Townsend v City of Swan - [2005] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TOWNSEND -v- CITY OF SWAN [2005] WADC 152

CORAM: EATON DCJ

HEARD: 21-22 DECEMBER 2004 & 12 MAY 2005

DELIVERED : 10 AUGUST 2005

FILE NO/S: CIV 3119 of 2002

BETWEEN: DARRELLE TOWNSEND
Plaintiff
AND
CITY OF SWAN
Defendant

Catchwords:

Torts - Negligence - Local authority in control of road - Duty of care owed by local authority - Whether local authority had breached its duty of care - Magnitude of risk - Whether road inspection regime reasonable - Turns on own facts

Legislation:

Land Administration Act 1997

Local Government Act 1995

Result:

Judgment for the defendant

Representation:

Counsel:

Plaintiff: Mr M D Cuerden
Defendant: Mr J Eller

Solicitors:

Plaintiff: Griffiths & Godecke
Defendant: John Eller

Case(s) referred to in judgment(s):

Brodie v Singleton Shire Council (2001) 206 CLR 512
Douglas‑Brown v Commissioner of Police (1995) 13 WAR 441
Town of Mosman Park v Tait [2005] WASCA 124
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Bomford v Commissioner of Main Roads & Anor [2000] WASCA 187
City of Ballarat v Perovic (2001) 4 VR 1
Duval v Pederson (2003) 33 SR (WA) 211
Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183
Hagger v City of Fremantle [2003] WADC 206
Hill v Commissioner for Main Roads (1989) 68 LGRA 173
Hoyts Pty Ltd v Burns [2003] HCA 61
Jones v Dunkel (1959) 101 CLR 298
Lawrence v City of Melville (2002) 29 SR (WA) 210
Leichhardt Municipal Council v Green [2004] NSWCA 139
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2005] HCA 61
Richmond Valley Council v Standing [2002] NSWCA 359
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Tame v State of New South Wales (2002) 211 CLR 317
Vale v Whiddon (1949) 50 SR (NSW) 90

EATON DCJ: The plaintiff, Darrelle Elise Townsend, is 47 years old having been born on 1 July 1958. In February 2002 she was resident at Ballajura. On 25 February 2002 she left home at about 3.15 pm to collect her daughter from school and take her to a netball game. She was riding a Yamaha Virago 250CC motor cycle. Her journey to the school took her down Oxleigh Drive to a roundabout at the junction of Oxleigh Drive and Beach Road, Malaga. She intended to turn left from Oxleigh Drive into Beach Road.
The roundabout at the junction is a dual carriageway as is Oxleigh Drive with two lanes entering the roundabout. The plaintiff said that as she approached the roundabout there was a car in front of her and a truck or tanker in the right hand lane adjacent to her. She was in the left lane, that being closest to the footpath, with the intention of turning left. The car in front, she said, braked as if to stop and then appeared to continue on into the roundabout. It seems that the driver of that vehicle, having proceeded forward slightly decided not to go further. The plaintiff said that as she was braking "my back wheels came into contact with a substantial amount of glass which was quite concentrated in a strip probably about half a foot by, say, two and a half foot long." She said that the rear of her motor cycle began to "fishtail" and she started to lose control. As that happened she released the brake in the hope that she might regain control of the motor cycle. She initially thought that she might steer to the right hand side of the car in front and thereby avoid a rear end collision but, as mentioned, there was a truck or tanker to her right. Her next thought was to mount the kerb to the left. She thought that, as the kerbing was square to the bitumen rather than sloped, she might hit the kerb and somersault over the handlebars. Ultimately, she decided to move left and, at the same time, lay the motor cycle down while jumping clear. As she attempted that manoeuvre her left foot became trapped underneath the foot rest and between the foot rest and the kerb causing a hyper‑extension of the foot and four broken bones. Her right calf came into contact with the hot motor cycle exhaust. She was burnt as a result. With the motor cycle down she attempted to walk away but was only able to take a couple of steps before sitting down on the grass verge. She said she was in great pain.
Nearby was a "Beaurepaires" store. She was approached by a couple of workers from that store who enquired as to how she was. A driver in a vehicle behind also stopped and made a similar enquiry. Her concern was for her daughter who would be waiting outside the school grounds to be collected. She expressed that concern to one of the Beaurepaires' employees who generously offered to take her to the school in a Beaurepaires vehicle. By that means she collected her daughter who was taken to her netball game. The plaintiff was then driven back to the intersection of Oxleigh Drive and Beach Road. In her absence her motor cycle had been moved into the Beaurepaires' carpark. After trying unsuccessfully to contact her husband the plaintiff decided that she should ride it home. She did so very slowly, changing gears with difficulty and pain. Once home she contacted her husband.
When asked by her counsel to describe the glass on the road she said that it would have been at its highest point, probably "say at least an inch thick". She said it was scattered in about a five foot radius but that there was a pile of glass on the carriageway which is what her rear wheel came into contact with.
The accident had occurred on a Monday. She returned to the intersection later that week, taking a carton of beer to the Beaurepaires employees as an expression of her appreciation. She said that upon her return there had been some changes made to the kerbing such that the square kerbing was replaced with a sloping kerb. In addition, the glass had gone.
The plaintiff lived not far from the intersection. It was an intersection with which she was very familiar, travelling that way not only to collect her child from school but also for such mundane activities as shopping and banking. She described it as a busy intersection and, at peak hour "extremely busy".
In cross‑examination the plaintiff said that at the time of the accident she was travelling at a speed of approximately 10 kilometres per hour in first gear. The strip of glass referred to was in the middle of the lane in which she was travelling. She did not see it because of the car in front. She denied that she was skidding before her rear wheel came into contact with the glass. She said that she was one car length behind the car in front. Both the driver of that car and she were braking as they approached the roundabout. When it was put to her that at 10 kilometres per hour the rear of her motor cycle could not be fishtailing in those circumstances she said that it did and that skidding on glass was like being on ice.
It seems that the plaintiff went to hospital at some stage after the accident because of her pain. When asked why it was that it was over a month before her solicitors reported the matter to the defendant she explained that she was going to physiotherapy and was incapacitated.
By letter of 28 March 2002 the plaintiff's solicitors wrote to the defendant alleging that the defendant had been in breach of its duty of care to road users and seeking compensation for their client's injuries. On 22 November 2002 the plaintiff sued the defendant for damages for negligence and/or breach of statutory duty. By her Amended Statement of Claim the plaintiff asserted that the plaintiff was a local authority which had the care, control and management of the roadway where her accident occurred. The plaintiff alleged that the defendant owed her and others using the roadway a duty to take reasonable care to:
"(a)take steps to ascertain the presence of debris, shattered glass and other dangerous materials on the surface of the thoroughfare;
(b)ensure that the surface of the thoroughfare was free from debris, shattered glass and other dangerous materials;
(c)warn persons such as the plaintiff of the presence on the thoroughfare of debris, shattered glass and other dangerous materials;
(d)take steps to divert road users away from the thoroughfare in the event that debris, shattered glass and/or other dangerous materials were present on the thoroughfare;
(e)take such action as was necessary to ensure the safety of the plaintiff and other persons making use of the thoroughfare."
The plaintiff particularised the alleged negligence of the defendant asserting that the defendant, its servants or agents were negligent in that they:
"(a)failed to take steps to ascertain the presence of glass on the road;
(b)failed to take steps to clean the road and remove the glass promptly so as to alleviate the danger to the plaintiff;
(c)further or alternatively failed to divert traffic using the road until such time as the glass had been cleared from the road;
(d)further or alternatively, failed to erect a sign or otherwise warn road users of the presence of glass on the road."
The plaintiff, in her statement of claim, particularised her injuries, treatment and disabilities.
The defendant, by its Amended Defence, admitted that it was a local authority which controlled and managed the roadway where the plaintiff's accident occurred. The defendant claimed immunity pursuant to s 9.57 of the Local Government Act 1995. While admitting that the defendant owed a duty of reasonable care to road users it denied the content of the duty as asserted by the plaintiff in her statement of claim and said that at no relevant time did it have actual and/or constructive knowledge of any alleged glass on the thoroughfare. The defendant then denied that it was negligent and asserted that, if the plaintiff did sustain injury, loss and damage, which it denied, that her injury, loss and damage was caused solely by or contributed to by her own negligence in that she:
"(a)rode at a speed and manner in the circumstances that was dangerous;
(b)failed to exercise the degree of care required of a diligent motor cyclist in those circumstances; and
(c)assumed an inherent risk in the circumstances because the plaintiff was not sufficiently experienced in riding her motor cycle."
It is clear that the plaintiff, as a result of her accident, suffered some injury and loss. The quantum of her damage was agreed by the parties to the action. What remained to be decided at trial was the question of liability.
The plaintiff called Andrew Mark Bernasconi who was, at the time of the accident, assistant manager at the Beaurepaires store on the corner of Beach Road and Oxleigh Drive. He had been working at that store for about 18 months.
Mr Bernasconi said that he often worked at the counter of the Beaurepaires' premises and, from the window of those premises, had a view of the intersection at which the plaintiff's accident occurred. He agreed that it was a very busy intersection and that in the period of about 18 months during which he had the opportunity of observing the intersection from the window of his store there would have been about 30 accidents in total. He said that he saw three major accidents. He included the plaintiff's accident within that category. The rest, he said, were of a minor nature. When asked whether he had seen glass on the carriageway he said that he had and that he had picked up, from time to time, various pieces of motor vehicle debris from the road surface. From time to time debris on the road surface would interfere with the ordinary flow of vehicle traffic. He said that he saw glass on the road surface at least once a month. He assumed that it was cleaned up from time to time. He had seen glass remain on the road surface for several days.
On 25 February 2002 he was gazing out his office window at the intersection as the plaintiff approached on her motor cycle. He said that he saw the motor cycle skid and the rider come off "quite heavily". He and some others from his workshop went to the rider's assistance. On that day he noticed glass on the roadway which, he said, had been present for "at least two weeks before the accident". He said it covered an area of about three metres by two metres and that it looked like windscreen safety glass. It was, he said, very noticeable on the road.
He estimated that the motor cycle ridden by the plaintiff was travelling at about 10‑15 kilometres per hour coming into the intersection.
Mr Bernasconi said that he had noticed the defendant's vehicles passing through the intersection on a regular basis, perhaps one per week. As I understood his evidence he indicated that his observation was in addition to weekly municipal rubbish collection.
In cross‑examination Mr Bernasconi said that when rubbish appeared on the road surface it would normally be gone within a week.
The plaintiff called Helen Leslie Fenwick, a friend and a driver with Australia Post. She said that on 25 February 2002 she had driven through the intersection of Beach Road and Oxleigh Drive. She remembered seeing, on her way to work early that morning, shattered glass on the road surface. She had seen shattered glass on the surface at that point during the previous week. In cross‑examination she said that it could have been one or two days before 25 February 2002. She said that, in her view, it wasn't worth reporting remarking that it was commonplace in her travels to encounter shattered glass on the road surface.
The defendant called James Michael Foley who gave his occupation as executive manager of Operational & Development Services for the City of Swan. He was, by profession, a civil engineer and had, as a part of his responsibilities, the management of road construction and maintenance. He had been in that position since July 1992.
Mr Foley said that the City of Swan had within its boundaries approximately 1,300 kilometres of gazetted roadway of which 1,200 kilometres was sealed. He said that his employer was responsible for the maintenance and cleaning of the intersection at Oxleigh Drive and Beach Road. Council workers directly undertook actual maintenance and sweeping was undertaken by a contractor to the Council. Mr Foley explained that the defendant had in place an inspection process for its road network. His records indicated that Oxleigh Drive had been inspected on 9 January 2002 and Beach Road on 10 January 2002. Roads are inspected for the presence of potholes and other defects. The defendant, he said, was in receipt of motor vehicle accident data provided by the Main Roads Department.
Mr Foley said that there was no report of the accident suffered by the plaintiff prior to the letter from the plaintiff's solicitors dated 28 March 2002.
He indicated that, in his view, if motorists were involved in a motor vehicle accident on a road which led to debris or shattered glass being deposited on the road surface it was the responsibility of those involved in the accident to remove it. When asked as to the defendant's system in relation to glass or debris he said:
"…if the matter is brought to our attention or it is picked up during one of the inspections it is then removed, because it's obviously a danger. The point I was making was that…if there's a lot of glass or debris hazard, in accidents bumpers fall off, the load falls off the back of a truck which can also occur…the particular system would be that if its picked up or we get a complaint about it we go and remove it, so it has to be brought to our attention."
Regular road inspections occurred at about three or four monthly intervals. When asked about the defendant's system for cleaning debris off road surfaces Mr Foley was asked, specifically, whether the defendant drew any distinction between intersections which were the subject of frequent accidents and those which were not. He replied that it did not.

The statutory framework

Section 55(2) of the Land Administration Act 1997 provides:
"Subject to the Main Roads Act 1930 and the Public Works Act 1902, the local government within the district of which a road is situated has the care, control and management of the road."
Section 3.53 of the Local Government Act 1995 provides that a local government is responsible for controlling and managing every otherwise unvested facility within its district. An "otherwise unvested facility" means, inter alia, a thoroughfare the responsibility for controlling or managing which is not vested in any person other than under that section. On the pleadings the defendant admits that it controls and manages the relevant thoroughfare. My conclusion is that it has the statutory responsibility for the care, control and management of the relevant thoroughfare.
The defendant pleads, by way of defence to the claim by the plaintiff, that it is protected by the immunity contained in s 9.57 of the Local Government Act 1995. That section provides that a person cannot recover damages against a local government in respect of loss or injury sustained to that person by reason of a mishap upon or while using a portion of a thoroughfare, which portion has not been interfered with by the local government, merely because some other portion of that thoroughfare, whether distant laterally or longitudinally, has been taken over or improved by the local government. Subsection (2) of that section provides that subsection (1) does not relieve a local government from liability where the mishap is caused by the negligence of the local government in the execution of works then in progress, or which have been completed by the local government in a thoroughfare.
The plaintiff does not seek to recover damages against the defendant merely because some other portion of Oxleigh Drive has been taken over or improved by the defendant. The plaintiff's claim is a claim in negligence. Section 9.57 of the Local Government Act 1995 does not confer immunity from the plaintiff's claim against the defendant.

The law

In Brodie v Singleton Shire Council (2001) 206 CLR 512 Gaudron, McHugh and Gummow JJ said at p 577:
"Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non‑repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."
Their Honours went on to say that the perception of the response by the authority calls for a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. Their Honours said [at 578]:
"In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case."
What is alleged in the present case is not a failure to repair or maintain but rather a failure to remove from the road surface material deposited there. Such material might be spillage from loads, debris from motor vehicle accidents in the form of shattered glass or dislodged parts or things fallen from the back of trucks or utilities in the course of a journey. It is part of the common experience of road use that roads are not and cannot be kept in a permanently clean state. Use of a road whether for the purpose of riding a bicycle, motor cycle or driving a motor vehicle involves a constant watch for unexpected items and materials on the roadway. In the present case no complaint is made about the actual construction or maintenance of the road surface. The plaintiff says she was injured as the direct result of losing control of her motor cycle as a result of it passing through shattered glass on the roadway. The plaintiff claims that the defendant had a duty to take reasonable care to ensure that the surface of the roadway was free from debris, shattered glass and other dangerous materials. The junction concerned is a roundabout. Oxleigh Drive leads into that roundabout. According to Mr Bernasconi the presence of shattered glass on the road surface there was common. According to the plaintiff she was a regular user of that road.

The appearance of shattered glass on the road surface was no doubt the result of collisions between motor vehicles from time to time. It is the case that some obvious hazards to road users, such as fallen branches of trees or oil spillages, are reported to the responsible authority so that the authority can respond appropriately. As Mr Bernasconi indicated the presence of shattered glass on the road was not sufficiently hazardous to cause him to report such an occurrence to the local authority. In the absence of a report by road users authorities such as the defendant must, generally speaking, rely upon inspection of roads to ascertain circumstances requiring attention. In Brodie v Single Shire Council (supra) Gaudron, McHugh and Gummow JJ said [at 582]:
"Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them."
The danger presented by material deposited on the road whether it be shattered glass or spilt oil could reasonably be expected to exist throughout the network of roads maintained by the defendant from time to time. The City of Swan, said Mr Foley, occupies one‑fifth of the Perth metropolitan area with a population of between 90,000 to 100,000 people growing at a fairly rapid rate. As mentioned, he said that within the boundaries of the city there were 1,300 kilometres of gazetted road of which about 1,200 kilometres were sealed. He made it clear that those figures did not include main roads and roads not under the city's responsibility. He described Malaga as an industrial/commercial area. He said that Beach Road is an arterial road linking Marmion Avenue in the west and, via Marshall Road, the Swan Valley. He described Oxleigh Drive as a local distributor road. The Annual Report for the City of Swan for the period 2001‑2002 described its responsibility for road infrastructure as part of its principal activities in that year disclosing a capital expenditure in that regard for that year of $6,523,560.
Mr Foley referred to the defendant's process for inspecting its road network and the records relating thereto. Oxleigh Drive and Beach Road were inspected on 9 and 10 January 2002, respectively. Both had been inspected on 5 September 2001. Mr Foley referred to the defendant's Procedure Statement for Ward Inspections dated 4 July 2002 (exhibit 12). He also referred to a system called "Customer Action Transfer System" or CATS. An employee of the defendant is, according to the procedure, to inspect all roads in accordance with an inspection frequency and report. Such reports are to be referred promptly to the administration officer in order that remedial work be passed on to the relevant supervisor for action. Non‑urgent matters are to be the subject of a written report to the engineering coordinator for the generation of a works order.
Mr Foley said that the City's inspection regime was based on inspection of roads every three to four months depending on the type of traffic and the amount of traffic. He described the City of Swan as being a partly inner, partly outer metropolitan council with a large proportion of rural roads. He contrasted the City of Swan with the situation of some of the smaller, more compact, inner metropolitan local government authorities which might be able to inspect their road network with much greater frequency.
When asked as to whether broken glass was a real problem on the city's arterial roads he replied:
"Actually its not, your Honour, because I must admit, normally if there is an accident and let's say the police are called, tow trucks arrive at the accident, you would normally think in most cases if its that sort of severe accident where there's a lot of windscreen glass, the matter would be reported, the police would be in attendance – normally I've seen in the past tow truck drivers actually sweep it up. If there's a lot of debris left over its really the responsibility of the people who had the accident to remove that from the roadway. From our point of view, your Honour, with a road such as this, if you've got a lot of glass on the road or sand, let's say if some sand falls off a truck, a lot of that would be very quickly removed by the action of the vehicles running over it. We've got 30,000 vehicles in one direction and 9,000 or 10,000 in the other direction running through that intersection. That material is going to be swept very, very quickly – due to the action of the – I mean, we've got a lot of trucks in that area. It is an industrial area. From the general path the traffic is flowing in – I'm not aware that its a major concern, just particularly glass. The main reason we sweep or any local authority sweeps the road, your Honour, is to remove the sand against the kerb. You don't find too much material out in the middle of the road; its really up against the kerb and that's where most of it gets swept due to the action of the traffic."
On the subject of road sweeping Mr Foley produced the defendant's road sweeping records for the relevant period. Both Oxleigh Drive and Beach Road were swept in July 2001 and again in November 2001.
Mr Foley referred to a print‑out of historical information concerning motor vehicle accidents at the corner of Beach Road and Oxleigh Drive derived from information provided annually by the Main Roads Department to the City of Swan. The information relates only to accidents reported to police pursuant to the statutory obligation on motorists to do so where the damage involved is in excess of $1,000 in repair cost. The print‑out indicates that there were some 34 reported accidents at that intersection between 25 March 1999 and 29 December 2003 being on average a report every six or seven weeks. Of those reported about one‑third were said to involve minor property damage only. Three of those reported involved a motor cycle. Only one of those reported was referable to the condition of the road, that apparently being the plaintiff's accident.
The plaintiff's claim in negligence against the defendant, as pleaded, particularises the defendant's negligence by alleging a failure to take steps to ascertain the presence of glass on the road. Implicit in that claim is the proposition that the defendant did not know of the presence of glass on the road at the time of the plaintiff's motor cycle accident. In the plaintiff's written submissions reference was made to inferred actual knowledge suggesting that by reason of the fact that the defendant's employees and/or contractors might pass through the intersection on a regular basis knowledge of the glass encountered by the plaintiff should be inferred or attributed to the defendant. I am asked to infer, firstly, that the defendant's employees and/or contractors did pass through the intersection prior to the plaintiff's motorcycle accident and that they would have seen the glass encountered by the plaintiff on the road. There was evidence that there was glass on the roadway at that particular intersection on a reasonably regular basis arising out of, presumably, minor motor vehicle collisions from time to time. There was no evidence as to when or how the glass encountered by the plaintiff came to be deposited upon the road. I might infer that it was deposited as the result of a minor collision between two motor vehicles but I am unable to infer from the evidence whether it was deposited there on the morning in question or whether it had been there for longer. In his closing oral submissions counsel for the plaintiff submitted that the defendant knew or ought to have known of the presence of the glass encountered by the plaintiff.
Whether the defendant knew of the glass is a matter of fact. Whether the defendant ought to have known is a matter of law.
This is not a case of constructive knowledge. In the context of allowing or permitting something to happen Kennedy J in Douglas‑Brown v Commissioner of Police (1995) 13 WAR 441 said at 446:
"Constructive knowledge in this context means either shutting one's eyes to the obvious, or failing to do something or doing something, not caring whether a contravention takes place or not."
There is no evidence to the effect that any council employee or contractor actually saw the glass encountered by the plaintiff and in any event, even if there were, the presence of glass or other debris on a roadway might not be such as to lead one to expect that an employee or contractor not charged with a duty to inspect road surfaces, might report the presence of glass or other debris. In this case I am not prepared to infer that the defendant knew of the glass encountered by the plaintiff on the road surface at the intersection.
The presence of glass on a road surface does not pose a hazard or risk for the vast majority of users of roads they being, of course, drivers of four‑wheeled vehicles of one sort or another. The presence of obstructions such as a fallen tree branch or material on the surface of the road such as oil which might render the road surface unsafe might well pose a risk or hazard for all users of the road in whatever type of vehicle.
As McLure J said in Town of Mosman Park v Tait [2005] WASCA 124 at par 49:
"It is erroneous to focus on the particular harm that eventuated and the steps that could have been taken to avoid that harm from which a finding of negligence usually follows. The essential question is whether the defendant's failure to eliminate the relevant risk showed a want of reasonable care (Tame v State of New south Wales (2002) 211 CLR 317 at [98]‑[99] per McHugh J). Proper enquiry of the breach stage of the negligence analysis involves identifying with some precision what a reasonable person would do by way of response to a reasonably foreseeable risk. (Graham Barclay at [192])."
In Town of Mosman Park v Tait the plaintiff had sued for damages she having injured herself by stepping into a hole on an oval within the Town. The plaintiff alleged that the Town had failed to have a proper system of inspection in place such that the hole was not detected by the Town and the risk removed. Her Honour said:
"That being the case, it was incumbent upon the respondent to demonstrate that there was some system of inspection which was an alternative to that which the appellant was using at the time of the accident which was free of or reduced the risk complained of and which was available in a practical sense: Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31 at [13]. That formulation requires an eye to issues of causation; that is, a system that would or could have prevented the respondent's injury: Trustees of the Roman Catholic Church at [27]. The respondent was required to identify with precision what a reasonable person would do, either by reference to industry standards or practice and the financial or other impacts of the proposed system: Trustees of the Roman Catholic Church at [14]."

The magnitude of the risk

As mentioned, the presence of shattered glass on a road surface is not an uncommon situation. It is not, as earlier observed, a risk for four‑wheeled vehicles or trucks. In the case of the plaintiff she apparently got into difficulties on this occasion. The journey that she was making when she did get into difficulties was a journey she had made many times before. She said that she would use that particular roundabout two or three times a week. The plaintiff agreed that glass on a road was something that would be frequently encountered. She qualified that by saying:
"Yes, you do, but not piles of it like that. Generally its scattered over an area."
Her initial description of what she encountered was a "substantial amount of glass that was quite concentrated in a strip probably about half a foot by, say, two and a half foot long". She said that at its highest point it would have been at least an inch thick and agreed that there was a certain amount of scattered glass within an area of about a five foot radius on the road surface. She was talking about windscreen glass. Mr Bernasconi, who was on the day of the accident working at the Beaurepaires' Store, said:
"There was glass – well, on the day of the accident there was glass to one side, a very weak spot of glass where obviously the tyres of vehicles had been travelling, a little bit of glass in the middle, another tyre mark and then more glass just off to the other side, that sort of covered – it was quite a big area, it was probably say three metres by two metres."
When asked if that was the entire spread of glass he said:
"That's the entire spread of glass, Yes. It was spread out a little more because some cars go right up to the kerb there, whether it be a truck and that, and it actually spreads it out a little bit more as well, it was quite thick the amount of glass that I did notice that was there."
He said that it looked like windscreen safety glass.
His description of the glass present on the road differs quite considerably from that of the plaintiff. In terms of the glass that caused difficulty for the plaintiff I accept what she said by way of description.
On the information available to the defendant from the Main Roads Department between 25 March 1999 and 29 December 2003 there were some 34 reported accidents at the intersection in question of which only three involved a motor cycle with only one of those being attributable to the condition of the road surface. It seems that the plaintiff herself had never encountered any difficulty in the past notwithstanding that she was a regular user of that roadway. The mere fact that the plaintiff, on a particular day in particular circumstances got into difficulty and suffered injury does not of itself give any indication of the magnitude of the risk involved. The mere fact of the presence of shattered glass on road surfaces from time to time would not be an exceptional or unusual circumstance. I might readily accept that the presence of oil spilled onto a road surface might make the surface quite unsafe for all users. While the presence of shattered glass on a road surface would not, in my opinion, fall into the same category I do accept that it might be more of a risk for motor cyclists and cyclists than it would be for other users of the roadway.
There is no doubt that this particular roundabout at the intersection of Beach Road and Oxleigh Drive was a very busy roundabout. As Mr Bernasconi said motor vehicle accidents involving collisions between vehicles was a regular occurrence. Equally regular was the deposit of debris and shattered glass from such accidents on the road surface. He said that he had never reported the presence of debris or glass on the road surface to the City of Swan. In cross‑examination he said:
"In all honesty I got sick and tired of helping people out at the intersection there from car accidents, punctured tyres and stuff like that just due to stuff on the road and that and I took it upon myself to actually pick up the major pieces, glass I didn't think would be such a worry on the road because it was small and I though it was insignificant."
In relation to the plaintiff's accident he saw no need to report the presence of glass on the road to the defendant. He confirmed that he thought it was insignificant. Shattered glass on the road surface was generally dispersed, crushed and broken down into small pieces. He said that normally glass on the road surface would be gone within a week. His evidence tended to mirror, to a degree, that of Mr Foley who indicated that, from the defendant's point of view, glass on the road would be quickly removed by the action of vehicles running over it. He referred to the nature of the area and the use of the intersection by trucks which would, he said, sweep such material on the surface of the road away quickly. He explained that from the perspective of the City of Swan the presence of glass on road surfaces from time to time was not a major concern.
I conclude that the magnitude of the risk posed by the presence of shattered windscreen glass on a road surface to road users was relatively low. I conclude also that the presence of shattered windscreen glass on the road surface resultant from motor vehicle collisions from time to time might be reasonably commonplace and not pose a significant risk to road users generally although, in the case of motor cyclists and perhaps cyclists the risk might be higher presenting a need for greater caution on the part of those users.
Mr Foley made it clear that the defendant did rely upon members of the public to report obstacles or material on the road that might require immediate attention. He said that in the event of such a report the defendant would respond to remove the obstacles or debris. Beyond that the defendant relied upon its road inspection system and its road sweeping operations (conducted by a contractor) to monitor and clean roadways. The defendant's ward inspections procedure (Exhibit 12) required the inspection of all roads as per the inspection frequency and reports on any road, drain, kerb and verge problems found. As mentioned, urgent matters in the form of problems or faults found were to be dealt with urgently. The main problems found on inspection of urban roads were potholes in roads, damaged sections of kerb, trip hazards on verges, missing warning regulatory or name signage and raised sections or holes in footpaths.
The plaintiff's accident occurred on 25 February 2002. Both Oxleigh Drive and Beach Road and the intersection of those two roads had been inspected on 9 January 2002 and 10 January 2002 respectively. Oxleigh Drive had been inspected, prior to that on 18 June 2001 and 5 September 2001. Beach Road had been inspected on 25 June 2001 and 5 September 2001. The inspection regime appeared to be, as Mr Foley said, based on intervals of three or four months for those roads. Oxleigh Drive had been swept, according to the defendant's road sweeping records on 5 November 2001 and Beach Road had been swept on 13 November 2001. Both had been swept in July of 2001.
In his closing submissions to me counsel for the plaintiff submitted that weekly inspections would be an appropriate regime, the basis of his submission being that, had there been weekly inspections the glass on the road encountered by the plaintiff would have been detected and removed. He submitted that the defendant was negligent in not having such a regime in place. There was no evidence to suggest that the presence of glass at the roundabout at the intersection of Oxleigh Drive and Beach Road had caused any motor vehicle accident other than that experienced by the plaintiff. Mr Bernasconi spoke of the regular presence of glass on the road and of regular traffic accidents at the intersection. He said that some young drivers would deliberately skid their wheels on glass on the surface of the road when passing through the roundabout thereby spreading shattered glass around the road surface and nearby. He gave no evidence of the presence of shattered glass on the road being a contributing or causative factor in any motor vehicle accident other than the plaintiff's. The plaintiff herself, on her evidence had negotiated the roundabout on many occasions without difficulty. Mr Bernasconi certainly did not see fit to raise any concern with the defendant. It seems that the defendant had not received any reports relating to the intersection other than that which concerned the plaintiff's accident on 25 February 2002. The defendant was in receipt of Main Roads data in relation to motor vehicle accidents at the intersection as mentioned above.

There was some attempt in the plaintiff's case to establish that the glass encountered by the plaintiff had been present on the road surface for a week or more. The evidence of Mr Bernasconi was that glass deposited on the road as a result of motor vehicle collisions would generally be gone within a week. He said, when asked how long shattered glass might stay on the road:
"Couldn't honestly say because by the time, say, if I noticed it, you know, the next day it could be gone. Nothing I really ever paid attention to, unless it was really bad and then you'd see it there for a couple of days or unless something brought my attention to the glass being on the road. Like I say, the biggest thing with that corner was that it was where all the young fellows would spin their wheels because they're going around a corner and to get their wheel spinning, whether it be – there was a lot of loose sand on the road there, too, because there's a big vacant block on this side and it used to blow onto the road as well, so it was just something to get the vehicles to spin the wheels virtually."
He went on to say:
"Like I say, by the time you've noticed it, it could have been there for two days, then cleaned up the next day or – just not very accurate with that. It could sit there for a while, sometimes it would get brushed up to the side of the kerb. It would sit there for you know a good week or until it was cleaned."
Counsel for the plaintiff asked me to infer that it was the defendant who was causing its employees to come to the intersection on a regular basis and remove glass. The evidence was, however, that it was the natural pounding of vehicles on the road surface which effectively ground shattered glass and sand to a fine state, generally accumulating against the kerb and amenable to being swept by the defendant's contractors in accordance with the regular sweeping regime.
The evidence before me clearly was to the effect that the presence of shattered glass, and for that matter, other debris on the road surface at the intersection concerned was a constantly changing situation. The evidence before me suggested also that the presence of shattered glass on the road surface did not pose a significant risk. In this case, the cause of the plaintiff's accident is said to be shattered glass. The plaintiff asserts that the content of the defendant's duty to the plaintiff, in accordance with the Amended Statement of Claim, was to take reasonable care to take steps to ascertain the presence of shattered glass on the surface of the thoroughfare, to ensure that the surface of the thoroughfare was free from shattered glass, to warn persons such as the plaintiff of the presence of shattered glass on the thoroughfare, to take steps to divert road users away from the thoroughfare in the event of shattered glass being present and to take such action as was necessary to ensure the safety of the plaintiff and other persons making use of the thoroughfare.
I conclude on the evidence before me that the presence of shattered glass on the road surface did not pose such a danger to road users as to require the defendant to have in place an inspection regime specifically for the purpose of ascertaining the presence of shattered glass on its road surfaces. It, appropriately, had in place a regime for the inspection of its road surfaces on a regular basis to ascertain the existence of problems and to deal with them. It was, as one would expect, reliant upon reports from the public and road users as to hazards from time to time.
It is erroneous, as was pointed out by McLure J in Town of Mosman Park v Tait, to focus on the particular harm that eventuated and the steps that could have been taken to avoid that harm. The essential question is, as she said, whether the defendant's failure to eliminate the relevant risk showed a want of reasonable care. It was incumbent upon the plaintiff to demonstrate that there was some system of inspection which was an alternative to that which the defendant was using at the time of the accident which was free of or reduced the risk complained of and which was available in a practical sense.
I conclude, having regard to the size of the City of Swan, the diversity of its roads and the extent of roads under its control that weekly inspections of its road system would be impractical. I infer that there are, within the defendant's area of responsibility, many intersections and roundabouts. I infer that the problems of debris and shattered glass on road surfaces are not confined to the intersection of Beach Road and Oxleigh Drive but are present throughout the defendant's road system and at many other intersections and roundabouts. Even if the defendant were to have undertaken monthly or fortnightly inspections of the intersection of Beach Road and Oxleigh Drive such a regime would not necessarily have saved the plaintiff from the accident suffered by her. In any event, the defendant's duty of care is not to any particular individual but rather to road users generally. Clearly, the plaintiff was a member of that category of persons. She was required to identify with precision what a reasonable person would do, either by reference to industry standards or practice and the financial or other aspects of the proposed system. (Per McLure J in Town of Mosman Park v Tait at [51]). It is not enough to, without more, suggest that a regime of greater frequency of inspection would be appropriate having regard to the accident suffered by the plaintiff. In this case, that is all that the plaintiff has done.
Clearly the defendant did foresee that its regime of inspection and sweeping would not exclude the risk of injury to road users as a result of the presence of debris or other materials on road surfaces. The perception of the defendant's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action or any other conflicting responsibilities that the defendant may have (Mason J at pp 47‑48 in Wyong Shire Council v Shirt (1980) 146 CLR 40). Having regard to all of those factors I conclude that the response of the defendant in terms of its inspection, sweeping and maintenance regime was reasonable. Even if, as I have mentioned, inspection and sweeping of its roads or some of its intersections were conducted on a monthly or fortnightly basis the risk of injury to the plaintiff would not have been eliminated or reduced having regard to the transient nature of the problem of shattered glass on road surfaces. The plaintiff has not, in my view, established the issue of causation. For the foregoing reasons I conclude that the plaintiff's case against the defendant must fail.
Paragraph 6 of the Amended Defence alleges contributory negligence on the part of the plaintiff suggesting that she rode in a manner and speed that in the circumstances was dangerous, that she failed to exercise the requisite degree of care required of a diligent motor cyclist in those circumstances and that she was not sufficiently experienced as a motor cyclist. Those allegations are not, on the evidence, made out.
There will be judgment for the defendant.