Montfroy v Roads Corporation - [2005] VSC 320

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 133 of 2002

GREGORY PAUL MONTFROY	Plaintiff
v
ROADS CORPORATION (Trading as VicRoads ABN 61760 960 480)	Defendant

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JUDGE:	GILLARD J.
WHERE HELD:	BENDIGO
DATE OF HEARING:	27, 28, 29 July and 1, 2 and 3 August 2005
DATE OF JUDGMENT:	24 August 2005
CASE MAY BE CITED AS:	Montfroy v Roads Corporation
MEDIUM NEUTRAL CITATION:	[2005] VSC 320

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TORT – Negligence – Obligations of road authority to repair and maintain roads and erect warning signs – Duty of care to road users – Not a specialised duty – Road authority liable for misfeasance, not non-feasance, in respect of road repair functions. Vehicle skidding on black ice on bridge – Hump on approach to bridge deflecting course of travel – Created by road authority – Sign inadequate to warn of dangerous situation – Driver failed to respond to sign – Sign inadequate – Driver’s negligence not a cause of mishap – Driver not guilty of contributory negligence. Damages – Pain and suffering – Impairment of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin, S.C. with Mr D.J.N. Purcell	Cahills Lawyers
For the Defendant	Mr R.P. Gorton, Q.C. with Mr A.D. Clements	Phillips Fox

TABLE OF CONTENTS

Parties

Basic Facts

The Law – a change and re-introduction

Issues

Duty of Care

Facts

Duty of Care

Negligence

How did the incident occur?

What speed?

Was there a hump and if so, what size?

State of knowledge of Roads Corporation

A. The Bridge
B. Black Ice
C. Hump
D. The Signs

Was the Roads Corporation negligent?

Causation

Damages

A. Injuries, pain and suffering, and loss of enjoyment of life

A. Practitioners retained by plaintiff’s advisers:
B. Practitioners retained by Corporation’s adviser:

B. Loss of earning capacity

(i) Past loss of earning capacity
(ii) Future loss of earning capacity

Total Damages

Contributory Negligence

Conclusion

HIS HONOUR:

In this proceeding instituted by writ, the plaintiff seeks damages for injuries suffered, lost income and impairment of future earning capacity arising out of a collision between his motor vehicle and another motor vehicle. He brings his claim against the Roads Corporation.

Parties

The plaintiff, Gregory Paul Montfroy (“the plaintiff”) was born on 13 January 1959, and is aged 46 years. He has been unemployed since 16 August 2000, the date of the collision, and presently is a disability support pensioner.

The defendant, Roads Corporation which trades as VicRoads (“Roads Corporation”), is a body corporate pursuant to the provisions of the Transport Act 1983 and is the body responsible for the maintenance, upgrade and extension of the State’s declared road network. It is empowered to erect and maintain traffic control items and signs on highways and roads.

Basic Facts

The basic facts which have led to this litigation can be briefly summarised. At 4.00 am on 16 August 2000 the plaintiff was driving his recently acquired 1978 Ford motor vehicle on the Calder Highway some 40 kilometres south…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] VSC 320
Decision Date: 24 August 2005

CaseChat Overview and Summary

Montfroy v Roads Corporation was a decision of the Supreme Court of Victoria. The plaintiff, Montfroy, sued the defendant, Roads Corporation, over injuries sustained in a motor vehicle accident. Montfroy's vehicle skidded on black ice on a bridge. The road authority had created a hump on the approach to the bridge, which deflected the course of travel. An inadequate warning sign was erected, which did not adequately warn of the dangerous situation. Montfroy sued the Roads Corporation for negligence, claiming that the defective roadwork and inadequate warning sign were the cause of the accident.

The legal issues in this case involved the obligations of the road authority to repair and maintain roads and erect warning signs, as well as the duty of care owed to road users. The court had to determine whether the road authority had breached its duty of care to Montfroy by failing to properly repair the road and erect an adequate warning sign. The court also had to consider whether Montfroy's own negligence contributed to the accident.

The Supreme Court of Victoria held that the Roads Corporation owed a duty of care to Montfroy to ensure that the road was safe for use. The court found that the Roads Corporation had breached this duty by creating the hump on the approach to the bridge and failing to erect an adequate warning sign. The court held that the Roads Corporation was liable for misfeasance, not non-feasance, in respect of its road repair functions. The court also found that Montfroy's own negligence did not contribute to the accident.

The court awarded Montfroy damages for pain and suffering and impairment of earning capacity. The court held that the Roads Corporation was liable for the full amount of damages awarded to Montfroy. The court held that Montfroy was not guilty of contributory negligence.

Orders