Nicholas John Bell v Australian Capital Territory - [2003] ACTSC 55

NICHOLAS JOHN BELL v AUSTRALIAN CAPITAL TERRITORY
[2003] ACTSC 55 (9 July 2003)

PERSONAL INJURY – negligence – duty of public authority to maintain road surface – motorcycle accident – tarred roadway with gravel debris.
PERSONAL INJURY – damages – no issue of principle.

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, 194 ALR 337

Garvan v ACT [2003] ACTCA 4 (27 February 2003)

Inverell Shire Council v Johnson [2002] ACTCA 11 (17 December 2002)

ACT v Badcock [2000] FCA 142; 169 ALR 585

Van Gervan v Fenton (1992) 175 CLR 327

Griffiths v Kerkemeyer (1977) 139 CLR 161

No. SC 30 of 2000

Judge: Higgins CJ
Supreme Court of the ACT
Date: 9 July 2003

IN THE SUPREME COURT OF THE  )
  )  No. SC 30 of 2000
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:NICHOLAS JOHN BELL
Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY
Defendant

ORDER

Judge:  Higgins CJ
Date:  9 July 2003
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered against the defendant in the sum of $454,714.

The plaintiff was injured in a single vehicle accident on the Corin Dam Road, in the Australian Capital Territory, on 31 December 1998. He was the rider of a motor cycle on that road when he encountered gravel on a left hand bend.

It was the plaintiff’s recollection that, observing the bend he was approaching, he dropped down a gear, slowing from about 65 kilometres per hour (kph) to 50-55 kph. As he banked into the bend he slowed further. He then saw gravel across the road. He braked slowing to 40-45 kph, and aimed the motorcycle to follow the tyre tracks in the gravel. The gravel blended in colour with the bitumen surface so that the plaintiff had only 20 m to observe the gravel and take the action he did. He struck the gravelled area, he believed, at 30-35 kph. The rear wheel commenced to slide but then, it seems gripped on the bitumen, flipping the plaintiff over the front of the motor cycle.

In the fall the plaintiff sustained, apart from lacerations and bruising, a serious multiple fracture to the right wrist.

He was hospitalised until 2 January 1999 and his right arm was immobilised in plaster for two months.

During that time he needed the assistance of his wife in washing and shaving. He is right handed.

There were complications. Pins had to be removed from the wrist area. A fragment of bone had floated away. There was muscle wasting, a grating noise, and a lack of strength and mobility in the right arm.

The injury was also very painful. There is arthritic change.

Dr Robert J Scott, occupational physician, considered in his report of 2 February 2000, that the residual disability could be up to 30% Whole Person Impairment (WPI).

At the time of the accident, the plaintiff was employed as a part time postal delivery officer with Australia…

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: [2003] ACTSC 55
Decision Date

CaseChat Overview and Summary

Nicholas John Bell, the plaintiff, sought compensation from the Australian Capital Territory, the defendant, for injuries sustained in a motorcycle accident on Corin Dam Road. Bell claimed that gravel on the road caused his motorcycle to skid, leading to a severe multiple fracture of his right wrist and other injuries. The case focused on whether the Territory was negligent in failing to remove the gravel, which had been present for several months before the accident. The court examined the evidence, including expert opinions and testimonies from witnesses, to determine if the Territory had a duty to inspect and maintain the road more frequently and whether their system was reasonable. The court found that the Territory should have noticed and removed the gravel, which posed a significant hazard to motorcyclists, particularly those adhering to the speed advisory sign. The plaintiff's expert, Mr Sallecchia, identified the gravel as a hazard warranting immediate action. The court concluded that the Territory's failure to remove the gravel constituted negligence. The plaintiff's injuries were severe, leading to substantial general damages, past and future economic losses, and other expenses. The court awarded the plaintiff $454,714 in total compensation.

Orders