]
[111] T288-T291.
In terms of equipment in use in 2011, the Council also had a small 8,000 litres in the back of a tipper which was used for smaller jobs to water down roads. The Council also used contractors, but rarely.[112]
[112] T297-T298.
Mr Smith also said he had been told not to put up any speed limit signs on unsealed roads because it suggests to drivers that they can safely drive at that speed when that may not be the case. With no sign it is left to the driver to decide depending on the conditions.[113] Speed signs are available to slow the traffic down if employees are on the side of the road.[114] Various other signs are available depending on the work being undertaken.[115]
[113] T302.
[114] T303.
[115] T302-T303.
Mr Durkay
The defendant Council called Mr Durkay who was a foreman in 2011 and is now the Supervisor of Construction and Maintenance. In 2011 he took instructions from the work manager. Before being in a supervisory position he was a grader operator for about twenty six years.
He said the Council had about 1500 kilometres of unsealed roads. He explained re sheeting involved placing a new layer of rubble on the road, whereas maintenance grading was patching up. The number of maintenance grades per year is assessed by asset management.[116]
[116] T314-T315.
Mr Durkay said that maintenance grading practices have not changed since 2011 and that it is not usual practise to send a water cart for maintenance grading. He said it was not economical and not needed most of the time. You would only use it if the road was really broken up. A water cart would be used in townships to keep the dust down when working around houses.[117]
[117] T316-T317.
He said when doing maintenance grading it was not the practice to close sections of the road or erect temporary speed limit signs. He used the word ‘maintenance’ grading to mean grading where material/rubble is added, whereas grading is maintenance of short sections, perhaps a 100 metre section, in which case speed limited signs would be used because of piles of rubble on the road.[118] Partial grading involves a long section of about 2.4-2.5 kilometres, in which case speed limit signs are not used. Only the ‘Grader Ahead’ sign is used.[119] Prior to 2011 two additional signs were used ‘Rocks on Road’ and a ‘25km’ sign.[120]
[118] T357.
[119] T318-T357.
[120] T358-T259.
Mr Durkay said the budget for patrol grading in 2011, was $280,000 which covered the cost of operating the machine (fuel) and the wage of the operator. It worked out to $135 per hour to operate a grader. Water carts were about the same and a lollipop person was $50 per hour. Outside contractors are dearer.[121] He said the annual grading budget would be gone in months if a water cart was sent out with every maintenance grading job.[122] You would need a prime mover and trailer (at $260,000 to $280,000) plus additional personnel. The process would have lessened the speed of patrol grading.[123]
[121] T320.
[122] T321.
[123] T322.
The decision to put up fixed, permanent speed signs is not made by the Council but by the Department of Transport, Infrastructure and Energy. The policy is not to put up permanent speed signs for unsealed roads.[124] He acknowledged there were other choices other than a speed limit sign.[125]
[124] T322.
[125] T361.
On 1 March 2011, Main Road 45 needed patrol grading, the road having been previously maintained by a company building a nearby windfarm. It needed a light patrol grade but not the use of a water cart.[126]
[126] T324.
On learning of the collision on 1 March 2011 he went with Mr Smith to Steelton Road. He saw there were three signs, two on Steelton Road about 50 metres from the intersection (later modified to 10 metres) and one south on Main Road 45 about 100 metres from the intersection. Later he said the normal practise was to place it 50 metres before an intersection.[127] The collision site was about 150-200 metres from the intersection. The police, SES and CFS were in attendance. The grader looked to be on its last run on the western side, with about 150 metres to go, that is, just before the intersection with Steelton Road.[128] He heard Mr Kruse say he was ‘sorry’. The water cart attended but Mr Durkay could not say who made that request.[129] He directed the water cart operator to water the road because there were a few sightseers and traffic.[130]
[127] T356.
[128] T328.
[129] T329.
[130] T330, T361-T362.
Mr Durkay said that south of Steelton Road, on Main Road 45, the road surface ‘wasn’t too bad’.[131] He said that coming off the sealed surface further south on Main Road 45, for vehicles travelling north (as was the plaintiff), there was advisory sign warning of a change in road conditions. Exhibit D20 is a photograph of the sign that was in place.[132]
[131] T330.
[132] T331-T332.

Mr Durkay said he directed patrol grading on Main Road 45 because the Council had had complaints (‘a bit of rock starting to stick out’) and it needed some patrol grading. That day was fine and dry. Mr Friebel was to go out and make an assessment whether to grade.[133] If it is too dry you do not grade because of the dust. At no stage did he notice powdery blue patches on the road.[134]
[133] T334-T336.
[134] T336.
Mr Durkay told the court that the water cart may be used for patching and was used for re-sheeting.[135] Water carts were used at particular intersections and corners with harvest traffic because there were houses nearby in a township.[136]
[135] T343, T350.
[136] T350-T351,
Mr Durkay also said that the section of Main Road 45 north of Steelton Road had the most traffic because trucks from the windfarm would travel south on Main Road 45 and turn left into Steelton Road.
South of Steelton Road was not too bad and Mr Durkay said he decided to grade the worst bit first (i.e. north of Steelton Road).
Mr Durkay also gave some evidence about the photograph Exhibit D20. Although he could not say it was up on the day of the collision, it was up four years ago when it was moved to its present position and they have a system for quickly fixing signs that are damaged or knocked down.[137]
[137] T364-T365, T369.
Mr Avery
Mr Avery, the last witness to be called by the Defendant Council, has worked for councils for much of his working life. Presently he works for the Mid-Murray Council in Mannum. He has been working as a consultant/contractor for that Council for four and a half years. He first started with the District Council of East Murray in 1974 working as a plant operator, including graders. He did patrol and maintenance grading. He worked for that Council for four years. The usual practise at that time was not to use water carts for patrol grading, or to close roads, or to have workers on the ground controlling traffic or to use temporary speed limits.[138]
[138] T405-T406.
Mr Avery next moved to the District Council of Pinnaroo as an Overseer of Works, working there for six years. It had predominantly unsealed roads. Again, with patrol grading, water carts were not used, roads were not closed, workers controlling traffic were not used and temporary speed limit signs were not used.
He then worked for the Naracoorte Council for twelve and a half years. He had oversight of maintenance grading and the same situation pertained there when doing patrol grading. Next he was with the District Council of Loxton and Waikerie when he worked for sixteen years as the Director of Infrastructure Services, which included oversight of patrol grading. The same situation applied there for patrol grading.[139] The same applied to the Wattle Range Council at Millicent when he worked for two and a half years. That took him to his present employment with the Mid-Murray Council at Mannum. The same applies there.[140]
[139] T405-T409.
[140] T409-T410.
He said in his experience water carts are used for rehabilitation grading where no extra material is added. The unsealed road surface is scarified by blades attached to the grader and moisture is used to be able to reconsolidate the existing road (pavement).[141] That type of work was over short distances because there had been a rapid deterioration leaving a deeply pot-holed surface.[142]
[141] T411.
[142] T412, T414, T417.
Mr Avery has come to know the practises in other councils from being a member of a steering committee with the Local Government Association in 2002 where they developed the document ‘Managing Unsealed Roads in South Australia’. It was meant to assist councils with practices in relation to operations, including maintenance construction of unsealed roads. Being on the committee, he necessarily discussed such matters with other Councils.
Mr Avery was also, involved with the Local Government Roads and Works Conference Committee for 23 years.[143] Being on that committee involved regular discussions with members of other councils concerning maintenance grading.[144] He presently provides training in relation to Road Traffic Act Management through Civil Training on a part-time basis.
[143] T412-T413.
[144] T413.
He acknowledged that cars and traffic volumes have increased over the years since 1974 but they ensure roads are maintained to a satisfactory standard, including eliminating a loose surface because traffic may kick-up dust. The quantity of the dust is going to depend, in part, on the vehicle and its weight. He said in patrol grading the loose material at the side is distributed across the road; the loose material or windrow is left there for that purpose or pushed to the side by traffic movement.[145] If the grader cannot be seen for a distance of 250 metres or the vehicle mounted warning device cannot be seen at a distance of equal to or less than 250 metres, a sign ‘Grader Ahead 2km’ should be used.[146]
[145] T415-T416.
[146] T416-T417.
Mr Avery said practises across council areas varied depending on availability of material, nature of the road surface, traffic volume and type.[147]
[147] T420.
Mr Avery suggested putting up temporary road signs would be difficult, although it would only take five minutes.[148] He said signs have changed in the last fifteen years for patrol grading and now it is ‘Roadwork Ahead Extend 10kms’, measuring 1200 x 600, bigger than Exhibit D17 (which measures 900 x 600).[149]
Legal principles to be applied
[148] T421.
[149] T421-T422.
Duty of care - standard of care
It was accepted that, in general terms, the Council owed a duty of care to road users in relation to the operation of the grader on a public road. The more difficult question is as to the scope or content of that duty or what is required to discharge that duty. It is appropriate at this point to refer to Sections 31 and 32 of the Civil Liability Act, 1936 (so far as is relevant for present purposes):
31 – Standard of care
(1)For determining whether a person (the defendant) was negligent, the standard of care require of the defendant is that of a reasonable person in the defendant’s position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
(2)The reasonable person in the defendant’s position will be taken to be sober unless–
(a)   the defendant was intoxicated; and
(b)   the intoxication was wholly attributable to the use of drugs in accordance with the prescription or instructions of a medical practitioner; and
(c)   the defendant was complying with the instructions and recommendations of the medical practitioner and the manufacturer of the drugs as to what he or she should do, or avoid doing, while under the influence of the drugs,
and, in that event, the reasonable person will be taken to be intoxicated to the same extent as the defendant.
32 – Precautions against risk
(1)A person is not negligent in failing to take precautions against a risk of harm unless-
(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)   the risk was not insignificant; and
(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)   the probability that the harm would occur if precautions were not taken’
(b)   the likely seriousness of the harm:
(c)   the burden of taking precautions to avoid the risk of harm;
(d)   the social utility of the activity that creates the risk of harm.
Applying s 32 the plaintiff submits that the risk was foreseeable, it was not insignificant and a reasonable person in the position of the defendant Council would have taken (additional) precautions, particularly the erection of a speed-limit sign and other signs.
It is appropriate to note these considerations from Mason J (Stephen and Aickin JJ agreeing) in Wyong Shire Council v Shirt[150] having referred to The ‘Wagon Mound’ (No 2)[151] when he said:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
[150] (1980) 146 CLR 40 (at para 14).
[151] (1967) 1 AC 617.
The plaintiff places particular reliance upon a number of authorities, particularly relating to the duty imposed upon the users of heavy vehicles on public roads. They involve both the standard of care and contributory negligence.
The first is Cocks v Sheppard.[152] That case is distinguishable on its facts because it related to a collision between a semi-trailer and a motorcyclist who was travelling in the same direction. Originally the motorcyclist (Sheppard) was not found to have been guilty of contributory negligence but this finding was overturned by the majority of the court, Murphy J dissenting.
[152] (1979) 53 ALJR 591; 25 ALR 325.
The majority did observed the driver of the semi-trailer ‘…knew that the cyclist were ahead of him on the roadway; he was driving a large and heavy, yet fast-moving, vehicle capable of causing great damage if involved in a collision but he failed to keep the careful look-out that was required of him in the circumstances’.[153] That observation has some application to both the plaintiff and the Council’s driver but for different reasons. The grader was a large and heavy vehicle capable of causing great damage if driven at speed (which was not the case here), but the plaintiff was driving close behind an even heavier vehicle that was being driven at speed and was capable of causing great damage if involved in a collision. Murphy J dissented on the aspect of contributing negligence, but the plaintiff relies upon the observation that ‘…reasonable care on the part of those in charge of (a huge, heavy vehicle) is the utmost care’.[154] This is sometimes referred to as a heightened duty. That dissent was relied upon by Gray J in Kambouridis v Heyn and Trans Adelaide.[155]
[153] ALR at 322.
[154] ALR at 334.
[155] (2000) SASC 261 at para 19.
Reliance was also placed on Grantham v State of South Australia and Anor[156] which has factual similarities to the present case. In that case the plaintiff was a passenger in a car driven by another man (Phillips) when that car collided with a grader operating on an unsealed road about 35 miles north of Port Augusta. The trial judge, Hogarth J, apportioned liability as to two-thirds against the employer of the driver of the car (Phillips) and as to one-third against the State of South Australia (the grader drivers’ employer). The State appealed against the apportionment of liability. On appeal all judges were of the view that the State had been negligent, but different views were expressed about the extent of that liability.
[156] (1975) 12 SASR 74.
Bray C. J considered that the apportionment against the State ‘…was much higher than I would have fixed.’ but was not prepared to interfere with the findings of the trial judge.[157] The Chief Justice would have attributed a considerably smaller proportion of responsibility to the State for the reasons given by Jacobs J, Zelling J in part drawing from his own experience, was of the opinion that the finding of appointment was too favourable to the State but was not prepared to interfere.[158] Jacobs J was prepared to intervene and reduce the States apportionment to 15%.[159] In the result, the appeal was dismissed.
[157]At p 86-88.
[158]At p 90-92.
[159]At p 97.
To understand some of the factual parallels and findings of negligence against the State (grader driver) it is necessary to say something of the facts. I refer to the summary of Zelling J which also picks up from the trial judge.[160]
The vehicle driven by Phillips was travelling south towards ort August along the main Port August-Woomera Road and the grader was grading the northern side of that road travelling in a northerly direction towards Woomera. The surface of the road in this area was unsealed and was composed of very loose sandy rubble so that vehicles travelling on it threw up dust clouds as they travelled. The road was approximately forty-one feet wide.
The grader was working on an area of the road some four miles in length. About two and two-tenth miles north of the scene of the accident there was a warning sign posted on the eastern side of the road, i.e. on the left-hand side from Phillips’ point of view. The sign was just a little above ground level and consisted of the words ‘Grader Ahead’ in black lettering on a luminous yellow background. The sign was erected a short distance north of the norther end of the area of road which Summers was engaged in grading. The learned Judge describes the circumstances shortly as follows:-
‘The county generally was flat in the area, but approximately two miles to the north there was a rise referred to by some witnesses as ‘Cow Hill’, and by others as ‘Quarry Hill’. As the motor car came over the hill the plaintiff saw two semi-trailers ahead, travelling in the same direction as the motor car. He estimated that the rear-most was about one mile away. His impression was that he could see three vehicles from the top of the hill all throwing up clouds of dust; and this was probably correct, the third being the grader.
The day was fine, and there was a light breeze blowing from south to north. The account given by the plaintiff was that shortly before the accident occurred the motor car had caught up with the two semi-trailers. Each was throwing up a cloud of dust which covered the whole or the greater part of the road from side to side and reduced visibility to as little as eight feet. Phillips moved out to his right to pass the semi-trailers, and successfully passed the rear-most of them, which was driven by the witness Hancock; but before he had succeeded in passing the foremost he collided with the grader which was facing in the opposite direction. By this time visibility had improved to about thirty feet. According to the plaintiff the motor car was alongside the foremost semi-trailer when the impact occurred.
[160]At p 88-89.
As can be seen, the facts are readily distinguishable from the present case. Like the present case, however, there was a single ‘Grader Ahead’ sign. As to signs, Zelling J said this:[161]
The negligence found against the grader driver Summers was the failure to post effective warnings, showing with reasonable exactitude that there was a grader working and where it was working. The undisputed evidence of Summers was that there were all sorts of warning signs held by the Highways Department at Port Augusta so that there was no difficulty in producing extra warning signs if these had been asked for.
[161]At p 91.
As I will come to later, the same can be said here but, as the defendant Council argues, the plaintiff drove in such a reckless manner that he precluded himself from seeing any signs. Further, the defendant’s counsel also argues that the plaintiff’s reckless manner of driving also precluded himself from seeing the flashing light on the front of the grader, which light I accept was operating prior to and at the time of the collision.
Jacobs J expressed the view that one sign was not enough. He said this:
Even if the proper finding, upon the whole of the evidence, is that Phillips could have seen the warning sign that does not seem to me to be decisive. In the first place, it by no means follows that he should have seen it. He was travelling at a fairly fast, but not an improper speed, and a momentary diversion of his attention from the side of the road at the critical moment may account for his failure to see it. He himself did not attribute such failure to the dust of Hancock’s vehicle. But it is just that possibility, coupled with the possibility of danger that the grader presented, which seems to me to justify the view of the learned trial Judge, that one sign was not enough. There can be no doubt that the grader might present some hazard. It is a large slow-moving vehicle, incapable of quick manoeuvre by way of evasive action. It was at times required to work, as it was working at the time of the collision, on the middle of the road. Its presence was likely to be obscured by the dust created by other traffic, and it was working over a four mile stretch of road, a fact which in itself, apart from the other matters, calls for adequate and repeated warning of its presence.[162]
[162]At p 94 (Emphasis added).
Although the circumstances were different in that case, these observations have application here.
Jacobs J made two other points worthy of note in this case.
It was argued in that case and, as I have touched on, argued here, that even if there was insufficient advance warning of the presence of the grader, it was not causative of anything because of the plaintiff’s reckless manner of driving. He said this in relation to that argument:
Phillips (the driver of the car in which the plaintiff was a passenger) undoubtedly courted a number of possible dangers, but the possibility of the very danger he encountered is one of which he should have been given more effective warning, and in my judgment that is sufficient to involve the appellant in some responsibility.
The emphasis again was on ‘…more effective warning…’.[163]
[163]At p 95.
Finally Jacobs J said this that has relevance to this case:
By any test, the manner of driving by Phillips involved a gross departure from the standard of care of a reasonably prudent driver in his situation. He took the risk of driving ‘blind’, partly on the wrong side of the road, a risk which involved the possibility of collision with any vehicle travelling in the opposite direction.[164]
[164]At p 96.
The plaintiff also relies upon Eicas v Dawson,[165] a case involving a collision between the plaintiff motorcyclist (Dawson) and a car driven by Ms Eicas. The court considered the question of defensive driving in the context of contributory negligence. In that case Lovell J with whom Nicholson and Parker JJ concurred, said this:[166]
‘The duty of a reasonably prudent driver is to drive with a defensive outlook’, (relying upon Stoeckl v Harpas).
[165](2016) SASCFC 124.
[166]Para 53.
The topic of defensive driving has more than a passing relevance in this case. It is therefore appropriate to take account the remarks of Wells J in Stoeckl v Harpas.[167]
‘Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they present themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger.
[167](1971) 1 SASR 172.

In Kambouridis (supra), Gray J referred to Stoeckl v Harpas but also von Doussa J in Walton v Rowbottom2[168].
In 1986 von Doussa J in Walton v Rowbottom2 observed that community expectations for careful driving had heightened since 1971. He said:
‘…The cost to the community of death, bodily injury and property damage on the road, has continued to grow. In an effort to encourage greater care and to deter bad driving penalties for offences under the Road Traffic Act have been progressively increased. The community now requires not only a measure of defensive driving, but a measure of protective driving – to protect drivers, cyclists or pedestrians. Drivers must guard against all reasonably foreseeable dangers. Prominent amongst the foreseeable risks which drivers must have in mind is the one that other road users may be careless. Many provisions of the Road Traffic Act establish arbitrary standards the breach of which is punishable. They do not establish immutable ‘rights’ to drive up to the limits prescribed regardless of prevailing circumstances. …’
[168] Unreported Judgment No. 9362 delivered on 17 September 1986.
In other words, drive defensively, drive to the conditions.
Before moving to a further consideration of the facts and my findings, two additional topics must be noted.
Contributory negligence
Authorities involving contributory negligence have already been referred to, so I note s 44 of Civil Liability Act 1936
44—Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm (the plaintiff) has been contributorily negligent.
(2) This section is not to derogate from any provision of this Act for reduction of damages on account of contributory negligence.
Contributory negligence is defined in s 3 of the Civil Liability Act 1936 as meaning:
‘…a failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection or for the protection of his or her interests.’
Contributory negligence exists if a person has failed to exercise the care for his own safety that a reasonable person would have exercised in the circumstances.[169]
[169] Banovic v Perkovic (1982) 30 SASR 34.
If contributory negligence is found then it is necessary to apportion responsibility and for that purpose compare the respective degrees of fault.[170]
[170] McIntyre v Ridley District Council (1991) 56 SASR 343.
Liability of road authorities
I also note s 41 of the Civil Liability Act 1936
(1) A road authority is not liable in tort for a failure—
(a) to maintain, repair or renew a road; or
(b) to take other action to avoid or reduce the risk of harm that results from a failure to maintain, repair or renew a road.
Hence in this case the emphasis has been that the tort of negligence arose from the grading operation.
Further consideration of the facts and findings
Main Road 45 runs north/south. The collision occurred on 1 March 2011 north of the Steelton Road intersection with Main Road 45. Estimates of the distance north of Steelton Road varied, but I find it to be of the order of 150 metres.
That portion of Main Road 45 was unsealed. At a point south of Steelton Road (but north of White Park Road) the road changed from sealed to unsealed. The plaintiff drove behind the semi-trailer for about a kilometre on an unsealed surface before reaching Steelton Road.
I find that at about the point where the road changed from sealed to unsealed, there was a sign of the type shown in Exhibit D20 (and was, in all likelihood, the very same sign as depicted in that photograph). All drivers were warned to drive carefully because they were approaching gravel roads where ‘surface conditions change often’. The sign included the illustration of a tilted car weaving from side-to-side, obviously indicating there was the risk of losing control of a car in those conditions. In any event, the plaintiff was well familiar with the road and was a driver well-experienced in driving on unsealed roads. That experience extended to driving a variety of vehicles on such a surface and seeing and driving behind vehicles on such a surface.
Main Road 45 was generally flat and followed the undulations in the land. South of Steelton Road the road rose-up a little such that a driver travelling north normally had a clear view ahead for about a kilometre or so. It was that view that the driver of the semi-trailer, Mr Busch, had as he approached Steelton Road. He could see the grader ‘…doing his final pass, trimming the reel off to the edge of the road’.[171] He thought the grader at that time was about 300 metres north of Steelton Road, although he was not sure.[172] Because the grader was then travelling at a low speed and came to a stop at about the moment of the collision, it would not have travelled very far towards the truck (and the plaintiff driving behind) between that sighting and the collision itself.
[171] T379.
[172] T380.
I find that the weather was fine and dry. It was not a hot day and there was only a slight breeze coming from the north but across the road. There was nothing in the weather that militated against the patrol grading that was undertaken that day.
I find that there were a number of signs in the area of the Steelton Road intersection, some fixed, some temporary. In terms of fixed signs, for vehicles travelling east or west along Steelton Road, there were ‘Give Way’ signs close to the intersection itself. For a vehicle travelling south towards Steelton Road, that is, towards the semi-trailer (and plaintiff behind), there is a sign indicating an intersection. I cannot positively find there was a comparable sign for vehicles travelling north towards Steelton Road because there was no evidence about that, but Mr Busch and the plaintiff were aware of the intersection.
In terms of temporary signs I accept there was a ‘Grader Ahead’ sign on each of the approaches along Steelton Road. The sign was the type and size shown in the photograph, Exhibit D19 (being photographs of D17). The placements of those signs are as depicted in photographs 1 and 2 of Tender Book Volume 3, page 547. There was a similar sign about 2 kilometres north of the intersection for vehicles travelling south. I also accept and find there was a comparable sign for vehicles travelling north. I make that finding notwithstanding the failure of the defendant Council to produce the photograph of it in place. I find Mr Friebel and Mr Durkay to be honest and reliable witnesses. I accept the sign was probably behind the photographer who took the photograph of the Council utility shown at Tender Book Volume 3, page 546, bottom left-hand corner (looking north with the collision site in the distance).[173]
[173] Friebel T181-T182, Durkay T326.
I accept the evidence of Mr Friebel that he was undertaking maintenance grading on that day. He was not working in conjunction with a water cart. A water cart was not necessary for the work then being undertaken.[174] For reasons I explain later in these reasons, a water cart was not required or advisable.
[174] T16-T163, T173-T174.
Although it was a warm, dry day, the action of the grader caused little dust to rise.[175] The work being undertaken was done at an appropriate, measured speed.[176] The stretch of road being graded was for about 2 kilometres and started at about 100-150 metres north of the Steelton Road intersection.[177]
[175] T175.
[176] T165-T166.
[177] T177.
Other estimates were given about the distance north of Steelton Road that it started: Mr Smith said it was 150-200 metres north,[178] Mr Durkay thought there was about 150 metres more of the windrow to be done and that the windrow finished just before the intersection.[179] Importantly, the grading was, on all accounts, north of the intersection. Even if the grader and its articulated roller did a turn at the intersection, grading was not occurring and the roller would have been compacting each time.
[178] T310.
[179] T328.
Events shortly before the collision
I accept this evidence from Mr Busch.
Mr Busch was driving the semi-trailer north on Main Road 45, having left the sealed road just north of White Park Road. What has been described as a semi-trailer was a prime move and tipper, all up it weighed about 45 tonnes.
Vision to the rear of the semi-trailer was by means of external side mirrors. He could not remember seeing any signs and he was not aware of any vehicles behind him.[180] He said in summer there is a certain amount of dust thrown up on any road and it’s hard to see what is behind you.[181] As mentioned, he was not aware of any vehicle travelling behind him.[182] He saw the grader working about 300 metres ahead but was not sure of the distance.[183] He agreed there was a rise in the road about 100-200 metres south of the Steelton Road intersection giving a good view for about 1 km north. [184] He saw the grader doing its final pass and moved to the centre of the road to pass it. He thought he was travelling at about 80km/hour.[185]
[180] T379, T389.
[181] T377, T389.
[182] T379.
[183] T380.
[184] T385-T386.
[185] T384-T385.
Subject to what I say on some topics, I make specific finds about the evidence of the plaintiff.
The plaintiff, Mr Kruse, had driven on Main Road 45 hundreds of times. He had travelled on that road all his life.[186] He was well – familiar with it. He had arranged for one of his drivers to pick up 28-29 tonnes of loose lime in Adelaide and was due to meet him at about noon at the property to where it was to be delivered. That property was a few kilometres north of the collision site. He was, however, on his way to his office at Waterloo and that took him along Main Road 45.
[186] T32, T46.
He was travelling at 100kph when travelling along the bitumen. When he went onto the unsealed road, initially his speed did not change. Once he was on the dirt section he could see his semi-trailer ahead of him travelling in the same direction. At that time there was dust, some being kicked up by the semi-trailer. He was catching the semi-trailer which was what he intended. He caught up with truck just before the Steelton Road intersection. The plaintiff said a cloud of dust appeared out of nowhere just before the intersection. He said when the truck was at the intersection he was 100-150 metres behind it. He said he did wonder at the time why he had caught up as fast as he did. He said he was unable to see the truck as it passed through the intersection because of the ball of dust. He said, that he was 100 metres from the rear of the semi-trailer when the ball of dust appeared. However, as will be seen, I do not accept that evidence of the distance.
As to what the plaintiff did upon becoming aware of the ball of dust, I quote from his evidence:[187]
QWhat did you do when you became aware of this ball of dust.
AAs soon as I seen the ball of dust, I just naturally thought the grader had been on this road the last couple of days, so I pulled to the left-hand-side of the road, put my brakes on and went ‘I don’t want to stop. What should I do?’, and before I thought any further, I’d already hit the grader.
QWhy didn’t you want to stop.
AIt’s always difficult to stop when you’re in dust when you don’t remember what’s behind you, if you haven’t looked. I’ve worked in dust all my life.
[187] T22.
And later
QYou said earlier in your evidence something about a grader or a grader having been on the road.
AYes, normally, when you hit a dust or you see a dusty ball like that, normally it’s a grader has been on the road prior or we have quite bad roads up our way, so the road can actually fall to pieces and you can come across a dust – I don’t know how you explain it – a dust pit where the road breaks away, so it had to be one of those too.[188]
[188] T23.
He went on to say, and I accept, he headed left and did not want to stop for fear of being hit from behind but he could not remember if anyone was travelling behind. He said he did not see any signage on either side of the road prior to the dust cloud. He said the cloud of dust resulted in him going from seeing everything, to seeing ‘absolutely nothing’.[189] He said he was moving at 30-35kph when he collided with the grader.
[189] T22.
There is a dispute as to whether the grader’s front wheel rose up onto the bonnet of the plaintiff’s utility or whether there was a collision and the plaintiff’s utility bounced back.[190]
[190] T24.
I do not think it is necessary to resolve that.[191] The plaintiff said the wheel of the grader came up on the utility. He first saw the wheel when it was one and half – two metres away. He said it ‘loomed out of nothing’.[192]
[191] T25-T35.
[192] T35.
The plaintiff went on to say that the ball of dust to which he had previously referred rose from the exact spot where the grader started grading which he said, he could see to be at the intersection.[193] This is different to what he said earlier, when he said the ball of dust appeared out of nowhere before the intersection. He said earlier he did not see the truck travel through the intersection and he himself did not see the intersection. I find the ball of dust rose up before the intersection and the alteration was a product of his reconstruction.[194] As mentioned, I accept the grading started about 100-150 metres north of the intersection.
[193] T36.
[194] T36.
I find that the plaintiff travelled in the order of 300 metres without any visibility. He might just as well have been blindfolded. His speed was reducing before he collided with the grader and I am not in a position to say precisely how long he was driving unsighted, but I would estimate that time to be about twenty seconds on his account. As will be seen below, I do not accept it was that long.
I return to the topic of the distance, the plaintiff was behind the truck at the time the dust ball appeared. As noted, the plaintiff said it was about 100 metres. I note a number of matters to which reference has already been made. I find he was much closer.
The first is that on his own account the plaintiff said he was gaining on the truck and wondered why he had caught up as fast as he did.[195]
[195] T21.
The second matter is this. Earlier in these reasons I referred in detail to the evidence of Mr Friebel, the grader driver, who said that after the truck went past him it was a matter of seconds, five seconds or under, that there was a thud.[196] I accept the time gap was quick between the truck passing and the plaintiff thudding into the tractor, but not as long as the twenty seconds. I estimate from the plaintiff’s account.
[196] T186, T216.
The third matter relates to evidence given by Mr Friebel (grader driver) which I accept, namely, that after the collision the plaintiff apologised for being so close to the back of the truck.[197]
[197] T191, T238-T239.
I have no doubt the plaintiff was driving too fast in the situation he found himself. His visibility ahead was restricted by the truck and some dust. I also have no doubt he was driving too close to the semi-trailer as he got closer to it. Even if he was only 100 metres behind the truck when he last saw it,[198] and at his speed, (of something less than 100kph although I cannot be precise) there was not much margin for error if something out of the ordinary but foreseeable occurred.
[198] T22, T40.
The plaintiff was partly to blame for the situation in which he found himself. He did not protect himself by remaining at a safe distance behind the truck. There was no hurry to be anywhere and he should have kept well back from the truck which he did not do.
In my view there was also a measure of complacency in the plaintiff’s driving. He was almost too familiar with the road and knew of its potential problems but chose to minimise them or ignore them. He claimed the roads in the area were in poor condition and would have known that grading work on this road was amongst the possible hazards he might encounter. He knew of the potential for sudden dust from dust bowls.[199] Of note is his evidence that upon seeing the dust ball rise up just before Steelton Road, he thought someone must have recently graded the road. The plaintiff did not make any or much provision for a sudden dust veil which he knew to be amongst the hazards he might encounter.
[199] T45.
I need to say more about the plaintiff’s driving once he was driving blind. As referred to, he slowed and pulled to the left. Not only did he not know what was ahead of him, (which included the semi-trailer), he did not know what was behind him. He consciously braked, but certainly not heavily, because he feared, as had happened to him previously, that he would be hit from behind. If he had been properly aware of his surroundings, particularly what may have been travelling behind him, he would have been in a position to assess whether applying the brakes more heavily would have avoided any collision. That part of his predicament was also of his own making. As I noted earlier, the authorities, not to mention common sense, make it imperative that a driver drive to the conditions. The plaintiff failed to drive defensively and drove in such a manner that risked a collision with any number of hazards behind the dust screen. The plaintiff put himself in a position that he failed to see the grader’s flashing light.
Although much has been said in this case about what happened after the cloud of dust rose up, more particularly the plaintiff’s lack of visibility, as I have been at pains to emphasize, it is as important, if not more important, to ascertain how the plaintiff came to be in that situation.
I now turn my attention to the defendant Council.
Although I have found the defendant Council grader driver, Mr Friebel, had placed a ‘Grader Ahead’ sign facing the plaintiff, it turned out to be relatively close to the grader at the time of the collision. That was the only relevant sign and, in my view, that was quite inadequate. Even accepting that there are sound practical and policy reasons for not referring to the maximum speed limit on an unsealed road, there were a range of other signs available to the defendant Council in an endeavour to warn road users of hazards and to adjust their manner of driving. The simple ‘Grader Ahead’ sign says nothing about speed, although reducing speed would be common sense. There should have been additional signs further back telling drivers to ‘slow down’ or even giving a ‘low maximum’ speed approaching and through the grading area. Even though there was a sign, Exhibit D20, warning of gravel when going off the bitumen that was a generalised permanent sign by virtue of it being on unsealed road. There should, in my view, have been at least one additional temporary sign, possibly of the same general nature as Exhibit D20, warning of an additional hazard (grader). All drivers may be distracted from time-to-time and with additional signs there is an increased likelihood of drivers being alerted to different risks. A proper risk assessment would have revealed the need for more signage.
It is convenient at this juncture to refer back to a topic mentioned by Jacobs J in Grantham. His Honour said the driver of the car (in which the plaintiff was a passenger) ‘…undoubtedly counted a number of possible dangers, but the possibility of the very danger he encountered is one of which he should have been given more effective warning’.[200] As was also said by Jacobs J in that same case, the fact of a grader working in the middle of the road, called for an adequate and repeated warning of its presence and one sign was not enough.[201]
[200] At p95.
[201] At p94.
Should a water cart have been used to suppress dust?
The initial point to make under this heading is that the preponderance of the evidence, which I accept, is that a water cart was unnecessary for the type of grading work being undertaken that day. It was repair grading of a type that did not require the use of water to bind the surface and aid compaction. Not only was it not the practise across rural council to use water carts in that situation, it was not the way it was done according to those witnesses who gave evidence, who have vast experience in that type of grading.

The separate question is whether, despite the practise, a water cart should have been used to suppress dust, not so much from the grading operation but from passing traffic. Such traffic could take many forms and travel at different speeds. The evidence and common experience would suggest the bigger and faster the vehicle, the greater the amount of dust kicked-up and dragged along by the draughting action of the vehicle.
In my view it was not practical for the defendant Council to use a water cart. It was not practical in a number of ways.
Bearing in mind the large amount of maintenance grading work that was needed to be done on the defendant Council’s unsealed roads, it would be very costly for each grader to have a water cart. Further, less grading work would be done on a daily basis because of the need to continually refill the cart or tanker, sometimes at points distant from the grading work. In essence, the Council would virtually need to use twice the amount of equipment, twice the number of employees for less grading work. It would not be reasonable to expect that of the Council.
Having said all of that, the defendant Council cannot have it both ways. As I have emphasized earlier, a significant contributing factor for this collision was the amount of dust in the air. Even accepting that some of that dust rose up from a spot just before the intersection where no grading was taking place, the semi-trailer also kicked up dust over the graded area. The dust would have been less if the graded area was watered or the defendant Council had put up signs significantly restricting the speed of any vehicle over the graded area. Such a solution would have been relatively easy and readily affordable. If for whatever reasons a water cart was not used, the alternatives to keeping dust suppressed were simple and comparatively cheap.
Conclusion
In my view the defendant Council was in breach of its duty of care and standard of care. In my view the plaintiff is guilty of contributory negligence. I assess that each should bear equal responsibility for the collision and injuries.
As referred to earlier, quantum is agreed at $173,000. The plaintiff is entitled to 50% of that amount which brings it to $86,500, but there is to be a further reduction of 25% for the plaintiff’s failure to wear a seat belt.
There will be judgment for the plaintiff in the amount of $64,875.
I will hear the parties on the question of costs.