Treweeke v Wyong Shire Council

[1999] NSWCA 320

CITATION:	Treweeke v Wyong Shire Council & Ors [1999] NSWCA 320
FILE NUMBER(S):	CA 40106/98
HEARING DATE(S):	30/8/99, 31/8/99
JUDGMENT DATE:	31 August 1999
PARTIES :	JASON TREWEEKE v WYONG SHIRE COUNCIL & ORS
JUDGMENT OF:	Handley JA at 1; Sheller JA at 30; Beazley JA at 31

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6274/97
LOWER COURT JUDICIAL OFFICER:	Herron DCJ QC

COUNSEL:	Appellant - D G T Nock SC/D R Branwell Respondent 1 - Wyong Shire Council - D L Williams Respondent 2 - RTA - J D Hislop QC/ P A Regattieri Respondent 3 - (Maronese) - R K Weaver Simms Family - Miss S Norton/Miss L Christie
SOLICITORS:	Appellant - Abbott Tout Respondent 1 - Minter Ellison Respondent 2 - Crown Solicitor's Office Respondent 3 - Willis & Bowring, Caringbah
CATCHWORDS:	NEGLIGENCE-liability-motor vehicle accident-rule in Browne v Dunn-whether open to trial Judge to make finding of excessive speed as a result of conduct of trial-whether trial Judge overlooked documentary evidence in making finding of no misfeasance in repair of road surface-whether negligence in failing to erect appropriate warning signs
ACTS CITED:	State Roads Act 1986
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167
DECISION:	Appeal dismissed with costs to all respondents

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40106/98
DC 6274/97

HANDLEY JA
SHELLER JA
BEAZLEY JA

Tuesday 31 August 1999

JASON TREWEEKE v WYONG SHIRE COUNCIL & ORS


NEGLIGENCE - liability - motor vehicle accident - rule in Browne v Dunn - whether open to trial Judge to make finding of excessive speed as a result of conduct of trial - whether trial Judge overlooked documentary evidence in making finding of no misfeasance in repair of road surface - whether negligence in failing to erect appropriate warning signs

The appellant was the driver of a vehicle involved on a bend in a head-on collision with another vehicle. The other driver and four passengers in the two vehicles succeeded in their actions on the question of liability which was separately tried. The appellant had filed cross-claims against the Council and the RTA seeking contribution. The trial Judge found that the collision was caused by the negligence of the appellant in driving at excessive speed, that there had been no misfeasance on the part of the highway authorities in their repair of the road surface, and that there had been no need for additional warning signs at the site of the accident. The appellant claimed that it had not been open to the trial Judge to make a finding of excessive speed and invoked the rule in Browne v Dunn. The appellant also claimed that the trial Judge had overlooked documentary evidence on the question of misfeasance, and that the Judge should have found there was a need for additional warning signs on the bend in the road.
HELD : dismissing the appeal: (1) A finding of excessive speed was open on the evidence and there had been no procedural unfairness to the appellant. (2) There was nothing in the documentary evidence which undermined the finding that there had been no misfeasance in the repair of the road surface. (3) The trial Judge had not erred in finding that there was no need to erect additional warning signs.

ORDERS

Appeal dismissed with costs to all respondents.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40106/98
DC 6274/97

HANDLEY JA
SHELLER JA
BEAZLEY JA

Tuesday 31 August 1999

JASON TREWEEKE v WYONG SHIRE COUNCIL & ORS
JUDGMENT

1    HANDLEY JA: This is an appeal from a decision of Herron DCJ who heard five actions brought against the appellant by passengers in vehicles involved in a head on collision at a bend on the Budgewoi Road near Noraville on 14 April 1993. The actions were heard only on the question of liability.
2    At the time Mr Treweeke was driving his Ford panel van north on Budgewoi Road. As he negotiated a curve described as being about one kilometre south of Coloma Street and adjacent to a golf course, his vehicle got out of control, moved on to its incorrect side of the road, narrowly missed one south bound vehicle, and then collided with another being driven by Mr Craig Sims.
3    The plaintiffs included Mr Sims and members of his family and a Mr Scott and Sonia Maronese, who were passengers in Mr Treweeke's vehicle. The defendant filed cross-claims against the Wyong Shire Council and the Road Traffic Authority seeking contribution against any liability that might be established in favour of the plaintiffs. The road was vested in the Shire as the local authority but had been proclaimed as a main road in 1951 and was subject to the powers of the Authority as the statutory successor to the Department of Main Roads.
4    Following the filing of these cross-claims, the plaintiffs joined the Council and the Authority as additional defendants. After a six day hearing on the issue of liability, the Judge entered verdicts for the plaintiffs against the appellant and found for the Shire and the Authority against the plaintiffs and against the appellant as cross-claimant.
5    The defendant appealed from the dismissal of the cross-claims against the Shire and the Authority, which were final judgments, without challenging the judgments in favour of the plaintiffs. This created procedural difficulties which prevented the appeal proceeding when it was before the Court earlier this year. The appeal was adjourned on terms to enable the appellant to amend the notice of appeal and take other steps to overcome the procedural difficulties. The appeal in the action brought by Sonia Maronese has been prosecuted, the parties having agreed that the result in that appeal will determine the issue of liability in the other cases.
6    As previously mentioned, when the head-on collision occurred, the appellant's vehicle was on its wrong side of the road having failed to successfully negotiate a right hand bend. It was hardly surprising that the Judge recorded that it was not really suggested that Mr Treweeke was not guilty of any negligence, and that the question in the trial really became one as to what share in the responsibility for the accident should be borne by the public authorities. The Judge added that:

"… this was simply a case where negligence was to be inferred on the part of Mr Treweeke, he having driven around the curve probably at a speed which was excessive in the circumstances as a result of which he lost control of his vehicle".

7    Mr Nock SC for the appellant contended that a finding of excessive speed was not open to the Judge in view of the conduct of the trial and he invoked the rule in Browne v Dunn. Although it was never suggested to Mr Treweeke in cross-examination that he was driving at any particular speed in excess of his own estimate of sixty to seventy kph, the extracts from the transcript in the written submissions for the Authority show that all parties, including Mr Treweeke while he was in the witness box, were well aware that excessive speed was an issue. There is no substance in the submission that there was any procedural unfairness to Mr Treweeke because his cross-examination was not taken further. In any event, his Honour at black Appeal Book 60 asked Mr Treweeke:

"Well what is being put to you really as I understand it, you entered the curve at too fast a speed. What do you say about that?"

8    His Honour concluded:

"… the probabilities are that Mr Treweeke negotiated this curve at a speed which was excessive in the circumstances. Quite frankly I do not accept that his speed was something in the order of sixty to seventy kilometres an hour. I think it was much faster".

9    Apart from this being a clear case for the application of the res ipsa loquitur principle, the conclusion to which his Honour came on this question is amply supported by a substantial body of circumstantial evidence. I would therefore reject the first submission made on behalf of the appellant.
10    The evidence demonstrated that the Council and the Authority co-operated in the repair and maintenance of this road and the statutory basis for this appears in the State Roads Act 1986 which was in force when the last repair work of any substance was carried out on this part of Budgewoi Road before the accident.
11    The first part of the appellant's case against the two public authorities was based on misfeasance in 1989 in the repair of the road at this corner. The other part was based on their negligence in failing to erect appropriate signs to warn motorists, coming from the south, of the dangerous nature of this curve in wet weather.
12    At the time of the accident there was a sign indicating a curve in the road of the usual kind facing vehicles coming from the south. There were also chevrons or arrows on a post beside the road indicating the existence of a curve ahead, but as the Judge said it would have been quite obvious to a driver in Mr Treweeke's position that he was about to enter a curve as he drove north in daylight on the morning in question. There was also an eighty kilometre per hour sign painted on the road which the appellant noticed, but there was no evidence which established its location in relation to the curve.
13    It was suggested on behalf of the appellant that the eighty kilometre per hour sign was an encouragement or invitation to motorists coming from the south to increase their speed as they approached the curve. However the factual foundation for this submission was not established because there was no evidence of the speed limit south of that sign. Photographs in evidence show that the country on both sides of the road at this point was open and not built up and there is nothing to suggest that the speed limit was sixty kilometres an hour south of this sign. 14    There had been 6 serious accidents on this section of the road between December 1989 and January 1993, 3 in 1993. The appellant relied heavily on this history as demonstrating either that the road was negligently constructed or that the signage for the information of motorists was negligently inadequate. It is well established that a highway authorities such as the Shire and the Authority are not liable for mere nonfeasance in the maintenance or repair of the highway, but are only liable for active negligence in constructing or repairing a road so as to make it dangerous.
15    Evidence was given of the state of the road surface on the curve by persons who were at the scene of the accident the same day. Constable Lill said it was heavily patched, but did not indicate that there was anything dangerous about the surface. Shire employees engaged in road maintenance work said that there was nothing really wrong with the road surface. Mr Matthews, one of such employees, whose evidence was specifically accepted by the trial Judge, said that the road was in reasonable condition. There was also a substantial body of expert evidence and the Shire called Mr Williams, its senior engineer. The Judge found that the road work undertaken on this corner in 1989 was properly carried out and made the road safer. He continued “although there may have been patching at the scene of the accident or near the scene of the accident, it did not render the road unsafe". 16    He therefore found that there had been no act of misfeasance by the highway authorities. In reaching this conclusion he accepted the oral evidence of the Shire's witnesses, particularly Mr Williams and Mr Matthews, and rejected so much of the expert evidence as pointed to a different conclusion. The appellant therefore faces the usual difficulty in reversing such findings in the light of the principles established in Abalos vAustralian Postal Commission (1990) 171 CLR 167 and other cases.
17    In an attempt to bring this appeal within the exceptions to the general rule established in those cases, Mr Nock submitted that the trial Judge had overlooked undisputed documentary evidence which invalidated his findings. The documentary evidence relied upon included correspondence in 1989 between the Shire and a Mr Shepherd. Mr Nock particularly relied upon the statement by Mr Shepherd in his letter of 22 February that the surface of Budgewoi Road was starting to break up and that the fairly new road surface had obviously not been successful. This provoked a reply signed by Mr Williams of 1 May 1989 which included the statement:

"Some stripping of metal has been observed with the cause being attributed to suspect material used at the time of resealing. However the pavement now seems to have stabilised but its performance will continue to be monitored".

18    Mr Shepherd's home is situated some three kilometres south of the scene of the accident as shown on the plan at Vol 4 827. The Shire's letter therefore did not refer to the site of the accident or the work undertaken there in April 1989.
19    Mr Nock also relied upon the report of Mr Richmond, the expert for the Shire. He emphasised para 5.2 of the report which stated:

"Considering the geometry of the road and the likelihood of wear and tear due to traffic, it is considered that the life of the surface which had been applied in 1987 was substantially expired … “.

20    On this basis it was suggested that the surface should have been upgraded before the accident.
21    The opinion in question would support a case of nonfeasance rather than misfeasance, but in any event on the same page Mr Richmond stated that the road as shown in a photograph taken on the day of the accident or very shortly afterwards "was considered to be good and well maintained".
22    Professor Yandell who was qualified on behalf of the Authority, and whose evidence the Judge accepted at Red Appeal Book 71, stated in his report at 822, 823 that the subject road was well constructed and should not have been foreseen to be dangerous and that the repairs carried out in the intervening years had not made the road dangerous either. There was no evidence that the repaired potholes on the corner had caused or contributed to this accident apart from any film of surface water that had collected due to the rain.
23    The Shire’s pavement work records for 1989 were in evidence and show that work on this corner was carried out between 11-14 April over a distance of 300 metres and involved the application of two additional coats to the surface. They contain a technical description of the work and the materials used but there was no expert evidence that the nature of that work, or the nature of those materials as disclosed, was inappropriate so as to involve a misfeasance. There is therefore nothing in the documentary evidence which undermines the Judge’s findings.
24    The second part of the appellant's case was based upon negligence in the failure to provide additional signage for vehicles approaching from the south to warn motorists of the nature of the curve. The Judge held that neither the Shire nor the Authority was under any obligation to erect additional signage. The appellant's case depended on the accident history I have previously recorded, but the Judge found that over 12,000 vehicles a day used this road. This represents 4.38 million vehicles a year and 13.14 million vehicles over three years and in this context the accident figures do not appear to be high. Professor Yandell said there was no need for additional warning signs, and that the accident records showed that the curve was not particularly dangerous.
25    The appellant's attack on the Judge's findings on the second issue was initially based on the Authority’s own guidelines, extracts from which were referred to by Mr Barnes in his expert report. He quoted the following:

"When a length of pavement becomes slippery when wet the erection of W5-20 and W8-7 signs is to be regarded as a temporary measure only. Immediate action is to be taken to rectify the condition of the pavement and when this has been done the warning signs must be removed".

26    The signs referred to indicate that the road is slippery when wet. The guidelines also state:

"Warrants for the erection for the W5-20 signs are coefficient of friction less than 0.44 and/or more than fifty percent of accidents occurring under wet pavement conditions".

27    There was no evidence that the coefficient of friction on this curve was less than 0.44, but reliance was placed on the accident history as establishing that the second guideline had been satisfied. The guidelines as a whole were not in evidence, and there is nothing to indicate the number of accidents referred to in the passages quoted or the period over which they needed to occur before action as suggested in the guideline was required. I am unable to place any reliance on the incomplete extracts from the guidelines as demonstrating a failure by the Authority to act in accordance with its own guidelines.
28    There is no other expert evidence that additional signage should have been installed. I have already referred to the evidence of Professor Yandell that there was no call for additional signage. It must not be forgotten that the existence of the curve was not only indicated by the ordinary sign, but also by chevron signs as previously mentioned, and in any event was obvious to any motorist, especially in daylight as was the situation in the present case.
29    In these circumstances I have not been persuaded that the Judge's refusal to find negligence against the highway authorities based on inadequate signage for vehicles approaching this curve from the south was incorrect. The appeal therefore fails on all grounds and I would propose that it be dismissed with costs to all respondents.
30    SHELLER JA: For the reasons the presiding Judge has given, I agree with the orders his Honour proposes.
31    BEAZLEY JA: I agree.
32    HANDLEY JA: Those are the orders of the Court.