Nikolic v The City of Tea Tree Gully No. DCCIV-01-260

LYNN NIKOLIC V THE CITY OF TEA TREE GULLY
[2002] SADC 109
JUDGE BRIGHT
CIVIL

On 5^th April 1998, the plaintiff and her husband decided to ride their motor bikes from their home at Willaston to meet friends for lunch at a hotel at Tea Tree Gully. Their route took them along One Tree Hill Road. That road, at one point, takes a sharp right angle bend to the right to travel downhill through Snake Gully and is known locally as the Snake Gully Road. If one proceeded straight on, rather than turning right, one would be on a dirt road called Hannaford Hump Road.
The plaintiff’s husband has had motor bikes for many years. The plaintiff had had one for about a year and a half. She had ridden it most weekends and had covered around 5-10,000 kms. Thus she was not a particularly experienced rider, but was well within the range of those who might be expected to use the road. Her bike was a standard Honda CB250 road bike, fitted with ordinary road tyres. The plaintiff’s experience was wholly, or virtually wholly, in riding on bitumen roads – she had no experience of off road riding.
The day was fine and sunny. The plaintiff’s husband was leading. He came to the corner and turned right down Snake Gully Road. The plaintiff had to stop to allow a car travelling in the opposite direction, out of Hannaford Hump Road, to clear the junction. She then set off after her husband.
From her viewpoint, Snake Gully Road goes quite steeply downhill. It is fairly straight for about 150 metres and then curves to the right. An “Armco” barrier is on the left as the road goes to the right. The road is fairly narrow, with room for only one vehicle in each direction. It would call for a little concentration not to stray onto the wrong side of the road. On the (her) left were a number of large gum trees which cast shadows over the road. On a bright day, as this was, the contrast between shade and light would have been strong.
The plaintiff set off. She did not accelerate away with any particular vigor. I accept her evidence that she did not attempt to catch her husband. He had a much more powerful bike. It was his practice regularly to slow down until he could see her behind him..
Precise distances do not matter, so I am content to talk in round figures. After about 100 metres, she was in 2^nd gear (of 5) and travelling at around 25-35 k.p.h. At that point, she says, she came upon an extensive patch of loose road metal. She was in the middle of her side of the road. At once she had to struggle to keep the bike upright. Substantially, she had lost traction to both wheels.
She says she could barely use her front brake, as the front wheel was already on the edge of skidding. She pumped the back brake, but gingerly, trying to avoid rear wheel skid. Over the next 50 metres, she travelled more or less straight, perhaps veering a little to the left. The road, in cross section, has a fall from the centre to each side which is quite marked. It created, from her point of view, a reverse camber in the right hand bend.
Partly for that reason, and partly because of the curve in the road to her right, she veered to the left side of the road, still fairly upright, and then into collision with the guard rail. She was thrown from her bike and injured. The quantum allowable for her injuries has been agreed. I am asked to determine liability.
The dispute almost entirely centres on the presence, absence or extent of the gravel on the road. I was taken on a view. While the reverse downhill camber and the bend in the road would exacerbate the effects of excessive gravel, the basic layout of the road and of the guard rail are not, in my view, such as to give rise to any cause of action in themselves.
The defendant is the council responsible for the road. It had contracted with a road builder to resurface a substantial section of Snake Gully Road. This accident occurred between the time of laying the new surface and that of painting new lines on it. The new surface was a “Sprayseal” consisting of a first spray of tar, on which road metal was spread and rolled, followed by a second spray of tar on which a layer of finer metal was spread and rolled.
In this method of construction, not all the gravel spread will be pushed into firm contact with the tar. Most will be, but, of the rest, the degree of contact will vary and some will be completely loose. Loose metal will, over time, either be thrown off the road by passing traffic, or pushed down into a firm bond.
If, as was the case here, the road is to have lines painted on it, it has to be prepared. Here there were to be lines at the centre and at each edge of the bitumen. It is obvious, and I was specifically told, that there is no point painting loose gravel. Before line-marking, the road must be swept back to a firm base.
The accident occurred on a Sunday. The road had been resurfaced a few weeks earlier. Arrangements had been made for the line-marking to occur over the next couple of days – and it did occur. As part of the process, a council employee, Mr Symes, had used a council sweeper to prepare the road on what he believes was the previous Friday. He said he swept it clear. Those who marked the lanes said it was clear next Monday – they did not need to sweep any metal manually off the road in the vicinity of the accident when they painted it.
The sweeper was a large truck – mounted device. It had a large cylindrical wire brush mounted horizontally, which rotated at such a speed as to move loose material to the rear as the sweeper moved forwards. The brush was kept in contact with the road by computer controlled hydraulics. Detritus was moved to one side by the angle of the brush to a point where it was sucked up by a powerful vacuum cleaner. The vacuum cleaner did not cover the whole width of the broom. I was told the vacuum cleaner could easily suck up a house brick. The sweeper also carried about 200 litres of water which could either be sprayed directly onto the road, or, as was the case here, into the entry to the vacuum cleaner to cut down dust.
When sweeping, the sweeper is driven at only a very slow speed. The operator monitors his work through external mirrors on either side of the cab and also by a video camera mounted at the back of the sweeper to cover the blind spot between the two mirrors and which is viewed on a monitor in the cabin. It is easy to see if material is missed and to reverse back to correct that.
Mr Symes told me he spent about 5 hours sweeping the road on that Friday. He began with a pass up the hill on the extreme left, then came back down the extreme of the other side. He went up, and back again inside, but overlapping the previous sweeps. Finally, he went up the centre of the road, overlapping the edges of the area already swept. He says that he got a good result and that, when he left on Friday afternoon, the surface was firm and clear of loose metal. He says that, before he swept, there was a lot of loose metal, but he removed and dumped it. He only swept the bitumen. He did not remove material from the verge.
His evidence leaves open the possibility that, after he left, and before the accident, traffic loosened more metal in the bitumen, or displaced it from the verge. It is a road bearing a fair bit of traffic. However, the evidence of the road markers that, on Monday, they were able to paint without further preparation – and that they would not and did not paint on loose material – would seem to negative that.
The plaintiff says she got into thick gravel – less thick at the centre of the road and more thick at the edge. It began at the spot where the roadworks began. She did not see it before she was in it.
Her husband soon realised she was not following and went back. He tried to stand his bike on its side stand (left side) facing uphill on the (to him) right side of the road near the place of the accident. He confirms that there was a lot of gravel. His bike would not stand properly. It rolled back down the hill with its stand sliding in the gravel. He attributes this to the depth of the gravel, but I suspect it could be at least partly due to the camber of the road holding his bike in a more upright position than if it was on level ground. That would reduce the weight on the side stand and reduce its grip.
He then rode his bike to a point about 50 metres downhill from the accident where he could get off the road and onto level ground. He walked back to his wife. He said that his boots slipped on the gravel as he walked up the hill; he could not get a proper grip.
Mrs George was the driver of a car which was following the plaintiff. She stopped to help and to call an ambulance. She was adamant that there was a lot of gravel on the road. She was a nearby resident and had been annoyed for some time by the amount of gravel on the road. There is no reason to doubt that there had been a great deal of gravel left by the road builders. Is she recalling the state of the road at the time of the accident, or its state before it was swept? While that must be a possibility, she was quite clear that she was describing its state on the day. I am not prepared to dismiss her evidence on this basis.
Another dispute in this case is about the presence of warning signs. She is adamant there were none. That was also something about which she had been cross. Other evidence suggests there were signs there. I will come to it later.
Two ambulance officers gave evidence. Of all the witnesses, they were the most independent. They were not annoyed or wanting to prove any point. The ambulance was parked shortly uphill from the accident, facing uphill on the wrong side of the road, to protect the plaintiff from traffic. They had to walk down the hill, check the plaintiff, return to the ambulance, get a stretcher (from the left side of the ambulance, i.e. closer to the centre of the road than the edge), take it to the plaintiff and then transport her back to the ambulance.
They clearly remember excessive gravel. There is no reason to doubt that there may have been gravel swept and thrown off the bitumen onto the narrow verge between the road and the guard rail. The driver of the ambulance may, at first have walked down the right side of the ambulance and in the verge. The other officer seems to have been on the road at all times. Both were on the road when actually dealing with and transporting the plaintiff. They both say the gravel was thicker at the edge of the road. Both say they found it slippery to walk on the road because of gravel. One said that gravel was uncomfortable on his knee as he knelt by the plaintiff. As it was said that the edge of the road was obscured by gravel, it is possible he was then off the bitumen, but it is not likely.
I note that those who say there was gravel on the road talk of thick gravel, while those who say there was not talk of no gravel. It does not appear to be a case where differing descriptions are being given of the same, but somewhat unquantifiable, amount. I must also note that I do not think anyone tried to tell me lies.
The plaintiff did not see the gravel before she hit it. It was suggested on her behalf that warning signs might have helped. She says she saw none.
The defendant claims that there were numerous signs. On One Tree Hill Road, before she got to the corner to turn into Snake Gully there was, on the left of the road, a “Loose Stones” sign (a T3.9). Then, in Snake Gully, just down from the corner, there were two more such signs, one on each side of the road. At that point there was also, on the left, a “No Lines Marked” sign, followed by a further sign proclaiming “Traffic Hazard Ahead” (T1.10).
The plaintiff and her husband say they saw no such signs. Mrs George was annoyed because they were not there and should have been there for weeks. The ambulance men have no recall of signs, but, I suspect, would have had little interest in that topic, though one, Mr Adams, frequently used the Snake Gully Road on his way to and from work and stated his belief that, for weeks, there had been few signs.
The “council” witnesses said that there were signs, though there were differences between them. Mr Symes thought there were “Loose Stones” signs on either side of the road uphill from the start of the work. They were signs placed by the contractor, rather than by council. He did not recall a “Traffic Hazard” sign. He believes the two signs were still there when he happened to drive along the road for private purposes a couple of weeks later – he was surprised they had not been removed. But that is not consistent with evidence that they were removed on the 8^th, which is also shown in a video taken that day.
Some road consultants had driven the road, taking a video of it, for purposes unconnected with the accident, on 8^th April, three days after the accident. By then lines had been marked, from which it follows that one would expect the road to have been clean. The video was taken through the front window of a car apparently moving at “metropolitan area” speed. While good in showing the layout of the road and of surrounding fixtures, it did not show the road surface clearly enough for me to see whether the gravel on the surface was fixed or loose. It did not depict any relevant signs.
Mr Konecny was the council civil projects coordinator who dealt with the contractors in relation to the road resealing. He knew that certain signs were required. Both the layout of the signs by the road, and the nature of the signs to be used are covered in certain Australian Standards. He confirmed with the contractor that they would be placed as I have noted. He had a sketch plan prepared at the time. He visited the site from time to time. He says they were there. In particular, he arranged for the contractor to leave its signs in place after it finished its work and for long enough for council to use its own employees to paint the new lines. He noted that, prior to the council sweeping the road, it was also swept, with a less sophisticated machine, by the contractors. Their machine swept loose material to the edges – hence the deposits on the verge. That sweeper also left a lot of loose material generally over the bitumen.
Mr Settre was the contractor’s foreman on the resealing. He was on site. He says he put in the signs claimed by the defence to have been there. He knew that there were specific requirements about what signs were needed, and where. He says that, on 8^th April he was directed to, and did, collect the signs to return them to his depot. None were missing, or had been moved. It would explain why no signs showed in the video, apparently taken an hour or two later. It is not compatible with Mr Symes’ belief he saw them a couple of weeks later.
Mr Harris and Mr Fox marked the lines. They tried to mark spots on the road to guide the line marking machine during the week before the accident. There was a lot of gravel on the road. They could not adequately spray paint spots, or measure from the edges of the bitumen, to locate the centre line, because of the amount of loose material. They put in the request that led to Mr Symes being directed to sweep the road. Harris and Fox returned on the Monday (after the accident), when the road was clean – so clean, they said, that they did not need to remove debris by hand, though they carried a shovel and broom for that purpose. They said that, had there been any significant problem, they would not have dealt with it by hand, but would have asked for the vacuum sweeper to return. There was no problem and they did not ask for that. I cannot imagine them sweeping away by hand the amount of gravel described by the plaintiff’s witnesses.
Mr Harris was asked about signs. He did not recall any of the alleged signs, but claimed to recall a “slippery road” sign in the form of a car skidding (a T3.3 sign). He confirmed that a continuous line was painted at the edge of the bitumen above, below and through the location of the accident. It shows in the video.
Mr Fox also remembered only one sign. It was either a T3.3 “slippery road” sign, or a T3.9 “loose stones” sign. It was in Snake Gully Road, to the plaintiff’s left as she approached the new work.
Mr Spencer was the dogman who warned approaching traffic of the lane marking work. He, too, denies any need to clean the road before painting lines. He recalls a ‘loose stones” sign on the left at the top of the hill. It was a vinyl “Corfu” (like corrugated cardboard) sign nailed to a tree. It moved in the breeze. No one else recalls that sign. As he had to stand on the road to warn oncoming traffic, he walked the length of the job in the course of the marking. He says it was clear. The dogman at the other end of the marking was Mr Waters, who was not called.
So there is as much, if not more, confusion about the signs as about the presence of gravel. I have gone through the evidence about signs partly because the presence or absence of them may be relevant to liability, but also because, if one group of witnesses had proved more reliable, that might have affected my judgment about who is more probably correct about the gravel. With such variation between them, the evidence for the defence does not enable me to conclude that their evidence about signs enhances their evidence about gravel.
Nor am I critical of them for this. It is clear what was supposed to be there. It is far less clear that it was there. All the defence witnesses work on roads day in and day out. It would be hard to remember particular road works signs after four years. Mr Symes’ recall of seeing a sign weeks later is incorrect.
Mrs George had particular reason to recall. She had been cross about the absence of signs for some weeks. One ambulanceman, Mr Adams, used the Snake Gully Road to get to work – at least when rostered in Modbury. It is probable that that was the case for at least some of the period of the road works. He did not have clear recall of the signs on the day (and he was not driving the ambulance). But he did recall that, when he went through at other times, there may have been signs. The plaintiff did not see any signs – but did not look about after the accident. Her husband did, and saw no signs.
On the balance of probabilities, I find that at least most of the signs that should have been there were not. I am not sure that it matters much. The plaintiff was not going fast. There is nothing to suggest either that she would have gone more slowly or have controlled her bike better if she had seen a sign.
Neither she nor her husband noticed loose gravel – she before it was too late, he at all. He appears to have been on or over the centre line at the relevant spot, while she began in about the middle of the left side of the road. He had no problem. I would guess that it would be difficult to see the difference between loose and fixed gravel – though the difference would be obvious as one rode through it. Visibility may have been impaired by dark shadows from the trees on a sunny day.
In the scheme of things I think the absence of signs was, at best, a rather minor matter. The presence of excessive gravel seems to me much more important.
The witnesses for the plaintiff all had reasons for their recall. They were clear. The council line markers and Mr Symes confirm that there had been a lot of gravel still on the road during the week before the accident. The light sweeping by the contractor had not removed it.
If I only had the evidence of Mr Symes that he had swept the road clean to compare with that of the plaintiff’s witnesses, I would, with no disrespect to him, regard him as outgunned. The mere fact of the accident, as described, apart from any of the other evidence would support that.
To my mind, the really significant defence evidence is that of the line marking gang that, on the very next day, and without any evidence of intervening work, the road was not merely clean, but clean enough to paint.

I have considered whether the plaintiff, through momentary inattention, ran off the edge of the bitumen and then into gravel or other loose material on the narrow verge between the bitumen and the guard rail. That area is very likely to have had a good deal of gravel in it. That is not what the plaintiff says. She describes her precarious balance for some little time, as she gradually ran off the road. Mrs George, who was following in her car, confirms the plaintiff’s version.
Mr Hall, an engineer with expertise in both general traffic accidents and, specifically, in motor cycling, said that the way the plaintiff described her accident is exactly how he would expect things to happen if the rider of a motor cycle hit gravel on that downhill slope, negative camber and right hand bend. He said that an experienced dirt bike rider, on a bike with knobby tyres may have avoided trouble, albeit with difficulty. He thought a relatively inexperienced rider, used only to bitumen, on a bike with road tyres, would have had great difficulty.
In the end, it seems to me that the accident did occur, more probably than not as described by the plaintiff and by Mrs George. Their descriptions of the gravel are much the same, as are those of the plaintiff’s husband and of the ambulance men. There must have been more gravel than is recalled by the line marking gang, at least in the general vicinity of the accident.
I cannot see how it could have disappeared overnight. Only another major sweeping could have done that, and there is no evidence it happened.
I accept that the line markers did not manually clear much, if any, debris. I can only conclude that they must have painted over more loose material than they now recall. Could some combination of the hill, the camber and the corner have defeated the hydraulic controls of Mr Symes’ machine, resulting in a deposit of gravel on the outer and downhill side of the bend, even though the rest of the road was clear? The broom was cylindrical. It could not exactly match the rather marked curvature of the road in cross section. If the centre of the broom was to maintain correct pressure and not to dig up the new road, each end (or one end) must have exerted less pressure. Alternatively, if it was to sweep accurately at the edge, would the other end be raised? This was not dealt with in evidence. There is no evidence of malfunction.
Arguably, the line markers have professional reasons to claim the road was clean, though I saw no sign that that is what any of them were doing. They all looked decent, straightforward people.
Mr Cuthbertson, for the plaintiff, urged me to consider the fact that, at least for the plaintiff, her husband and Mrs George, what happened was an event quite out of the ordinary. They had every reason to recall the circumstances. There was little reason for the council witnesses to do so. He suggested that it would be natural for them each to believe they had performed their duties efficiently – that the road was well-swept and that the lines were painted only on clear roadway, when the truth might be that their work was not perfect.
While conceding that the line markers would not have forgotten having to do a lot of manual sweeping, they could have forgotten small amounts. To paint the edge line, and to measure from the edge would not require sweeping the whole road – merely the edge, and, perhaps not very much of the edge. He suggested that, perhaps only one of them did any sweeping – conceivably the dogman who was not called – but, in any event, by one who has forgotten it and who was not particularly noticed by others as he swept.
The point he sought to make is that it seems impossible to reconcile the evidence of both sides. At least one version must be wrong, even if the source of error cannot be identified. Here, he submitted, it was easier to see how error could have crept into the recall of the lane markers and of Mr Symes than into that of the plaintiff and her witnesses. The whole dynamic of the accident suggests a loss of control in gravel. If one has to choose – and I do – whether it is more probable than not that gravel was there, he submits that it is more probable that it was. I agree.
In my opinion, on the balance of probabilities, the plaintiff did fall in gravel on the road.
It is my general experience that, at least on country and near country roads like Snake Gully Road, one comes upon patches of gravel, mud, or other detritus from time to time. All sorts of weather and traffic conditions can lead to this. One does not automatically conclude that the responsible council ought to be liable for any resulting damage. No one expects a road to be entirely free of gravel or other small objects. It is a question of degree.
A stage will be reached where anyone would say that there was too much debris. It may be that the location of the debris will mean that what would not be unreasonable in one spot on a road will be in another. What is acceptable on a little used dirt road will not be acceptable on a busy suburban road.
Mr Konecny explained that the defendant had a program of checking and sweeping roads. Clearly he felt that that was necessary. That program was chiefly designed to deal with ordinary results of ordinary use of a road. One regularly reads in the press of specific spills being cleaned up.
Here we are considering the safety of gravel specifically placed on the road at the instigation of the council, and which it actually knew (at least until the last day or so) was there. This is not a case where one needs to consider the adequacy of a system to detect problems arising unexpectedly.
I note, in passing, that, if on the Friday evening before the accident, a council officer had received from Mr Symes a report about his sweeping, consistent with what is before me, it might have been perfectly reasonable to assume that there was no danger. However, if, for whatever reason, the truth of the matter was as the plaintiff’s witnesses suggest, it would seem to me that Mr Symes must have been negligent in the way he swept and careless in the way he checked his work by mirror and TV, and by direct observation, both as he swept, and as he drove back down the road after his last sweep up the centre of the road. The council would be liable for that.
The remaining question is whether the amount of gravel at and for a short distance above the accident point gave rise to an unreasonable danger in all the circumstances.
We know from the line markers that it was, a few days earlier, too thick at the edge for them to be able easily to locate the edge of the bitumen. The plaintiff and her husband have presented photos of a small patch of gravel which they placed on the road to show how thick they remember it as being (the reconstruction being years after the accident). That is consistent with the picture I got from the line markers.
The plaintiff’s husband and the two ambulance men talk of gravel so thick as to make it slippery underfoot. The slope down the road is steep, but it is not a slope that presented any problem at the view, when the surface was clean. Mrs George described thick gravel. She could not see the edge of the bitumen. Gravel was all over the road. She was annoyed and had commented: “Someone is going to have an accident here.” Mr Winton, ambulance man, thought there was enough gravel to be consistent with the plaintiff’s history to him at the scene of sliding on gravel into the guard rail. Mrs George described the plaintiff’s actions as she followed her. It is a very clear description of a person losing control of a motor bike in loose gravel.
I conclude that there was sufficient gravel to constitute an unreasonable risk, when combined with the slope, camber and curve of the road at that point. I conclude that there was a duty owed by the council to road users, including the plaintiff, to avoid or prevent such a situation. It was readily foreseeable that an accident of the sort which actually occurred was not unlikely. To permit the situation to exist when the plaintiff arrived on the scene was a breach of its duty to her.
I note that the defendant pleaded a common law immunity in relation to non-feasance as a highway authority. Without considering whether the recent views of the High Court can be evaded by some argument about retrospectivity (and I am not persuaded that they can be), it is sufficient to conclude that, in this case, the damage resulted from positive misfeasance. The initial depositing of the gravel was a positive act. A failure to control and clear it in the course of a road making operation is also part of the positive act of road repair and is not non-feasance.
The defendant has asserted in its pleadings that the plaintiff was guilty of contributory negligence in that she, (1) failed to heed warning signs, (2) drove at a dangerous speed and (3) drove in a reckless manner. I have concluded that signs were not relevant. The plaintiff was not travelling quickly.
If I had a criticism of her, it would be for her failure to notice the presence of the loose gravel until it was too late for her to avoid it. Faulty lookout has not been specifically pleaded. I think I should attempt to do justice between the parties and not be too insistent on detail in the pleadings. I am prepared to assume that to have a faulty lookout could be classified as recklessness.
I have concluded that few, if any signs were present. Even if I am wrong, I agree with Mr Cuthbertson that they, taken together, indicated new roadwork, highlighting the possibility of loose stones being thrown up. Unless one actually saw that gravel was loose on the road, one would not advert to particular danger of skidding. Gravel that was firmly adhering to the bitumen would look the same as gravel which was not.
I find it hard to believe that the gravel could have been as thick as the plaintiff claims over the whole surface – for a variety of obvious reasons. I assume her photos to indicate the depth at the edge and, given the passage of the years, perhaps to exaggerate it.
Of course, she and others say it was not an even coat; it was thicker at the edge. I cannot say how deep it was at the point where she first encountered it. It can’t have been very thick in the centre of the lane, or one would have expected traffic to have moved it into uneven heaps or rows, which would have been easy to see, and no one suggests it was like that.
It may be that the shadows cast by trees on a bright day made it hard. But I think that she should at least have been able to see that she was entering a stretch of new road surface, a stretch of road with no lines on it. She seems to have been caught completely by surprise. Even as she lost control, she did not actually see the gravel.
Whether by good luck or good fortune, her husband had followed a different line through the corner only moments before. He had not detected loose gravel in his course. Despite that, I think that the reasonable motor cyclist in the position of the plaintiff would have been in a position to pick her path with greater care and would have been more alert to danger.
Once she found herself losing control, I do not think she was negligent in the way she tried to control her bike.
I hold that the plaintiff was partly responsible for the accident. I attribute 15% of the blame to her.
The plaintiff will have judgment for 85% of her agreed damages.

[2002] SADC 109

13 August 2002