O'Ryan v Commissioner of Main Roads

[1992] QCA 397

IN THE COURT OF APPEAL	[1992] QCA 397
SUPREME COURT OF QUEENSLAND	Appeal No. 67 of 1992
BETWEEN:

JOHN CHARLES O'RYAN

(Plaintiff) First Respondent

AND:

THE COMMISSIONER OF MAIN ROADS

(First Defendant) Appellant

AND:

WAGGAMBA SHIRE COUNCIL

(Second Defendant) Second Respondent

Appeal No. 68 of 1992

BETWEEN:

JOHN CHARLES O'RYAN

(Plaintiff) First Respondent

AND:

THE COMMISSIONER OF MAIN ROADS

(First Defendant) Second Respondent

AND:

WAGGAMBA SHIRE COUNCIL

(Second Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 19th day of November 1992

These are appeals by both defendants against a judgment against them for $1,646,018.30 damages for personal injuries, the learned trial judge having found both defendants negligent and having declined to find contributory negligence against the plaintiff. Each appellant contends that it is not liable at all; alternatively, that the plaintiff (the respondent) was guilty of contributory negligence. We will refer to the Commissioner of Main Roads as the first appellant and to Waggamba Shire Council as the second appellant.

The action arose out of a collision at about 8.40 p.m. on 19 December 1980 on the Cunningham Highway west of Yelarbon within the Waggamba Shire, between the respondent's Triumph motor vehicle then being driven by the respondent in a westerly direction and a Volkswagen Kombi van. The Volkswagen Kombi van had been travelling in the opposite direction and the collision occurred on its correct side of the road, the respondent's vehicle having followed a course not clearly defined in an interval immediately before the collision occurred.

Although the respondent had no recollection and his sole passenger very little recollection of events leading up to the collision, his Honour inferred that the Triumph had got out of control upon a floodway on the highway upon which water was lying. His Honour found that the water caused the respondent to lose control of the Triumph and that the presence of the water on the floodway was caused by the negligence of each of the appellants.

The Cunningham Highway was a declared main road. At all relevant times there was on that road, immediately west of Yelarbon, two floodways, one at 2.9 kilometres from Yelarbon and another, at the location in question, at 4.2 kilometres from Yelarbon.

His Honour found that on the night in question dry weather conditions prevailed as the respondent approached the relevant floodway. By that his Honour meant that there was no water on the roadway, including on the floodway closer to Yelarbon, and that, although because of rain which had fallen about three days earlier the surrounding countryside was probably wet, the respondent could not have observed that because of limited visibility at night. His Honour also found that the respondent, as he approached the floodway, was travelling at a speed below the speed limit and consequently at a reasonable speed having regard to the fact that the road was then straight.

The learned trial judge found that the first appellant was negligent in the design and construction of the floodway, and the second appellant negligent in its construction; and found both appellants negligent in failing to erect adequate warning signs. He found that the negligence of each appellant was misfeasance. The respondent's allegations with respect to inadequacy of warning signs were added on the first day of trial over objection by both appellants, objections which were persisted in on appeal. It is convenient to defer consideration of those objections until after we have dealt with the appeals so far as they relate to the allegations of negligent design and construction of the floodway.

The floodway had been constructed in 1965 by the second appellant substantially in accordance with a plan prepared by the first appellant in 1964. It replaced a floodway which had been constructed at the same location in 1955.

The second respondent provided day labour, including the services of its engineer, Mr Forbes, for which the first appellant paid pursuant to an arrangement, which appears to have been contractual, made in an exchange of correspondence between the appellants. This arrangement was probably made pursuant to s. 19B of the Local Government Act 1936 and s. 27 of The Main Roads Act of 1920. See also ss. 35(7) of the Local Government Act 1936 and 35 of the The Main Roads Act of 1920.

The allegations against the appellants, so far as they relate to design and construction, were as follows:

(a)	Constructing the floodway in the vicinity of which the collision occurred in a place where it was unsafe to do so;
(b)	Constructing the floodway in such a manner that water might lie upon or pass over the floodway, but be obscured to the view of the driver approaching it from the south east;
...
(d)	Failing to provide a gradual as opposed to a steep descent into the floodway;
(e)	Failing to provide a sufficiently wide floodway to enable water to spread across it to a shallow depth only;
(g)	Designing and/or constructing the floodway in such a manner that water tended to lie upon the surface of the road in the floodway instead of draining away promptly after rain.
A. The design aspects are:-

(i)  not eliminating the floodway with increased culvert capacity;

(ii) locating the low flow culvert;

(a)	not under the lowest part of the floodway;
(b)	under a point where the road level was higher than the lowest part of the floodway;

(iii) separating the low flow drainage

path and the overland flow pass;
(iv) not designing for free draining;

(v)  not designing for free draining with a level or likely or foreseeable level of maintenance of the downstream drainage path and the table drains;

(vi) not making any flood run off calculations;

(vii) not making any or any necessary or proper hydraulic calculations;

(viii) not making any or any necessary or proper evaluation of the volume or time of flood water following rain in or preparatory to the said designing.

B. (i) the construction aspects given in respect of design in the previous item (A) are severally and in combinations thereof the aspects of the construction relied upon;

(ii) the camber of the floodway with the resultant variation in depths of water are the aspects of construction of the floodway which cause water to tend to lie on the road instead of draining away.

(h) At the reconstructions respectively in 1964,
1976 and 1977 failing to reconstruct the
floodway in such a manner that water did not
pond on the road surface when those
defendants, or either of them, knew the road
was dangerous by reasons of such ponding, and
to remedy the design aspects particularised

under (g) item A(i) to (viii) and B(i) and

(ii).

The most significant of these, for present purposes, are paragraphs (g)A.(iv), (v), (vi), (vii) and (viii), (g)B.(i), and (h). In short, the main allegation was that the design and construction of the floodway was defective in that it should have been designed and built six inches higher than it was; that this defect in design and construction was negligent; and that it caused water to pond on the floodway after rain, which in turn caused the respondent to lose control of his vehicle. His Honour made the following relevant findings in this respect:

1.   The defendants knew or ought to have known that with the floodway designed and built as it was, water would as a result, be ponded on the bitumen surface for some days after a moderate rain and so present a significant hazard to motorists and a danger to the foundations of the road itself, resulting in premature depressions and failure of the road surface.

2.   The risk of harm to motorists was great in the circumstances prevailing.

3.   The defendants, having embarked on the redesign and reconstructions of this floodway, were under a duty of care to act reasonably in that design and construction so as to prevent unnecessary harm to users of the floodway.

4.   The standards prevailing at the time required that floodway be designed and constructed to suit the particular floodway. This one was not.

5.    The design of the floodway only three inches above the pre-existing level was negligently prepared in that no appropriate levels were taken downstream or sufficiently downstream so as to ensure that the floodway would be properly designed and built so that it would promptly drain. It should have been designed a further six inches higher, having regard to the downstream levels of this watercourse. The first defendant was accordingly negligent and was further negligent in not ensuring that the construction plan contained appropriate downstream levels as a guide to the constructing authority. Had downstream levels been taken, the floodway would have been designed not three inches higher but nine inches higher.

6.    The fault in the design was or should have been clearly obvious to the supervising engineer when the floodway was being constructed by the second defendant.

Amendments to the design could have been sought and made. Mr Forbes did this with other floodways. He probably did not take levels sufficiently far downstream in order to satisfy himself that the floodway would properly and promptly drain. He should have done so, and sought an amendment to the design.

If those findings were justified, both appellants were negligent and their negligence caused the collision. However, the appellants contested all of those findings. And even if they were correct, the appellants argued, they established no more than non-feasance in respect of which they owed no duty of care. Ponding existed before this floodway ("the 1965 floodway") was built in the sense that it occurred on the floodway which it replaced ("the 1955 floodway"). Not only did the 1965 floodway not produce any new or additional danger, they argued, but it actually reduced ponding in the sense that ponding was less frequent on it than on the 1955 floodway. Its failure to eliminate ponding in the circumstances prevailing here, as a floodway six inches higher might have done was insufficient, the appellants said, to make them liable.

Though the 1965 floodway was designed to be and was placed in much the same position as the 1955 floodway, it was significantly different in design in a number of respects.

It was, as his Honour's findings indicate, three inches higher than the 1955 floodway; instead of a 10 foot flat section at the lowest part of the carriageway, the line of the carriageway was, in section, a continuous curve; and the fall in the carriageway to the lowest part was more gradual (approximately 1.6 ft over 170 ft instead of 1.6 ft over 130 ft). In order to construct it, the 1955 floodway was demolished.

The catchment area for the water which, during and after rain, went over the floodway was to the north so that the water travelled from north to south. To the south of the floodway the land was flat and swampy; so flat that at a distance of 130 metres south of it, the land was only 10 inches lower than the crown of the road at the lowest point of the 1965 floodway and level with the bottom of a box culvert which ran beneath one haunch of that floodway.

The night of the accident was approximately three days after the last of moderate rain had fallen in the catchment area.

The evidence of eye witnesses was that there was water lying on both sides of the road surface in the floodway, but that it did not reach as far as the crown of the road. Mr Hopkins, an engineer whose evidence his Honour substantially accepted, was of the view that this, together with levels which he established, indicated that water on the night of the accident was ponding on the downstream side of the carriageway of the floodway, the side on which the respondent had been driving. The local police sergeant also said that water lay on the 1965 floodway for up to a week after even moderate rain; and that it retained water on its surface for longer after rain than the floodway closer to Yelarbon. It is reasonable to infer, as the second appellant accepted in argument, that ponding would have been even more frequent on the 1955 floodway than on the 1965 floodway because the former was three inches lower than the latter.

Mr Hopkins said that the floodway was designed and built too low having regard to the extreme flatness of the downstream area for several hundred metres from the floodway and the consequent difficulty of water getting away from the bitumen surface. It was inevitable, he thought, that at the level at which it was constructed water would pond on the bitumen for some days after a moderate fall of rain. Although he came to this conclusion only after a study of the contours downstream, he thought that that ought to have been apparent to the first appellant when it designed the floodway and to the second appellant when it came to build it. This conclusion was supported by his opinion that, in order to ensure that the culvert could drain adequately the first appellant, or failing it the second appellant, ought to have run a line of levels downstream which would have alerted it to the fact that the floodway as designed was too low. Both the design engineer employed by the first appellant, and the construction engineer employed by the second appellant, recognised the need to take levels on the downstream side of the floodway. Although neither could recall whether he did in fact take such levels, it is plain from Mr Hopkins' evidence that if either had done so those levels would have shown the need to construct the floodway at a higher level than that to which it was constructed. Moreover the first appellant had in its possession a 1937 survey which showed that area to be extremely flat; and the extreme flatness of the area and its tendency to retain surface water ponding onto the 1955 floodway for days after only moderate rain were observable to both appellants over the period between 1955 and 1965.

In our view, therefore, his Honour, having accepted Mr Hopkins' evidence in these respects, was justified in concluding that the first appellant, by designing the floodway at the level at which it did, was negligent, and, it follows, was negligent in requiring its construction at that level. And on that evidence his Honour was also justified in concluding that the second appellant was negligent in constructing the floodway at that level, at least without first, having taken levels downstream, warning the first appellant of the likelihood that a floodway constructed at that level would result in water ponding on its bitumen surface for some days after even moderate rain had ceased to fall in the catchment area. It was common ground between the parties that a floodway an additional six inches higher, that is nine inches higher than the 1955 floodway, would have avoided prolonged ponding on its surface after only moderate rain and that this could have been achieved at very little additional expense.

The appellants also contended that, even if they were negligent, their negligence did not cause the collision because the presence of water on the floodway did not cause the respondent to lose control of his vehicle. The appellants sought to establish, on the basis of some eyewitness evidence as to the depth of water on the roadway, and some evidence of a traffic engineer as to the minimum depth necessary to cause a driver to lose control of his vehicle, that the depth of water through which the respondent's vehicle probably travelled was insufficient to cause loss of control. As to the former there was, not surprisingly, conflicting evidence about the depth of water on the floodway that night. For example, Mr Deans, a tow truck operator, estimated its depth at three to four inches at the bitumen edge tapering to nothing at the centre. As to the latter, although on a view most favourable to the appellants the traffic engineer said that 50 mm was the minimum depth of water necessary to cause instability, other evidence of his indicated that this was not susceptible of precise calculation and, in addition, that a difference in depth between water under the left and right hand sides of a vehicle could cause instability.

There was therefore evidence upon which his Honour could have concluded that the water was of sufficient depth or of sufficiently variable depths to cause loss of control.

Moreover, the presence of water on this floodway must have been totally unexpected. There was none lying on the previous floodway, the road surface was dry and, as his Honour found, though the surrounding countryside may have been wet from previous rain the respondent could not have observed that because it was dark. It was therefore reasonable for him to infer that the respondent lost control because of the water on the floodway.

We turn now to the argument that the appellants' negligence consisted only of non-feasance. We are prepared to accept for this purpose that both appellants were, in the exercise of their relevant powers in designing and constructing this floodway, highway authorities and as such liable only for misfeasance.

"It is well settled", Sir Owen Dixon said in Buckle v. Bayswater Corporation (1936) 57 C.L.R. 259 at 281, "that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway." But that principle speaks only of omissions to act. It says nothing of the liability of a highway authority for negligence in construction of a road or a structure on it.

When a highway authority, having power to do so, embarks upon the construction of a road or a structure on it, ordinary principles of negligence apply to that construction and "to execute authorised works without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury": ibid at 283-4; see also at 286. And see Gorringe v. The Transport Commission (Tas.) (1950) 80 C.L.R. 357 at 364-5 per Latham C.J. (citing with approval Lush J. in McClelland v. Manchester Corporation (1912) 1 K.B. 129 at 133) and at 378 per Fullagar J.

In the present case, once it is accepted that the appellants' negligence is properly characterised as negligence in the design and construction of a floodway, that this negligence gave rise to a substantial risk of injury to motorists using the floodway and that that risk could have been avoided at minimal cost, both appellants are plainly liable. We think that each of these propositions was established by evidence which his Honour was entitled to accept.

Numerous other cases were cited to us. However, we see no point in discussing them. The principle, so far as it is presently relevant, is clear whatever difficulties may be encountered from time to time in its application; as to which see Gorringe at 380 per Fullagar J. and Hocking v. Attorney-General (1963) N.Z.L.R. 513 at 535.

His Honour also found two other acts of misfeasance. They were:

(a)	the creation of a dip which did not exist before, thus affecting a motorist's ability to see the floodway or water in it at night; and
(b)	the raising of the level about three inches above the pre-existing level without an increase of the culvert capacity, thus increasing the length and depth of ponded water along the highway which amounted to an increased hazard to motorists.

We think that there is a good deal to be said for the criticism by the appellants of the factual accuracy of each of these findings. However, in view of the conclusion which we have already reached, we do not think it necessary to say any thing further about them.

If the appellants are liable for the negligent design and construction, and construction respectively, of the floodway, it is unnecessary to consider the allegations of the respondent and his Honour's conclusions that the appellants, or either of them, should have placed additional permanent or temporary warning signs at the approach to this floodway. If we are wrong in the conclusion that they were so negligent, the failure to place adequate warning signs at the approach to the floodway was plainly non-feasance for which the first appellant as a highway authority was not liable. As to the second appellant, whatever its tortious liability as a contractor may have been for mere omissions during or arising out of the performance of its contract (as to which see Drake v. Bedfordshire County Council (1944) 1 K.B. 620; Quinn v. Ministry of Commerce and Armagh County Council (1954) N.I.L.R. 131), the only capacity in which it could be said that it had a duty, or even a power, to erect permanent or temporary warning signs was as a local authority having the power to do so in its shire. In that capacity it was not liable for mere non-feasance.

Consequently there is no need to consider whether his Honour was wrong in allowing the respondent to amend his statement of claim in order to allege a failure to place adequate warning signs at the approach to the floodway.

The final question concerns the allegations of contributory negligence against the respondent. Once his Honour's finding of fact are accepted, we do not think that these allegations can be sustained; and we do not think that his Honour's findings of fact should be disturbed. The appellant was travelling at a reasonable speed on a straight dry road. Though he ought to have seen the floodway sign, and perhaps he did, the dry road surface and the absence of water on an apparently similar floodway a short distance before rendered the presence of water on this floodway totally unexpected. In short, there was no evidence of any negligent act or omission on his part. Both appeals should therefore be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 67 of 1992
Before the Court of Appeal
The Chief Justice Mr Justice Davies Mr Justice de Jersey
BETWEEN:

JOHN CHARLES O'RYAN

(Plaintiff) First Respondent

AND:

THE COMMISSIONER OF MAIN ROADS

(First Defendant) Appellant

AND:

WAGGAMBA SHIRE COUNCIL

(Second Defendant) Second Respondent

Appeal No. 68 of 1992

BETWEEN:

JOHN CHARLES O'RYAN

(Plaintiff) First Respondent

AND:

THE COMMISSIONER OF MAIN ROADS

(First Defendant) Second Respondent

AND:

WAGGAMBA SHIRE COUNCIL

(Second Defendant) Appellant

REASONS FOR JUDGMENT OF THE COURT

Delivered the 19th day of November 1992

MINUTE OF ORDER:	Both appeals dismissed with costs
CATCHWORDS:	NEGLIGENCE - LIABILITY OF STATUTORY AUTHORITY - plaintiff claimed negligent design and construction of main road - whether design of floodway negligent in permitting water to 'pond' after rain - whether design of floodway too low and therefore negligent - whether merely non- feasance or a misfeasance - Local Government Act 1936 s. 19B, s. 35(7), Main Roads Act 1920 s. 27, s. 35
NEGLIGENCE - CAUSATION - plaintiff claimed negligent road design caused vehicle to lose control and collide with other vehicle - whether any evidence to support finding of fact that 'ponding' of water caused vehicle to overturn
Counsel:	J.A. Griffin Q.C. with him D.J. McGill for the Appellant in the first appeal and the Second Respondent in the second appeal
J.J. Clifford Q.C. with him T.D.O.J. North for the Second Respondent in the first appeal and the Appellant in the second appeal
J.S. Douglas Q.C. with him D.A. Reid for the First Respondent in each appeal
Solicitors:	Director of Prosecutions for the Appellant in the first appeal and the Second Respondent in the second appeal
Quinlan Miller & Treston for the Second Respondent in the first appeal and the Appellant in the second appeal
Lyons for the First Respondent in each appeal
Date(s) of Hearing:	28-30 October 1992
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND	Appeal No. 67 of 1992
BETWEEN:

JOHN CHARLES O'RYAN

(Plaintiff) First Respondent

AND:

THE COMMISSIONER OF MAIN ROADS

(First Defendant) Appellant

AND:

WAGGAMBA SHIRE COUNCIL

(Second Defendant) Second Respondent

Appeal No. 68 of 1992

BETWEEN:

JOHN CHARLES O'RYAN

(Plaintiff) First Respondent

AND:

THE COMMISSIONER OF MAIN ROADS

(First Defendant) Second Respondent

AND:

WAGGAMBA SHIRE COUNCIL

(Second Defendant) Appellant

__________________________________________________

__

THE CHIEF JUSTICE
DAVIES JA
DE JERSEY J

____________________________________________________

Reasons for Judgment of the Court delivered the
19th day of November 1992
__________________________________________________

__

"BOTH APPEALS ARE DISMISSED WITH COSTS"