W M Driessen & Sons Pty Ltd v Municipality of Huon
[1990] TASSC 81
•1 February 1990
Serial No B4./1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: W M Driessen & Sons Pty Ltd v Municipality of Huon [1990] TASSC 81; B4/1990
PARTIES: W M DRIESSEN & SONS PTY LTD
v
MUNICIPALITY OF HUON
FILE NO/S: 245/1988
DELIVERED ON: 1 February 1990
JUDGMENT OF: Nettlefold J
Judgment Number: B4/1990
Number of paragraphs: 42
Serial No B4/1990
List "B"
File No 245/1988
W M DRIESSEN & SONS PTY LTD
v THE MUNICIPALITY OF HUON
REASONS FOR JUDGMENT NETTLEFOLD J
1 February 1990
On 21 September 1987 a Nissen Prime Mover registration number CI 6080 and a Tipper Trailer, apparently owned by the plaintiff, was being driven by Mr John William Driessen along Rankins Road towards the town of Franklin. In the course of the journey the unit left the road and rolled down a steep bank which was to the driver's left as he travelled towards Franklin. The unit was damaged. The quantum of the plaintiff's damage is agreed in the sum of $43,296.00.
The plaintiff sues to recover this amount contending that the defendant was negligent and guilty of improper maintenance.
The defendant did not call any evidence. It follows, of course, that the evidence for the plaintiff is not contradicted by other evidence. But it was tested carefully and extensively by cross–examination.
The evidence shows that Rankins Road is a minor rural road serving a couple of farms and about six houses. It runs up a steep hill from Franklin. The plaintiff's driver, Mr Driessen, was very familiar with the road as he has been living in the Huon Valley for about 30 years and for about 15 years has had an interest in a farm which fronts on the road.
At the time of the accident the trailer was carrying about 8 tons of superphosphate. The prime mover which was being used had a tare weight of 7 tons and the single axle trailer had a tare weight of approximately 4 tons.
Mr Driessen drove the unit round what he described as a sharp bend. He observed a Ford Falcon station wagon travelling slowly in the opposite direction. Mr Driessen's evidence is that the driver of the car pulled "completely over onto the side" to let Mr Driessen's unit through. Mr Driessen proceeded to attempt to pass the car and, as he did so, he felt the front wheel come into contact with soft ground. Thereupon he tried to steer out of that position but the unit did not respond to his efforts. He felt the back end of the prime mover slide and the unit went over sideways. The unit rolled completely over and came to rest against a big pine tree about 15 metres down the bank.
Mr Driessen says that he negotiated the last bend before the accident site at about 15 – 20 kilometres per hour. He estimated that the station wagon was about 20 feet away when he first saw it. When he saw the approaching vehicle he slowed the unit by applying the brakes and proceeded to attempt to pass it. But, when the rear wheels of the prime mover were opposite the car, the unit tipped over.
On Mr Driessen's side of the road there was a strip of loose gravel which he estimated as being two to three feet wide. He estimated that the outside of the front tyre of the prime mover was about 20 inches from the edge of the bank when he started to overtake the other vehicle.
Mr Driessen's impression is that, after he felt the prime mover slowly sinking, he continued to drive for about roughly 25 feet, and then pulled up. He became aware of becoming completely stationary but only for a brief period.
Questioned by his counsel as to whether he could have stopped before the front of his unit reached the other vehicle his response was that, in retrospect, he feels he could have done.
During cross–examination it became clear that Mr Driessen was very familiar with the road, at least in a general way. He accepted that, looking at the road where the accident occurred and going from his right to his left as he travelled towards Franklin, there was "well travelled road or what appeared well travelled road to a non–travelled section", the "non–travelled section" being the two to three feet strip on his left at the edge of the road. He said the appearance of this section of road was not uniform right across the width of the road. The real difference in appearance was just the well known difference between a gravel surface pressed down by traffic and a gravel surface left loose because the traffic did not use it, the latter section, of course, being the outer two to three feet on his side of the road.
Asked "And would you agree with the proposition that if you're driving a 19 ton vehicle you should avoid going near the edges of the road", he replied, "Now I'd say that. Yes".
Mr Driessen said that, when he saw the other vehicle, he was "not really" aware there might be some difficulty in passing it. He said that there seemed to be plenty of room to go through. But when asked, "Well you pulled to the edge, your extreme left hand edge of the road?" he replied, "That's right yeah". Asked "... so that you went to the extreme edge of the road?" he replied, "Right, yeah".
Mr Driessen agreed with the cross–examiner that he may have had time to stop before reaching the approaching vehicle but he added, "But it didn't sort of enter my head because there just seemed to be enough room to go through". He denied an assertion that he may have been forced to attempt to pass the other vehicle because he was travelling too fast. He agreed that he did not try to pull up and agreed that it would probably have been prudent to have done so.
The following passages in his evidence while under cross–examination are important:
"I stopped after I felt the soft gravel ... because I felt the lorry sinking and, if I kept going, I thought I would have gone into more trouble. I couldn't steer out of it.
Initially when I first felt the soft stuff it just went deeper and deeper.
When I first felt it I tried to pull it back out and it wouldn't move, that's why I kept going what about 10 feet or 20 feet or something. ... It didn't accelerate it was just sort of rolling ... I tried to drive out of it, tried to steer it back out.
I tried to steer it back towards the middle of the road."
The plaintiff called Mr Edgar Roy England an experienced engineer. Mr England examined the scene of the accident in early December 1987. He noticed a sign reading "Soft Edges" erected at approximately the apex of the bend which Mr Driessen negotiated just before the accident (see P3). During his examination of the scene Mr England found a board lying on the ground a short distance on the downhill, ie Franklin side of the accident scene that also had "Soft Edges" written on it.
Mr England found the road to be typical of many minor rural roads in Tasmania. This road is a quite standard example of the "cut and fill" technique of developing a rural road. The method involves cutting into the side of the hill and taking the material extracted from there and putting it on the other side of the road, to fill up the space between the natural ground surface and the level required for the road surface. That method had been followed at the site of the accident and at that part of the road there was approximately two metres of fill material at the outer edge of the downhill side of the road. The fill material was a clay material. The two or three feet of road which Mr Driessen referred to as the "untravelled section" Mr England found to be a clay shoulder with gravel over the top of it which was only, perhaps, half an inch or an inch thick suggesting that the gravel had just been blown to the that position or, in some way, spread across the top of it in this thin layer.
An important exhibit in the case is exhibit P5, a diagram showing the main points about the road at the accident site and showing Mr England's reconstruction of the accident. The important features of that diagram for present purposes are the following:
(1)the total width of road including the table drain was 5.5 metres. Of that, 700 millimetres was taken up by the table drain.
(2)the substantial gravel pavement of the road was 3.9 metres wide.
(3)the remainder of the 5.5 metres width was taken up by 900 millimetres of clay fill covered by the thin layer of gravel mentioned above.
(4)in that 900 millimetres section close to the outer edge of the substantial gravel pavement, or main travelled section of the road, there was a line of cracks showing in the road surface.
(5)the natural surface, which formed a foundation for the clay fill under the 900 millimetre wide section was on a substantial slope of the order of a fall of one in three. It should not be overlooked however, that in oral evidence Mr England said he thought the slope was more like one in two.
Mr England's evidence is that there is a fairly standard width for trucks which is 2.4 metres, and the Ford station wagon would have been 1.8 metres.
Mr England felt that the road surface gave the appearance of having the same material right across the width of it from the table drain, the difference being that the main travelled portion was of a very hard, smooth, compact surface, obviously frequently travelled on, in a very good state of repair for a gravel road, whereas the remaining surface on the outside of the road out to the base of the blackberries was a looser type of material, a gravel but of the same colour as the main travelled section of the road and obviously of the same material.
On inspection Mr England found cracks in the road surface at various places across the width of 900 millimetres shown on P5.
There is the following important passage in Mr England's evidence:
"QMr England if we can assume for a moment that the untravelled portion of the road was something that, something different to what it turned out to be, that it was in fact compacted and a very safe portion of the road and that a vehicle could safely drive upon it, with your measurements taken at the scene and your knowledge of the width of the vehicles, would there have been sufficient room for those two vehicles to have safely passed at that point?
AWell, there was room for them to pass on the width of the road that appeared to be constructed, as they appear to be constructed. The safety of it depends on the strength of the embankment below. I think, having the ability to see the embankment after the accident happened, even had the road been properly constructed, the embankment would still have failed beneath the weight of the truck on the outer edge."
Mr England felt that on the section of road, immediately before the place where the accident occurred, the very steep bank was hidden from a driver's view by blackberry growth. The appearance a driver had approaching that area was of a road which was basically on solid ground. There was no evidence of there being a high bank in the area.
Mr England said that the cracks in the 900 millimetre wide "untravelled section" were caused by the subsidence of the embankment beneath the road under the weight of traffic on the surface. Of course, Mr England recognised that some of the cracks were caused in the accident.
Looking at the long depression caused by the truck shown in P1F, Mr England said that, as the truck progressed along the edge of the road its passenger side wheels gradually became further embedded into the softer material. He said that the effects of that were: (1) any steering movement can only be done by the one wheel which is back up on the firm road surface, (2) it is more likely that, with fairly light loadings on the front wheels of such a truck, the wheel would slide sideways rather than pull the truck and the driver would have no ability to pull the truck back on the road. The truck movement would be wholly controlled by the way in which the bank subsided, and, because the subsidence of the bank would be generally down and outwards the truck would tend to move down and outwards with that subsidence, away from the centre of the road all the time.
Mr England was of the opinion that originally the road was constructed with a pavement width of 3.9 metres (see P5). He feels that the thin layer of gravel over the 900 millimetres section has been swept there over a period of time, not necessarily in one regrading of the road but possibly over several regradings. That section of gravel has gradually extended out "by the action of maintenance of the road and this is a very common thing I have seen many times over".
Mr England's opinion was that guideposts should have been installed along this road to keep vehicles off this soft section of the road. He has indicated on P5 the line along which the guideposts should have been erected. That line is in the 900 millimetre width of road and 300 millimetres from the outer edge of the main travelled section of the road. Mr England said the guideposts are useful for two reasons:
(1)they delineate the section of a road pavement which is safe for vehicles to travel on.
(2)they are a great help for night driving as they give some reference point where the edge of the road is, particularly where if they get off the road they are going to go over a very steep embankment.
Mr England said that there was no great cost in putting in a few guideposts, on that road they could be spaced quite widely.
As to the efficacy of "soft edges" signs Mr England said, "My experience has been that you can erect all the 'soft edges' signs you like but if a driver needs to pass another one he forgets about the fact the sign is there".
Mr England was asked the following question:
"QFrom your observations at the scene of the accident and viewing the photographs in some detail, in your opinion was there anything that may have alerted the driver as he approached the scene of that accident on that particular day that there may be anything other than a safe road along that untravelled portion right up to the edge of the road?"
His answer was:
"ANo I think I can say from my own point of view that if I had been in that position I would have thought the whole of the width was trafficable."
During cross–examination Mr England accepted that, excluding the width of the table drain there was a space of 4.8 metres between the "cut side" of the station wagon and the embankment side of the truck. The combined width of the two vehicles was 4.2 metres leaving a clearance of 600 millimetres. However, Mr England did not think that it was intended to use the whole of that clearance but, once the control of the direction of the truck was lost because of the subsidence of the road the truck veered outwards and, then, by the time it stopped and turned over it had used the whole of the available width. But he was questioned on that answer and there was the following exchange:
"QIt was possible for it to pass at a closer distance than 600 millimetres or the distance it in fact passed – the truck driver could have got closer to the car?
ANo. You've got to realise that when a truck is sweeping around a stationary car the rear wheels of the semi trailer cut well inside the track of his prime mover. He has got to allow much bigger clearance with his prime mover so that when the rear of the trailer comes passed the car it is still far enough out to clear it.
QSo you are saying that it was inevitable that the truck had to go to the extreme left if it was to pass at that point?
AVery close to the edge, yes."
Later he was asked:
"And the evidence you agree was that the truck was right over to the edge, Mr Driessen's evidence?"
He replied:
"No, no, not at that point where he first started to sink in he was just off the compacted surface."
Mr England agreed with the cross–examiner on the following points:
(1)it would have been preferable for the truck driver to have pulled up and arranged with the other driver to either reverse to a wider section of road or go around to the left of his truck, and in effect, change sides.
(2)even if this road was not graded at all, after a substantial period of time the appearance of the "untravelled section" would be very much the same because of the action of vehicles throwing gravel across it.
(3)the accumulation of fine gravel on the edge of the road is different to other country roads of the same type only to the extent that there is more width on this road than there is on most of them. But the thickness is not different and the appearance is not different. It was not necessary to restrict the gravel from that area. The gravel can have value there by helping to keep the road dry. In fact the council could not stop the gravel getting on to that area.
(4)"basically" there was nothing the council could have done apart from the erection of guideposts.
(5)this is about the lowest class of rural road.
(6)to be consistent the council would have to put the guideposts on all the roads in the municipality of a similar type.
(7)the driver should not have kept on going forward when he felt the wheel strike the soft material, "he would only be driving to his doom".
(8)he does seem to have agreed, in effect, that there was some difference in the appearance of the "untravelled section" and the main travelled section but only because the gravel on the "untravelled section" is finer than the gravel on the main section and there are fewer tyre marks on the "untravelled section". But both sections had a uniform level giving the appearance of being graded flat.
(9)if an experienced truck driver knew there was this steep bank at the accident scene he would not have expected the road to bear the weight of his truck and would not have attempted to use the whole of the width of the road. He would realise that it was dangerous to do that.
Mr Ikin the loss assessor, examined the scene on the day of the accident. He estimated that it was 80 yards from the corner to where the truck actually rolled off the road. He found signs that other vehicles had driven to the edge of this road. There were a lot of blackberries and shrubbery up to the edge of the gravel verge. There were a lot of blackberries below the road edge, "but there were no indications actually where the true road finished and where the gravel was on the edge of it, it had tyre marks on it, it appeared to be carrying traffic". There was no indication of the soft edges on the road. He felt that the best way to describe his complaint about that part of the road was that there was a "false road section". It had the appearance of being roadway but was not built as a road. "But the gravel had smothered over the blackberries and then these blackberries were growing right to the very edge of the built up area". Within a few metres of the accident scene on the uphill side the apparent slope of the land off the road was reasonably steep but you "could not say exactly" as it was covered in blackberries, bracken and other growth. On examination of the scene Mr Ikin found a crack in the surface of the "untravelled section" which is nearer Franklin than the final point reached by the truck. (See P1F(g)).
By Answer to Interrogatory the defendant admitted having carried out periodic maintenance work on the road, maintenance grading, pot holing and resheeting of the open surface with local gravel extracted from quarries.
On that material I have found the question whether the defendant should be held liable a difficult one. Mr Driessen drove badly and there is a strong temptation to say that it was all his own fault. There is no doubt that the essential cause of the accident is shown on P5 by Mr England. That is to say, the weight of the truck overwhelmed the bank of clay fill material under the edge of the road, that clay fill material having a natural tendency towards instability because of the angle of repose of the clay. To take a heavy truck on to the "untravelled portion" of this road, as counsel called it, was a dangerous thing to do. As an experienced truck driver Mr Driessen should have been aware that it was a dangerous thing to do. He should not have attempted to pass as and where he did. He should have done one or other of two things:
(1)stop and arrange for the other driver to pass to his left, he, of course, pulling right over to the right or uphill side of the road for that purpose, or
(2)arranged for the other driver to reverse to a wider section of road and passed the other vehicle there.
But long reflection on a difficult case has led me to the conclusion that the defendant was also negligent for the following reasons:
(1)the section of road on which the accident occurred was dangerous. I think that we would all be very clear that it was dangerous if a tragedy had occurred and Mr Driessen had lost his life as he might well have done.
(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 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 employer/employee 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. On the subject of apportionment of blame one has regard, of course, to the factors of causation and the culpability of each party. It should not be overlooked that the breach of duty by the plaintiff's driver is a breach of a "self regarding duty". The plaintiff's damages are reduced by one third for contributory negligence.
Counsel for the defendant argued that, even if the defendant was held to be careless, it was not liable because it is a local authority having power to maintain a road and is not liable for non–feasance. It is liable for misfeasance but failing to erect guideposts is non–feasance and, hence, the plaintiff's action should fail. I reject that argument. The reasons for rejecting it appear in the statements of principle in the leading case of Gorringe v the Transport Commission (Tas) (1950) 80 CLR 357 although, of course, in that case the plaintiff failed. Those reasons are as follows:
(1)the defendant had the management, care and control of this road (Local Government (Highways) Act 1982, s21).
(2)it 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.
The evidence establishes that the defendant did do maintenance work on the road. That maintenance work left the dangerous situation already described. The defendant took active steps and took them negligently. The case falls within the following statement of principle by Lush J in McClelland v Manchester Corporation [1912] 1 KB 118 at p129:
"It is, I think, clear law that when a local authority undertakes and performs a duty, whether they are bound by statute to do so or whether they have an option to perform it or leave it unperformed, however it arises, they are bound to exercise proper and reasonable care in its performance, and that there is no difference in this respect between a public body and a private individual who does an act which if carelessly done may cause injury to others. ... If a duty is undertaken and improperly performed and actual damage is occasioned thereby the person injured has, as I have already stated, a perfectly good cause of action."
That statement of principle was accepted by Latham CJ in Gorringe's case, pp364–5, and apparently by Fullagar J p380.
The defendant had control and management of the road and it did work on the road. The consequences of doing that work have to be examined. The consequences here were that a dangerous "trap" was actively maintained and no adequate steps were taken to guard against it. On that basis the defendant is liable, the plaintiff's loss having been caused in part by the "trap". (McDonogh v Commonwealth of Australia (1985) 9 FCR 360 at p366; see also Buckle v Bayswater Road Board (1936) 57 CLR 259 at pp283–4).
This is a case of loss arising from the dangerous condition of a highway resulting from the improper carrying out of highway work by the defendant (s21(4) of the Local Government (Highways) Act, 1982). The work which the defendant admits carrying out left 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. The loss suffered by the plaintiff was in fact a consequence of the careless execution of this work by the defendant. The non–feasance – misfeasance dichotomy does not give the defendant any immunity from liability for that civil wrong. It was an active agent in causing an unnecessary danger in the highway and is liable to the plaintiff, a person suffering loss in consequence of that unnecessary danger. The defendant exercised its powers and failed to exercise them with reasonable care with the result the plaintiff suffered loss. The defendant has no immunity from liability for that loss (see Gorringe (supra), p378 per Fullagar J). If the maintenance grading work done by the defendant had been left undone the probability is that cracking and other evidence of unreliability of surface in the 900 millimetre wide section would have been clearly apparent. That being so the "trap" which was a cause of the plaintiff's loss was a consequence of the work of the defendant. The defendant was an active agent in bringing about an unnecessary danger, namely, entrapment. (See also Grafton City Council v Riley Dodds (Australia) Ltd [1956] NSWSR 53).
For these reasons there will be judgment for the plaintiff for $28,864.00.
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