The Municipality of Huon v Driessen & Sons Pty Ltd
[1991] TASSC 40
•19 March 1991
Serial No 9/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: The Municipality of Huon v Driessen & Sons Pty Ltd [1991] TASSC 40; A9/1991
PARTIES:THE WARDEN, COUNCILLORS AND ELECTORS OF THE MUNICIPALITY OF HUON
v
W M DRIESSEN & SONS PTY LTD
FILE NO/S: FCA 3/1990
DELIVERED ON: 19 March 1991
JUDGMENT OF: Green CJ, Wright and Crawford JJ
Judgment Number: A9/1991
Number of paragraphs: 48
Serial No 9/1991
List "A"
File No FCA 3/1990
THE WARDEN, COUNCILLORS AND ELECTORS OF THE MUNICIPALITY OF HUON v W M DRIESSEN & SONS PTY LTD
REASONS FOR JUDGMENT FULL COURT
GREEN CJ (Dissenting)
WRIGHT J
CRAWFORD J
19 March 1991
ORDERS OF THE COURT
Appeal allowed.
Cross appeal dismissed.
Judgment for the respondent set aside.
In lieu thereof judgment entered for the appellant.
Serial No 9/1991
List "A"
File No FCA 3/1990
THE WARDEN, COUNCILLORS AND ELECTORS OF THE MUNICIPALITY OF HUON v W M DRIESSEN & SONS PTY LTD
REASONS FOR JUDGMENT FULL COURT
GREEN CJ
19 March 1991
The nature of this appeal and the facts which are relevant to its determination appear in the reasons for judgment of Crawford J.
Although there was little direct evidence about how the road came to be in the condition in which it was when the accident occurred, Mr England's direct evidence of his observations of the scene after the accident, Mr England's opinion evidence and Mr Driessen's evidence when evaluated in the light of the fact that the appellant called no evidence was sufficient to establish that the respondent's loss was caused by the collapse of the edge of the roadway which appeared to be more substantial than was actually the case and that the misleading appearance of the roadway was caused or contributed to by work done by the appellant. I therefore agree with the conclusion reached by Crawford J that for the purposes of s21(4) of the Local Government (Highways) Act 1982, the respondent's loss arose from the condition of a highway and that that condition resulted from the carrying out of highway works by the appellant.
As it seems to have been accepted by the parties and the trial judge that in the particular circumstances of this case a finding that the appellant was negligent in the way it maintained the road was sufficient to demonstrate that for the purposes of s21(4) of the Local Government (Highways) Act 1982 the way in which the highway works were carried out was "improper", it is unnecessary for me to express any opinion as to whether the scope of the two concepts will always be co–extensive. I turn to the question of whether the appellant was negligent.
In view of the concession made by counsel in the hearing before this court it is now clear that there was insufficient evidence to sustain the learned trial judge's finding that the appellant "knew of the existence of the 'soft edges'" before the accident. However a finding that the appellant did not know that the condition of the road had created the concealed danger which gave rise to the loss does not conclusively determine the issue of whether it was negligent. It would be sufficient to show that it ought to have known or foreseen that such a danger might have been created by the work which it carried out.
Mr England's opinion was that the work done by the appellant in conjunction with other factors resulted in the gravel creeping further and further out from the edge of the road so as to create the trap which resulted in the accident. Mr England did not suggest that the circumstances under which this accident occurred or his subsequent inspection of the road led him to discover some previously unsuspected properties of country roads or some previously unsuspected consequences of doing work of the kind which was done by the appellant. It was implicit in Mr England's evidence that his opinion was based upon common experience and that what happened in this case was not unusual or uncommon but was what could be expected to happen in the normal course of events when one graded country roads of this sort. The appellant must be taken to have known the nature of the work done by its employees or agents and on the basis of Mr England's evidence I am satisfied that it ought to have known that there was a real possibility that the work which it had done would create a dangerous trap. Having reached that conclusion I have no difficulty in agreeing with the learned trial judge's conclusion that the appellant was negligent in failing to guard against the danger by the "simple and inexpensive" step of erecting guide posts. The failure to erect guide posts viewed in isolation might properly be characterised as nonfeasance. But that does not relieve the appellant of liability when the danger which gave rise to the need to erect the guide posts was created by the appellant's misfeasance: see McClelland v Manchester Corporation [1912] 1 KB 118 at 127; Gorringe v The Transport Commission (Tas.) (1950) 80 CLR 357 at 371 and 380; McDonogh v Commonwealth of Australia (1985) 61 LGRA 239 at 244.
I turn to the issue of contributory negligence. The learned trial judge's assessment of the respondent's share in the responsibility for the damage which it suffered was not affected by his finding that the appellant knew of the existence of the "soft edges". I am not persuaded that the fact that the correct basis for the appellant's liability is that it ought to have known of the danger rather than that it actually knew of the danger has any material bearing upon the way in which liability should be apportioned. Counsel for the respondent properly indicated that he did not feel that he could submit that no finding of contributory negligence should have been made against the respondent. The respondent failed to take sufficient care for his own safety when he drove his heavy vehicle dangerously close to a steep bank on the edge of what was obviously a second class country road. On the other hand the appellant created the trap by its own actions and failed to take any steps to reduce the risk of road users being harmed. I am not persuaded that the apportionment has been shown to have been wrong or unreasonable or that any reason exists for disturbing it.
I would dismiss the appeal and the cross–appeal.
List "A"
File No FCA 3/1990
THE WARDEN, COUNCILLORS AND ELECTORS OF THE MUNICIPALITY OF HUON v W M DRIESSEN & SONS PTY LTD
REASONS FOR JUDGMENT FULL COURT
WRIGHT J
19 March 1991
I am relieved of the necessity of reviewing the facts in detail as that task has already been undertaken by Crawford J in his reasons for judgment which I have had the advantage of reading in draft form.
Although agreeing with my learned brother Crawford's statement and analysis of the relevant circumstances, I was initially disinclined to concur in his conclusion that a finding of negligence against the appellants could not be sustained. However having carefully considered the approach adopted by the learned trial judge, and also by Blackburn CJ and the Full Court of the Federal Court of Australia in McDonogh v The Commonwealth of Australia (1985) 61 LGRA at 232 and 239 respectively, I have reached the conclusion that the appeal must succeed. I do so essentially for the reasons expressed by my learned brother Crawford J and I only wish to add a few words of my own.
During the course of argument it became apparent that the outcome of this appeal was seen by counsel to depend upon two fundamental factors – firstly, the elusive and sometimes unsatisfactory distinction between non–feasance and misfeasance by a highway authority, and secondly, upon a determination of the question whether or not the state of the road surface had been created by the appellant's activities or had been brought about by extraneous causes and events. It was not suggested by counsel that the appellants were under a general duty of care akin to that acknowledged by the High Court as being available to an invitee/licensee plaintiff in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. It was accepted that the distinction between non–feasance and misfeasance may still be a factor of crucial importance in a case involving alleged negligence on the part of a highway authority, notwithstanding the provisions in s21 of the Local Government (Highways) Act 1982 or any recent developments in the law of negligence. However little recognition or attention was given to the requirement that there must be more than a mere causative act and that there must also be negligence in carrying out the impugned activity before an injured plaintiff may succeed. In short there was a tendency to lose sight of the fact that there is more involved in the non–feasance, misfeasance dichotomy than an omission to act on the one hand and the commission of a positive act on the other.
The facts in McDonogh v The Commonwealth of Australia (supra) were very similar to those in the present case. There, as here, there was an inability on the part of the plaintiff to show that the defendant had been guilty of any misfeasance in respect of the original construction of the road and all that could be demonstrated by the evidence was that the defendant had done work on the surface which in substance took the form of regrading and redistributing gravel upon it as a result of which:
"the road was given an appearance of uniformity across its surface of apparent safety". (Fox and Miles JJ at 243).
Their Honours said (at 244):
"We appreciate the argument which says that there is no proof as to who constructed the road, or whether it was then negligently constructed, and that the maintenance work was done without negligence. The problem of 'soft edges' may have been there from the beginning, and, it is said, the Commonwealth had no duty, a breach of which was actionable in tort, to do anything about this. This latter statement implies the wrong question. The first matter at issue is whether there was a duty of care. Such a duty arose, in our view, from the nature and extent of the work which was done by the Commonwealth. It is not sufficient to say that viewed in isolation the maintenance work, so called, was not done negligently. It is the case that a failure to do any work is not actionable. When however a body ... has the control and management of a road, and it does work thereon, the consequences of the doing of that work have to be examined, not simply the work itself. (Sutherland Shire Council v Heyman). Actively to maintain a dangerous situation can be as negligent as its original creation." [My emphasis].
With these propositions I agree but in my respectful opinion they do not go far enough to resolve the essential issue in a case of this kind. As in the present case, much attention was given in McDonogh (supra) to the judgments of the High Court in Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357. In Gorringe, although repairs had been executed which were inadequate to render the road safe from collapse into the culvert and, indeed, were not undertaken for this purpose, the High Court exonerated the highway authority from liability on the basis that the collapse of the culvert was due to non–feasance and had not been brought about by any work undertaken by the Transport Commission. There was no element of the Commission having created a trap or having perpetuated the concealment of a hidden danger. Mr Gorringe died because he drove his vehicle into a large chasm in the centre of the road which he was unable to avoid, this chasm having been caused by the decay and final collapse of the culvert beneath the road. He did not drive over a seemingly sound piece of road having been induced to do so by its appearance of solidity. Therefore, as Dixon J. said at 371, "Here what was left undone and what was done are not only severable, they are in my opinion unconnected."
In the present case the respondent approached one step closer to establishing liability against the appellant because by undertaking the work which it did, the appellant continued to conceal from road users the hidden danger which existed below the road surface in the form of inadequate compaction and foundation and as a consequence the respondent was misled into driving upon that section in the belief that it was sound. Important thought these factors were they were insufficient for the respondent to succeed. In my opinion the essential question was, "Is there any evidence or is there a sufficient basis for inferring that the appellant knew, or ought to have known, that the regraded area lacked sufficient foundation and was likely to collapse"? It is plain that the learned trial judge misconceived the significance of the presence of "soft edges" signs on the road when Mr Ikin carried out his inspection later on the day of the accident. It was common ground on the appeal that these signs had not been there at or before the time of the accident and thus their presence at a later stage provided no basis for inferring that the appellant knew of the soft edges before that occurrence. Crawford J, in his reasons, mentions the fact that Mr England acknowledged that a grader driver working upon the road may not have realised that the foundations were insecure and further, that he (England) had seen roads which had been bitumened across their full surface because the road making authority had apparently wrongly believed that there was good road across the entire width. These two pieces of evidence tend to suggest that a road making authority or its employees would not necessarily recognise that they were engaged in resurfacing a defective road. It may be argued that Mr England and Mr Ikin were able to appreciate the nature and extent of the defects once they inspected the scene soon after the accident had occurred, but this does not necessarily lead to the conclusion that such defects should have been apparent before that time. Mr England was not asked to express an opinion upon this question and there is nothing in his description of his findings at the scene which inevitably leads to this result. In my opinion there was no evidence from which it could be concluded that anyone exercising adequate and competent engineering supervision over the operation or performing the work undertaken should have appreciated that maintenance grading, pot holing or resheeting the surface of the road constituted a perpetuation of a pre–existing trap. The interrogatories tendered by the respondent show that the appellant had received no complaints of the existence of soft edges from other road users prior to the date of the respondent's mishap. With these considerations in mind I find myself in respectful agreement with the process of reasoning adopted by Fullagar J in Gorringe at 380 – 381.
There is no need to go into the subtleties involved in the question of whether or not the failure of the Council to erect guide posts or place "soft edges" signs on the road amounted to "feasance" or non–feasance. These questions only arise, if at all, once it is concluded that the Council was in fact aware of the insubstantial nature of the edge of the road and chose to ignore the possible consequences of heavy traffic passing over it, or, having done work upon the road which they knew, or should have known, perpetuated an existing trap, the Council was aware, or ought to have been aware, that the placing of such posts or signs could have avoided danger to road users who ventured upon the relevant section of roadway. My prima facie view is that in the former situation the failure to erect posts or signs would be simply non–feasance whereas in the latter, the failure to erect the posts or signs would amount to misfeasance and would attract liability on the basis so eloquently explained by Lush J. in McClelland v The Manchester Corporation [1912] 1 KB at 127. However, as I say, there is no need for me to reach a concluded view on this matter.
Nor is it necessary for me to deal with the submissions of the appellant based upon the concession by Mr England in his evidence to the effect that even had the road been properly constructed, the embankment would still have failed beneath the weight of the respondent's truck on the outer edge of the road – a feature which of itself may be sufficient to defeat the respondent's claim.
In my opinion the appeal must succeed and the cross–appeal must fail.
List "A"
File No FCA 3/1990
THE WARDEN, COUNCILLORS AND ELECTORS OF THE MUNICIPALITY OF HUON v W M DRIESSEN & SONS PTY LTD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
19 March 1991
This appeal concerns the liability of a highway authority, or more accurately of a local authority, responsible for a narrow gravel road, to a user who suffered damage arising out of the condition of the road. At the trial the respondent was awarded damages against the appellant following a reduction by one third for contributory negligence.
On 21 September 1987 Mr Driessen was driving the respondent's Nissan prime mover towing a tipper trailer along Rankin's Road. The tare weight of the prime mover was 7 tons and of the trailer 4 tons, with a load of 8 tons being carried. Rankin's Road ran up a steep hill from Franklin. Mr Driessen drove round a sharp right hand bend at about 15 to 20 kmh and observed a Ford Falcon station wagon slowly approaching from the opposite direction. The driver of the station wagon pulled completely over to its correct side and stopped to allow Mr Driessen to proceed past.
The road was typical of many minor rural roads in Tasmania. It proceeded along the side of a hill. It was a quite standard example of the "cut and fill" technique of developing a rural road. The method involves cutting into the side of a hill and taking the extracted material to the other side of the road, to fill up the space between the natural ground surface and the level required for the road surface. Viewed from the position of Mr Driessen, to his right was up hill and to his left down hill. The total width of the road surface was 5.5 metres. There was a 700mm. table drain against the bank on the right. There was then a substantial and well compacted gravel pavement 3.9 metres wide. The remainder of the 5.5 metres width consisted of 900mm. of clay fill covered by a thin layer of similar looking gravel. The natural surface, which formed a foundation for the clay fill, had a substantial slope of the order of a fall of one in three or perhaps one in two.
The road surface had the appearance of having the same material across its width from the table drain to the left edge. The main travelled portion of 3.9 metres was of a very hard, smooth and compact surface, obviously frequently travelled on and in a very good state of repair. The gravel on the remaining 900mm. of surface on the outside of the road was looser, but of the same material as the rest. The surface of the 3.9 metres and 900mm. sections were on the same level, there being no humps or mounds along the centre of the road or elsewhere as can sometimes be seen on country roads. The 900mm. section of the road gave the appearance of being a solid piece of road, like the rest, which it was not. The loose gravel on it gave it the appearance however of a section of road not often used by vehicles. The learned trial judge found that it constituted a "trap" which he described as follows:
"... a treacherous piece of road immediately beside a solid piece of road both pieces of road being covered by the same material, namely, local gravel, assuming a surface of uniform height, any difference in colour being referable only to the differing amounts of traffic on each of the pieces of road. And, in addition, blackberries and other growth to the side of the main travelled portion of the road and down off the edge of the 'untravelled portion' of the road further camouflaged a very dangerous state of affairs".
Mr Driessen decided to drive on past the station wagon. He slowed the unit by applying the brakes and moved over to the left. He estimated that the outside of the left front tyre of the prime mover was about 20 inches from the edge of the drop when he started to pass the station wagon. He felt the prime mover slowly sinking, continued to drive for about 25 feet hoping to drive and steer out of trouble, and then stopped when he realised he was not achieving this. By this time the rear wheels of the prime mover were opposite the station wagon. The unit then tipped over and rolled down the bank. The "untravelled portion" of the road had had insufficient strength to support the weight of the unit and had collapsed. Mr Driessen's evidence was that there had seemed to be plenty of room for passing, and he had seen nothing to suggest that the "untravelled portion" was anything but safe. There was evidence of tyre marks in the gravel on the "untravelled portion" which established that vehicles had successfully driven along it in the past.
An engineer, Mr England, gave evidence that a driver would have thought the whole of the width of the road was trafficable. A loss assessor, Mr Ikin, described the "untravelled portion" as a "false road section", having the appearance of being a roadway but not having been built as a road.
By s21(4) of the Local Government (Highways) Act 1982 the appellant, as the corporation charged by subs(1) with the duty of maintaining the local highways, which it is admitted include Rankin's Road, "is not liable for any injury or loss arising from the condition of the highway unless that condition results from the improper carrying out of highway works that are carried out by, or at the direction of the corporation". In its statement of claim the respondent alleged "improper carrying out of works by the Defendant and the negligence of the Defendant in maintaining" the road.
Because of the provisions of s21(4), three questions arise for determination. They are:
1Whether the accident arose from the condition of the road.
2If so, whether that condition resulted from the carrying out of maintenance work by, or at the direction of, the appellant.
3If so, whether that maintenance work was carried out improperly.
It may be, and counsel did not seek to argue to the contrary, that subs(4) preserves common law principles which impose liability on a highway authority for misfeasance but protect an authority against liability for nonfeasance. But it is unnecessary to decide whether this is so.
The questions I have postulated are questions of fact, to be answered by an examination of the evidence at the trial. It does not appear that the credibility of witnesses concerned the trial judge. The appellant called no evidence and as was stated by the learned judge the evidence for the respondent was not contradicted by other evidence, although it was tested carefully and extensively by cross–examination.
It was clearly established by the evidence that the accident arose from the condition of the road, that condition being the unstable nature of the 900mm. clay shoulder and its camouflage by a layer of gravel and by it being of the same level as the compacted road surface.
There was no evidence establishing, nor was it claimed by the respondent, that the appellant was responsible for the construction of the road with the unstable clay shoulder and the compaction of the surface of the road apart from that shoulder. But what has to be answered is whether the camouflaging of the unstable section resulted from the carrying out of maintenance work by the appellant.
The appellant admitted to doing periodic maintenance work on the road which consisted of maintenance grading, pot holing and resheeting of the open surface with local gravel extracted from quarries.
There was no evidence establishing when the road was constructed substantially into its form at the time of the accident. Mr Driessen's evidence was that he had driven along the road about 50 to 100 times a year for 15 years to get to and from his farm, and in that time he had noticed no material change in the road. He had (presumably over that period of 15 years) observed the council effecting repairs, "usually grading and top dressing, grading that or pot holing". By top dressing he meant "they bring gravel in with tip trucks and tip it over the road and then grade it". By pot holing he meant simply filling the pot holes with gravel. At the accident scene he said that there was loose gravel for a two to three feet width on his left side of the road showing that the road had been graded but not used. The centre of the road had no loose gravel because "it was just compacted where everybody drives". He was unable to say when the road had been last graded prior to the accident, but expressed his opinion that it was recent because no vegetation was growing in the "untravelled portion". He made mention that cars threw out loose gravel onto the two to three foot section but he gave that evidence with no assertion that he observed cars do such a thing.
The only other evidence concerning the cause of the condition of the surface of the road came from the engineer, Mr England. Most of what he said consisted of his opinions. He did not claim to have seen the appellant carry out maintenance or any other work on the road, nor did he claim to base his evidence on having seen the road prior to the time when he visited the scene over two months after the accident occurred. However he had had some 40 years' experience as an engineer and had been responsible for the design and construction of hundreds of kilometres of roads in Tasmania, involving all types of roads including country roads. On the basis of his inspection of the road he said that the untravelled portion "for a width of between two and three feet had been a clay shoulder but gravel had blown, travelled, in some way had gone across the top of it, so it had a gravel surface to it. To all intents and purposes it was gravel but in fact it was only perhaps half an inch, an inch thick". He was then asked whether he would expect, in the normal course of events, grading operations to cause gravel to be graded to the extreme outside of the road and his reply was:
"It's something that seems to happen in all the country roads over a period of time. It's not just one grading that does it but each time it is graded the gravel creeps out a bit further and, I've even come across roads that have actually been bitumened over the whole lot because somebody thought that they had a – or another route [sic] to the road making authority thought they had a good road for the full width so they bitumened it and everybody travelled on the outside and of course they wondered why the bitumen failed."
Later in his evidence Mr England had the following to say:
"When the road goes into surface [sic], the very top layer and particularly the fine material in the top layer, is – has got very little to hold it in place, so the finest particles under the travelled surface, tend to come loose and that the motion of the cars and vehicles to and fro, they tend to be swept or blown clear of the travelled surface. So you tend to get, on the side, a collection of these smaller particles."
Still later in his evidence, Mr England said that based on his observations two months after the accident, and given the time of the year, he would have said that the road had last been graded "recently" but he could not say whether it had occurred before or after the accident. He expressed the following opinion:
"I would think that originally the road was constructed with the pavement width, I've shown on the appendix of 3.9 metres. I would think that the thin layer of gravel over the outer 900mm. has been swept there over a period of time, not necessarily in one regrading of the road, but possibly over several regradings. It's quite even likely that the grader driver hasn't realised, it's not the original road pavement that's even graded it".
He agreed that the thin layer of gravel had gradually extended itself out by the action of maintenance to the road and he said "this is a very common thing I have seen many many times occur".
In cross–examination Mr England expressed his opinion further in the following passage of evidence:
"And this light gravel is often pushed or drifts on to the untravelled sections of country roads as a result of cars travelling to and from various destinations along that road? ... It comes from that, it also comes from the initial, the last time it was graded.
...
But over what period of time would it take for cars to push that sort of gravel across to the edge? Is it a rapid – a fairly rapid – – – ... Ah, depends on the weather. With consistent dry weather and the surface of the pavement drying out, the fine particles quickly disperse and get swept away. If it is wet for a period any fine particles which are loosened get swept in the table drain and carried away by the water.
Yes. Or it goes to the other side where it accumulates? ... Not in wet conditions, no.
No, no, sorry, in dry conditions? ... In dry conditions it's swept outwards or swept both ways by the traffic.
Yes. And – or it can be blown across by the wind? ... Yeah, but it's got to be loosened by the traffic first.
Yes. And would this be any different on bends as compared to straights or basically the same rules apply? ... Well on sharp bends you get a more rotoring action by the traffic tending to tear the material loose and thrust it outwards.
And whether or not the road was graded there would be a tendency of vehicles to push the gravel to the edge of the road in any event so that over a period of time, even if the road wasn't graded, the appearance would be very much the same over sufficiently longer period of – in any event, wouldn't it? ... Yes.
Yes. And the accumulation of fine gravel on the edge of Rankin's Road is no different from on any country road? ... Well only to the extent that there is more width there then [sic] there are in most of them for that to happen.
But the thickness, there's no difference? ... No.
The appearance wouldn't be any different? ... No.
It would have taken a positive action by the council, would it not, to have prevented gravel from getting on to the edges of the road or on to the untravelled portions of the road? ... I don't think I'd necessarily want them to restrict the gravel from the area, the untravelled section. I think in fact it can have value in helping to keep the road below dry. What I would see as being the proper thing to do is to put in some guideposts to – – –
Or signs? ... Well preferably guideposts to keep people from using it.
Yes, but in order to stop the gravel from getting to the edge of the road, you'd have to build a little dam or retaining wall, wouldn't you? ... Yes.
It's very difficult for the council to stop the gravel from getting – – – ... They can't stop it, no."
The matter was taken further in re–examination:
"... you were asked in cross–examination a question on – I don't have the exact words, but along the lines if the untravelled portion had not been graded, would there still have been an accumulation of gravel over that portion by the sheer use of vehicles pushing the gravel across? I think your response to that was 'yes'... – if it was – the accumulation of gravel over that side was purely by the action of vehicles pushing gravel across from time to time to the side of the road, would you have expected the untravelled portion to be as wide as it now is, or was at the time of the accident? ... Well, the width of the untravelled portion I think is solely governed by sort of what land there was there already graded level with the road. What I would not have expected is that the gravel would've been such a uniform surface, a uniform – a uniform level I'm trying to say. In other words, I would've expected there to have been far more just off the edge of the travelled section and less near the edge of the bank. But in fact it was fairly uniform as if it had been graded over.
And so is that perhaps in your mind the only explanation as to its appearance at the time was the fact that it had been graded? ... I feel that this was the case but I have no more than that, that I can't explain it any other way.
Yes. Assuming that as you've just said that the extension of the road has been graded out there, was there – is there anything that a grader driver in those circumstances could have done to have limited the extent that the grading went out to the edge? Sorry, I'll qualify that again, to have stopped it being pushed out any further? ... Well he could bring it back, graders and a good driver is a very very accurate – and they can work to virtually to a fraction of an inch, he could have pulled the gravel back but again, as I said, I don't know when it was last graded so how much time elapsed, perhaps he did pull it back and then time elapsed and it – the gravel blew out again, I don't know.
It certainly had the appearance of having been graded flat? ... Yes."
From the evidence it was established that the grading of the road resulted in the road, including the shoulder (the "untravelled portion") being of the same level as the compacted surface. If the road had not been graded it is to be expected that there would have been a hump running along the approximate centre of the road which most vehicles would have straddled, and a build up of gravel on the shoulder brought about by the motion of the wheels of vehicles passing closer to the centre.
Another result of not grading the road would have been that the vegetation would have grown out from the edge over at least some of the shoulder and vegetation would also have grown in the untravelled portion, thereby narrowing the apparent width of the main travelled portion.
If in addition to not grading the road, the gravel had not been replenished from time to time, the road would have fallen into a bad state of repair to the extent that those using it would have needed to take considerable care. It is probable that eventually all loose gravel would have been swept, washed, blown or otherwise moved off the road, by the passage of vehicles and the weather.
It was not established how long the appellant had been responsible for and had been maintaining the road. It admitted that at all material times it was under a statutory duty pursuant to s21 of the Local Government (Highways) Act 1982 to maintain the road, but such admission could only relate to the period of four years preceding the accident, for s21 did not commence to operate until 1 September 1983.
It was not established by the evidence that the clay shoulder was not already camouflaged in some way when the appellant first assumed responsibility for the road but it was established that by applying gravel and by grading the appellant maintained, that is to say kept in existence, the condition of camouflage. That condition of camouflage misled Mr Driessen into believing that the shoulder was safe. It therefore follows that the respondent's loss arose from a condition of the road which resulted from the carrying out of the maintenance work by the appellant. Without that work the condition of the road would no doubt have been substantially different.
The next question which arises is whether that maintenance work was carried out improperly. Involved is a question of negligence. The learned trial judge expressed the following reasons for his finding that the appellant was negligent:
"(1)the section of road on which the accident occurred was dangerous. ...
(2)such a serious danger should have been guarded against, there being a simple and inexpensive way of guarding against it, namely, by erecting guideposts" (within the clay shoulder) "as suggested by Mr England. The 'soft edges' sign was not a sufficient step because of the seriousness of the danger. The guideposts would have constituted an effective barrier to an accident occurring in this way.
(3)I infer that essentially what happened to Mr Driessen was, he drove in an inattentive or inadvertent way. He simply did not advert to the steepness of the bank and the risk of it giving way. Increasingly the community is becoming conscious of the fact that many accidents occur because of inadvertence, particularly inadvertence on the part of those who are busily engaged in pursuing some purpose which is engaging their attention to the exclusion of the immediate and serious road, factory or other type of immediate risk which causes injury. The history of the plea of contributory negligence in employeremployee cases illustrates the point I am endeavouring to make.
(4)there was an element of the 'trap' in this road, a point made adequately by the evidence of each of the three witnesses. It was such a serious 'trap' that the defendant was negligent in failing to install guideposts to protect the public including the plaintiff. To the argument that this decision implies that the council was and is obliged to erect guideposts on all similar roads the answer is only on roads which present the same or a similar danger. ...".
Later in his judgment the learned judge added the following finding against the appellant:
"(I)t knew of the existence of the 'soft edges' and, in fact, erected signs warning against them. But for the reasons already given the step of erecting signs was an inadequate response to a serious danger. I accept Mr England's opinion about the inadequacy of the signs to deal with this danger."
Although not referred to elsewhere in his judgment, this finding of prior knowledge of the "soft edges" must have been of considerable influence in the mind of the learned judge when considering the issue of negligence. As it now appears however, the finding was incorrect. On the hearing of the appeal counsel agreed that this Court should proceed upon the basis that there were no "soft edges" signs erected at the time of the accident. The finding of knowledge was based on the evidence of Mr Ikin, who said that he saw such signs on the same day as, but after, the accident. There was no other evidence upon which it could be concluded that the appellant knew before the accident of the existence of the soft edges, and although his Honour may have been justified in reaching that conclusion on the evidence before him, it should now be rejected because of counsel's agreement.
There was no evidence to show that the appellant ought to have known of the trap. It is possible, and it has not been established to the contrary, that the appellant's servants or agents had at no time been aware of any signs of the dangerous situation. In answer to an interrogatory tendered in evidence it stated that prior to the accident it had received no complaints in relation to the existence of soft edges. When the appellant took control of the road, and what its condition was then, were not established. The camouflage might well have existed then and may have continued in existence until the accident without any realisation on the part of the appellant's servants and agents that a dangerous situation existed and that the maintenance work was camouflaging it.
Mr England gave evidence that it was "quite even likely that the grader driver hasn't realised" and that he had seen roads which had been bitumened for their full width because the road making authority wrongly thought there was "good road" for the full width. He also said that he would not want to restrict gravel from the edges of the road and in any event the appellant could not stop the gravel from getting there.
All the evidence established that the maintenance work done by the appellant was properly carried out and in the usual manner to be expected of a local council on a road described by Mr England as "about the lowest class of rural road".
In the absence of evidence that the appellant knew or ought to have known of the existence of the danger constituted by the unusually wide clay shoulder, and in the light of the evidence establishing that the maintenance work was otherwise properly carried out, I conclude that the finding of liability against the appellant cannot be sustained. The maintenance work was not carried out improperly. I have come to this conclusion without reference to authorities because in my opinion what is involved is a question of fact. However I refer to one case which was cited by counsel. It was McDonogh v Commonwealth of Australia (1985) 61 LGRA 239, (1985) 9 FCR 360. The facts in that case were similar to those in this case and the plaintiff succeeded. However in that case a front wheel of the Commonwealth grader had, not long before the relevant accident, sunk into the fill in the section of the road on which the accident occurred. That was evidence that the Commonwealth was aware of the soft edges, and in conjunction with the evidence in that case of the camouflaging of the soft edges by gravel and grading, the finding of negligence against the Commonwealth can be explained.
The appeal should succeed. The judgment for the respondent should be set aside and there should be judgment for the appellant.
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