Walton v Shire of Toodyay
[2005] WADC 209
•11 NOVEMBER 2005
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : COMMISSIONER ARCHER | ||
| HEARD |
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| DELIVERED | : 11 NOVEMBER 2005 | ||
FILE NO/S |
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| BETWEEN | : LUCINDA WALTON |
Plaintiff
AND
SHIRE OF TOODYAY
Defendant
Catchwords:
Negligence - Liability of statutory authority - Statutory immunity - Whether inspection regime reasonable - Turns on its own facts
Legislation:
Fatal Accidents Act 1959
Local Government Act 1995
Result:
Judgment for the plaintiff
[2005] WADC 209
Representation:
Counsel:
| Plaintiff | : | Mr K J Bradford |
| Defendant | : | Mr J Eller |
Solicitors:
| Plaintiff | : | Bradford & Co |
| Defendant | : | John Eller |
Case(s) referred to in judgment(s):
Brodie v Singleton Shire Council (2001) 206 CLR 512
Chance v Alcoa of Australia Ltd [1990] Aust Torts Reports 67-719
City of Ballarat v Perovic (2001) 4 VR 1
Coco v The Queen (1994) 179 CLR 427
Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563
Fox v Percy (2003) 214 CLR 118
Lanza v Codemo [2001] NSWSC 845
McIntyre v Ridley District Council (1991) 56 SASR 343
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Puntoriero & Anor v Water Administration Ministerial Corporation (1999)
199 CLR 575
Sutherland Shire Council v Henshaw [2004] NSWCA 386
Tame v State of New South Wales (2002) 211 CLR 317
Temora Shire Council v Stein [2004] NSWCA 236
Case(s) also cited:
Birkholz v RJ Gilbertson Pty Ltd (1985) 38 SASR 121
Calvert v Shire of Gingin (2004) 35 SR (WA) 201
Commissioner of Main Roads v Jones (2005) 215 ALR 418
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hagger v City of Fremantle [2003] WADC 206
Hoyts Pty Ltd v Burns (2003) 201 ALR 470
Jones v Dunkel (1959) 101 CLR 298
[2005] WADC 209
Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77; [1999]
NSWCA 28 Leichhardt Municipal Council v Green (2004) Aust Torts Rep 81-753; [2004]
NSWCA 139
Richard Evans & Co Ltd v Astley [1911] AC 674
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR
431
Sutherland Shire Council v Pallister [2002] NSWCA 66
[2005] WADC 209
COMMISSIONER ARCHER
COMMISSIONER ARCHER:
The claim
1 On 17 June 2001, the car which the plaintiff was driving in Toodyay
left the road and crashed into a tree. In the car were the plaintiff and her husband. The plaintiff was seriously injured and her husband killed. The plaintiff brings an action in respect of her own injuries and an action under the Fatal Accidents Act 1959 in respect of the death of her husband. Both matters were heard together in relation to the issue of liability only.
The accident
2 The accident happened on Woodendale Road in Toodyay. It was
common ground that there was a guide post some distance before the right hand bend, that on the bend itself there was a driveway and that there was a white marker on one side of the driveway ("the original driveway marker"). The surface of the road was gravel. It was the middle of the day.
3 The plaintiff and her husband had been at the home of the plaintiff's
parents-in-law. They were returning to Perth. The plaintiff said that as she was approaching a right hand bend on Woodendale Road, "[i]n following the guideposts going forward, looking at those as well as the road and the treeline, I realised as I came up on the driveway that I had lined my vehicle up with the guide posts and I was concerned at the direction I was headed so I slightly adjusted my steering to the right. I felt the car slide, I took my foot off the accelerator and the car seemed to be out of control after that". Her husband said "don't panic". The next thing she recalled was waking up in the car. It was clear that she was saying that she had lined the car up with the guideposts and the original driveway marker.
The plaintiff was adamant that she did not brake. In her evidence, she demonstrated the steering adjustment with a minimal movement.
5 The plaintiff estimated she had been driving between 60 to 80 km an
hour at the time that she lost control of the car. She said she was not in a hurry. There is no evidence that the plaintiff was under the influence of drugs or alcohol, or was distracted in any way. The weather was fine. The car was only a matter of months old and was regularly serviced.
6 The plaintiff and her husband had visited his parents fairly regularly
over the previous 16 years. More recently, as they were storing some
[2005] WADC 209
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furniture in the home of the husband's parents, they had gone there more often. The plaintiff gave evidence that they visited there on the two weekends prior to the accident. On each of the last two weekends, the plaintiff had driven the car. Apart from the last three weekends, the plaintiff estimated she had driven on the road once or twice a year for that 16 year period. In addition to that, she said she had been a passenger on that road four to five times a year over those years. The plaintiff said that, when she was driving in Toodyay, she was reliant on the trees and the guide posts alongside the road.
Skid marks
7 Shortly after the accident, various emergency services attended,
including Senior Constable Hickey from Toodyay. A video was also
taken of the scene. That video was tendered in evidence.8 The senior constable made a note of what he described as two skid
marks on the road. He noted "a 45 metre skid to the left hand side" and "22 metre skid to tree". He said there was a gap between these two marks, but couldn't remember the length of the gap.
9 He said the 45 metre skid began from opposite the driveway, with
the marks showing that the wheels had been on the correct side of the road but close to the centre. He said that the marks started before what he described as the negative camber. He also believed that both marks had been caused by the same vehicle, and that that vehicle was the plaintiff's vehicle. He said he thought that because "when you look back up from the vehicle they are in a direct line".
10 The senior constable candidly conceded that he had very little
experience in attending the scenes of accidents. There was no evidence
that he had any particular training or qualifications in that regard.11 Interestingly, Senior Constable Hickey expressed the view that it was
not necessary to brake to leave skid marks. He said "if the vehicle slides, it can still cause a mark in the road but you may not be putting your foot on the brake". However, he said "from memory, looking at the skid marks they were going in quite a straight line. So I would be quite sure in saying that they were from braking rather than anything else". It was put to him in cross-examination "isn't it fair to say, though, if a vehicle was going sideways across the gravel road there would be very wide scuff marks rather than narrow skid marks?" and the senior constable answered "that would be probably – yes, that would be right". However, in re-examination he readily conceded that he did not have the expertise to
[2005] WADC 209
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distinguish between a brake mark and a mark left by a vehicle that has lost its traction. In view of the senior constable's self-confessed lack of experience, his evidence as to the cause of the marks is of little weight.
12 The plaintiff called an engineer, Mr Johnson. Mr Johnson has
a Bachelor of Civil Engineering majoring in traffic engineering and engineering construction. He has a Masters of Engineering Science degree majoring in traffic and engineering and pavements engineering. He has a number of certificates in traffic accident investigation and measuring at the scene of traffic accidents. He has been significantly involved in the investigation of traffic accidents and their causes for the last 14 years. I accept that Mr Johnson is a well qualified expert in this area.
13 Mr Johnson explained the difference between skid marks and slide
marks. Skid marks are locked wheel marks. Slide marks may occur when
a vehicle's wheels have lost traction with the road.14 Mr Johnson explained that slide marks will usually be wider than
skid marks. Skid marks will normally have a mound at the end of them because all of the surface material is "bulldozed up and ends up in front of the wheel". He said that a person would need to have some knowledge to be able to assess the difference.
15 Under cross-examination, he said that, in his opinion, the marks he
had seen on the video were definitely slide marks not skid marks. While it is true that his opinion was based purely on what he could see from the video, it is sufficient to cast doubt on the evidence of the senior constable that the marks were skid marks, particularly combined with the senior constable's confessed lack of experience. Given the evidence of the plaintiff that she did not brake, I am satisfied that the marks were not skid marks caused by the plaintiff's vehicle.
16 Mr Johnson did say that if the marks had been skid marks caused by
the plaintiff's vehicle, the vehicle would have been travelling at least 80 kilometres per hour. However, that is not inconsistent with the plaintiff's estimation of her own speed. Furthermore, in light of my finding that the marks were not skid marks caused by the plaintiff's vehicle, the estimation of speed is irrelevant.
Guide posts
17 In addition to Mr Johnson, the plaintiff called another engineer,
Geoffrey Cox. Mr Cox has a Bachelor of Civil Engineering from the
[2005] WADC 209
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UWA and a Master of Science in Civil Engineering from Purdue University in Indiana. For a considerable part of the 30 years since he qualified, he was employed by the Main Roads Department. He has substantial experience in construction and design of roads and has particular experience with gravel roads. He gave evidence that in his working capacity he was required to know about the Policy for Geometric Design of Rural Roads, the Australian standards in relation to road signs and roads, and the Unsealed Roads Manual Guidelines to Good Practice. I have no hesitation in accepting Mr Cox as a highly qualified expert.
Mr Cox attended the scene of the accident on 7 December 2004. That of course must be borne in mind in considering the weight of his evidence. However, while some objection was made to the fact that the measurements were taken some time after the accident, it was not disputed that the guide posts, the driveway and the original driveway marker were in the same position at the time that they were measured and photographed as they had been at the time of the accident. It seems, however, that the camber may now be different and another driveway marker has been erected.
19 Mr Cox explained that the Australian standards recommend spacing
of guide posts on curves at intervals dictated by the curve radius. For a road with a radius of approximately 380 metres, the recommended guide post spacing would be 20 metres. Mr Cox calculated the curve radius of Woodendale road by measuring the angle and the secant and performing a geometric calculation. That gave him a curve radius of 380 metres. He also checked his calculations by measuring from an aerial photograph, from which he obtained a result of 360 metres.
20 Mr Cox also measured the distances between the guide posts and the
original driveway marker. From the perspective of a driver travelling in the direction of the plaintiff, as one approached the right hand curve there would be a guide post marker on the left hand side. Forty-five metres past that, and set back from what would have been the appropriate line for a guide post, would be the original driveway marker. A further 37.2 metres after that would be the next guide post. Accordingly, the distance between the actual guide posts was over 80 metres, four times the recommended spacing. Even had the driveway marker been on the correct line, it still would have been approximately twice the recommended spacing away from the guide posts on either side.
Compliance with Australian Standards is not mandatory. However, it may provide some indicator that the guide posts were inadequate.
[2005] WADC 209
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22 Further, the original driveway marker had the appearance of a guide
post. Unfortunately, it was not in line with the previous guide post, nor where it should have been placed were it a guide post. Rather, it was set back from the road. A driver approaching the right hand bend could be misled by that marker into thinking the road went slightly to the left, and it could also disguise the fact that the bend was there at all. It is clear from the plaintiff's evidence, which I accept, that the plaintiff was misled by that marker. While she had previously been on that road and had driven it on occasions herself, I do not think that the frequency over that period of time was sufficient to give her such a degree of familiarity with the road that would mean she should not have been misled by the guide posts or that she in fact wasn't.
23 The plaintiff's evidence was supported by a number of objective
findings, including the layout of the road itself and the physics of what happens when a car begins to lose control, as explained by the expert Mr Johnson. Further, while I am alert to the cautions expressed in Fox v Percy (2003) 214 CLR 118 the plaintiff gave her evidence in a very straightforward and compelling fashion. I accept her evidence in its entirety.
24 Mr Cox also commented on the fact that the original driveway
marker was not in the correct line for a guide post. Mr Cox said it would be potentially confusing and "creates, in combination with the crest of the curve and a curve, some difficulty in interpreting the road geometry coming up ahead". In my view, that was not a matter upon which expert evidence was required. That observation accords with commonsense and was indeed the evidence of the plaintiff herself as to the effect that the original driveway marker had upon her. However, if it is necessary to rely on Mr Cox's opinion in that regard, I would.
25 Mr Cox expressed the opinion that the spacing of the guide posts was
not safe. He drove the road himself and said "the guide posts simply didn't provide me with the visual clues that I would have got if there had been an appropriate spacing". He said that was his opinion based on what he saw leading up to the curve, and that his opinion was not influenced by the camber of the road at all. That was significant in light of the fact that the camber may have changed between the date of the accident and the time that Mr Cox saw the scene, but the spacing of the guide posts had not (apart from what appeared to be the addition of a second driveway marker). However, in light of the plaintiff's evidence, which I accept, that she was misled, it is unnecessary to rely on this opinion.
[2005] WADC 209
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26 I should also note that, for the length of the driveway, there was no
vegetation lining the side of the road. This could also have impaired the
ability of the driver to gauge the curve of the road.27 While the width of the driveway when it met the road was 40 metres,
it was 8 metres at the entrance to the gate. Accordingly, guide posts could have been placed within the 40 metre width of the driveway. In any event, even placing a guide post in the correct alignment on either side of the driveway would have been a significant improvement. The cost would be minimal.
The camber
28 There was also evidence about the camber of the road. In this
regard, the time at which the various measurements were taken is significant as it appears that the camber of the road changed over time. However, there is sufficient evidence to suggest that at the time of the accident the camber was less than perfect.
29 Senior Constable Hickey saw the road on the day of the accident. He
said that, as you went around the right hand bend, the road "comes off into what is called a negative camber, which means it leans away from the middle of the road".
30 There was also evidence from a Mr Cooper that he had inspected the
site of the accident 19 days later on 6 July 2001. He was a technical
officer with the Main Roads Department. In his report, he wrote:"Observation of this section of road and in particular the
southern (second) curve involving the accident revealed:· Poor horizontal and vertical geometry of the reverse curves especially the southern curve.
· Excessive and inconsistent cross fall of pavement through
the southern curve.· Poor surface, loose stones across the majority of the road's surface."
In his oral evidence, he had difficulty explaining what he had meant by those observations and he also appeared to have difficulty in recalling the site of the accident. Accordingly, his evidence was of limited value.
[2005] WADC 209
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31 Another technical officer with the Main Roads Department,
Mr Watson, inspected the site with Mr Cooper. He did not appear to have a clear recollection of the accident site, nor was he able to explain in a satisfactory manner what his observations had been. The most that can be gleaned from his evidence is that he thought that the camber did change throughout the bend and that it was "pretty flat" in the area near the driveway.
32 A maintenance grading driver, Mr Lloyd, was called on behalf of the
defendant. While he was a little unclear about the camber, he did not believe that there had been a reverse camber on that bend. However, his evidence appeared to be based more on photographs which had been taken some time after the accident rather than on actual recollection.
33 There was also a suggestion that weather conditions, traffic and
maintenance grading could affect the camber of the road. While it seems that those matters would have some impact on a road's camber, the weight of the evidence leads me to conclude that those changes would be relatively insignificant.
34 Mr Johnson explained the forces that operate on a car as it goes
around a bend. He said a vehicle that is cornering experiences an outward force. That force is counteracted by the force between the road and the tyres, which is called friction. So long as the frictional capacity exceeds the outward force, the car will remain on the road.
35 When a car is cornering, the frictional capacity is being used in a
lateral or sideways direction to oppose the outward force created by the curve. When driver input is added, such as acceleration, deceleration, braking, or steering, it effectively adds another force which is perpendicular to the lateral force. The accumulation of those forces may then exceed the frictional capacity leading to a loss of traction.
36 Mr Johnson explained that, when a curve is correctly cambered, it
leans in such a way that the car is tipped into the curve. For example, on a right hand bend, the right hand wheels of the vehicle should be lower than the left hand wheels. That allows part of the outward force to be counter balanced by the effect of gravity. Accordingly, less frictional capacity is required to keep the vehicle from losing traction. Conversely, if the curve has a negative camber, more frictional capacity will be required. In short, where there is no camber or negative camber, the car is more likely to lose traction. It will also be more difficult to regain control of a car that has lost traction.
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37 Mr Johnson added that "Eventually you would expect the vehicle to
leave the roadway to the left as it has done and hit a tree. That would be the expected outcome in that type of loss of traction." In addition, Mr Johnson explained that a change in camber from positive to flat or from positive to negative would cause a transient force that would make the vehicle feel like it was pulling outwards. He said that was why over-corrections occur.
38 Mr Johnson first saw the site in January 2003. He said that, at that
time, as he reached the driveway on the curve, the camber levelled out. He said as you got just past the driveway there was a little bit of negative camber. He said the camber then reverted to positive, although not at the level you would expect.
39 He compared his findings to the photographs that had been taken by
the Main Roads officers and expressed the view that the overall shape had not changed. In addition, he said that the video suggested there had been more of a negative camber at the time of the accident than when he had first seen the site. While his evidence must be treated with caution in light of the time at which he made his site inspection, there was no evidence that any work had been done to the road to make the camber worse than it was at the time of the accident. It would have been odd if that had been the case. Accordingly, Mr Johnston's evidence is of some weight in assessing the state of the road at the date of the accident.
40 However, the evidence of Senior Constable Hickey is sufficient on
its own to satisfy me that there was imperfect camber on the date of the accident. Senior Constable Hickey was the only witness to see the site of the accident on the actual day and he was, of course, independent of either side.
41 I find that at the point of the driveway, where the plaintiff lost
control, the camber was flat instead of positive. That would have increased the chances that a correction in the direction of the curve would cause the vehicle to lose control as there would be less counter opposing force (namely gravity) than would exist if there was a positive camber. Further, the short space of negative camber, once the car had lost control, would have inhibited the plaintiff's ability to regain control. Again, that is because the plaintiff would not have been assisted around the curve by gravity, but rather there would have been an additional force pulling the car off the road.
[2005] WADC 209
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42 Interestingly, when Mr Johnson re-attended the accident scene in
June 2005, he noted there had been a substantial change from his previous visit. He said the camber was now correctly constructed throughout the entire curve.
43 Mr Johnson noted that the Unsealed Roads Manual clearly states in
bold type: "For safety reasons super-elevation [camber] should be used for all road regardless of traffic volumes. The only exception to this is for large radius curves". Mr Johnson explained that this curve was not a large radius curve.
The Shire
44 The defendant called Mr Smith, who had been the CEO of the Shire
of Toodyay from 1998 until January 2003. He said that at the relevant time, the Shire had a total of 42 staff. Six to eight of those staff were in maintenance, covering parks and roads.
45 Mr Smith said the Shire had two grader operators running 12 months
of the year. The unsealed roads were divided into two sectors and the
operators would continuously cycle through their sector.46 Mr Smith estimated there was well over 1,000 km of unsealed roads
in the Shire of Toodyay "from memory". However, when it was put to him that the maintenance grader driver, Mr Lloyd, had said there was probably about 300 km of unsealed roads in the Shire of Toodyay, Mr Smith said he accepted that evidence. He said he did not have the information in front of him. He was asked whether his figure of 1,000 was a guess and he replied "absolutely, yes". Accordingly, I accept the evidence of Mr Lloyd in preference to that of Mr Smith and find that there were 300 km of gravel roads in the Shire of Toodyay.
Mr Smith said the traffic volume on Woodendale Road was about 20 vehicles per day.
48 Mr Smith gave evidence that the Shire's budget was around $4½
million annually. He said the allocation to the roads was just under $1 million. He said that figure was arrived at by "generally what would be – I guess we would set a line in the sand almost to start off a budget process with roads and determine how much total we were willing to spend in the first instance".
49 Mr Smith said that when he first arrived at Toodyay there was a "bus
tour" system of inspection of roads. However, not all roads were viewed
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and Mr Smith felt the system was not only ineffective, but also meant that some roads got prioritised for political rather than safety reasons. Accordingly, he abolished the system. After that he said:
"We took a system … which is called a multi criteria assessment. We basically tried to put a weighting on each road which by definition then, as each road required works, we'd then give it a weighting, high or low. But it was still largely based on knowledge of information. It was still largely based on whether our guys had seen anything during their travels; if the maintenance grader operators who were on continual circuits around the Shire – if they had identified anything; if we had complaints; if we knew that there was a significant number of heavy vehicles on a road that were causing damage; if there was a subdivision off a road that potentially was going to have a significant impact on motor vehicles on a road. There were numerous different variables but it was still largely driven by external parties because you simply can't be everywhere at every time."
50 Mr Smith said "if the Shire was aware of anything that was
inherently unsafe, it generally reacted to that knowledge". However, he said the Shire did not have a system of attending crash sites and observing and collating information from them.
51 Mr Smith said that the Shire had previously had engineers on its staff
but did not at the time of the accident. Instead, they had a person who apparently had extensive experience in road maintenance, road construction and road design. He said that person was aware, and had copies, of relevant Australian standards. He agreed that guide posts were not overly expensive and that the Shire kept a small supply in stock. However, when asked about the Australian standards in relation to guide posts, he said:
"Well, the Australian standards give a general guideline as to what is accepted practice. It isn't obligatory and it isn't statutory but it's a recommended practice. So if we were constructing a new road from scratch and you were trying to guidepost a corner, you would use the standards to set those guideposts, but of course if a road already had guideposts, the guideposts may have been there for 30 or 40 years in a real sense and may have been changed. It's unlikely, unless the road were physically shifted or realigned or something occurred. More
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often than not it would simply be the replacement of posts as they were knocked over by wide vehicles or whatever the case may be, and as you identify them needing replacement you would replace them as part of a normal maintenance program, but they wouldn't necessarily comply with the standards because they perhaps weren't built to standards at the time because the standards perhaps more often than not were significantly different and the standards have often surpassed the roads along the way.
And to your knowledge, did anybody ever turn their minds to whether the standards for the guideposts should be looked at in terms of existing roads, whether - - -?---No.
No?---No."
52 There was no evidence that the maintenance graders received any
special training or instruction in respect of the identification and reporting
of road hazards.53 Specifically in relation to camber, Mr Lloyd said he was not sent on
any courses or provided with any training as to the appropriate degree of camber and the directions in which it should go. He said he learnt from previous operators. Interestingly, in his closing submissions, counsel for the defendant said: "Which brings me back, I suppose, to a circular argument that would an inspection have revealed that there was an inherent danger in this corner. My suggestion is it wouldn't have. …This hazard which has been claimed by the plaintiffs on a visual inspection we would say it just – you simply would not have picked it up. It wouldn't have been something that in the normal course of events you would have picked up."
54 Even had the imperfect camber been detected, there is no guarantee it
would have been reported. In his evidence, Mr Lloyd said: "if I had found something in the opposite direction, well, I would have had to have, yeah, looked into it, maybe reported it …"
55 In relation to guide posts, Mr Smith agreed that the staff who were
operational and actually out in the field would not be aware of what the
standards required.
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Relevant principles
In Brodie v Singleton Shire Council (2001) 206 CLR 512, Gaudron, McHugh and Gummow JJ said at [150]-[151];
"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 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.
The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt, 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. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case."
Their Honours said at [165]:
"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."
| Causation |
58 "Where there are possible competing causes, it is sufficient if the
evidence would support an inference that the defendant's negligence
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"materially contributed" to the plaintiff's injury: Chance v Alcoa of
Australia Ltd [1990] Aust Torts Reports 67-719, per Malcolm CJ.59 In my view, the plaintiff primarily lost control of the vehicle due to
the inadequacy of the guide posts. A significant contributing factor was the misleading effect of the driveway marker. I accept the plaintiff's evidence that she felt she was too far over and corrected slightly in the direction of the curve. At the same time that she made that adjustment, the car lost control. Accepting as I do the evidence of Mr Johnson, the need for the plaintiff to correct the path of the vehicle would have increased the outward force opposing the frictional force of the tyres on the road. I am satisfied on the balance of probabilities that that is what caused the plaintiff's vehicle to lose control. While not the primary cause, I am satisfied that the original driveway marker materially contributed to the cause of the accident. However, as I have noted, in my view the primary cause was the inadequacy of the guide posts. I am satisfied that, had there been a guidepost on either side of the driveway, this accident would not have occurred.
60 In addition, the flattening and then negative camber of the road on
the curve would have made it more difficult for the plaintiff to regain control of the vehicle. In McIntyre v Ridley District Council (1991) 56 SASR 343, King CJ said at 121 "It was not proved that the dangerous camber contributed to the initial loss of control but, to my mind, its tendency to take the vehicle off the road rather than to keep it on the road, must have materially contributed to the failure of the vehicle to stay on the road after the initial loss of control and the vehicle leaving the road and tumbling down the embankment. However influential the other factors in the complex might have been, I feel unable to treat the unfavourable camber as having no causal connection with the final result. It seems to me that where so significant a hazard forms part of the complex of factors producing the final result, a just and reasonable application of the principle of causation requires that that factor be regarded as a contributing cause." With respect, those comments are equally applicable to the facts in this case. However, it is strictly unnecessary to make that finding, as, in my view, the inadequacy of the guide posts materially contributed to the accident. If, therefore, that inadequacy was due to the negligence of the defendant, the plaintiff has established causation.
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Negligence
61 There is no doubt that the spacing of the guide posts on the kerb
failed to comply with the Australian Standards. However, "[m]ere compliance with the standard, or even with common practice, does not solely or even primarily determine whether negligence exists or not … Evidence as to practice, or as to the existence of the standard remains relevant, and it may help in determining what proper care and skill requires to be done in a particular context. However, in the end it is for the court to adjudicate upon what is the appropriate standard of care": Lanza v Codemo [2001] NSWSC 845 at [169]. Mr Bradford, counsel for the plaintiff, did not contend to the contrary, pointing out that the negligence alleged was not that the guide posts weren't 20 metres apart, but rather that they did not show the shape of the road.
62 In my view, there is no doubt that this bend posed a risk to road
users. It posed a risk due to the inadequacy of the guideposts. That risk was increased by the misleading effect of the driveway marker. The bend also posed a risk due to the imperfect camber.
63 Those risks were reasonably foreseeable. A local authority would be
well aware that inadequate guideposts may prevent motorists being able to adequately follow the direction of a road. Similarly, local authorities would be well aware that imperfect camber may contribute to a driver losing control of a vehicle or being unable to regain control of a vehicle. The Shire of Toodyay must have known that such dangers could exist on the roads within its jurisdiction. Nor was there any suggestion to the contrary.
64 It is clear that the Shire was not responsible for the placement of the
original driveway marker. However, it did not suggest it was not aware of the fact that many farm driveways had such markers. Indeed, its case was conducted on the basis that driveway markers were very common. In light of my findings in relation to causation, it is unnecessary to determine whether a local authority ought to have reasonably foreseen that a driveway marker placed off-line from the guide posts could, in combination with inadequately spaced guide posts, mislead a motorist. I am inclined to think that it would be reasonably foreseeable that objects near to the edge of the road could aggravate the risk created by inadequate guide posts. I am not certain that, without the benefit of hindsight, it would be reasonably foreseeable that that could occur as a result of a driveway marker specifically. However, if it is reasonably foreseeable that objects near the road might aggravate the risk, the Shire would be
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obliged to take reasonable steps to ascertain the existence of those dangers. If those reasonable steps included inspections, in my view those inspections would reveal the additional risk created by driveway markers such as the one in this case. However, in light of my findings in relation to causation, it is unnecessary to conclusively determine these questions.
65 In my view, the Shire was obliged to take reasonable steps to
ascertain the existence of the dangers posed by imperfect camber and by
inadequate guide posts.66 The magnitude of the risk created by inadequate guide posts is
extremely high. A road user failing to take a bend could be killed. The magnitude of the risk in respect of imperfect camber is perhaps somewhat less. Nevertheless, it is still significant.
67 While it is impossible to determine the degree of probability that the
risk would eventuate, I am satisfied that, over a period of time, there
would be a high probability that a serious accident would occur.68 The response of a reasonable authority will take into account the fact
that road users are expected to take reasonable care for their own safety by perceiving and avoiding obvious hazards, although an allowance must be made for inadvertence: Temora Shire Council v Stein [2004] NSWCA 236, Sutherland Shire Council v Henshaw [2004] NSWCA 386.
69 The defendant says it is unreasonable to expect a shire to inspect
every corner and every road surface in its control. The shire had a system of regularly grading the road which meant each road was graded three or four times a year. If the grader drivers detected a problem, it was expected that they would report it. Similarly, if a staff member on driving to work or in the area detected a problem, it was expected that they would report it. Finally, the shire relied on the community to report any problems with the roads.
70 However, there was no evidence that any of the grader drivers or
staff members received training or instruction in what dangers to look out for, and how to detect them. It is true that some of the dangers would have been obvious regardless of training. A person driving around a bend with negative camber would be able to feel it. Similarly, inadequate guide posts would have been obvious to the ordinary motorist. However, if those matters are not specifically in mind, it is possible that they will be overlooked. Further, the chances of them being overlooked by the staff and the locals may be even greater. A person may not notice an absence
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of guide posts if they know precisely how the road bends due to
experience.71 No evidence was led by the defendant as to any competing or
conflicting responsibility or commitments. There was evidence of the defendant's budget in respect of roads and road safety. However, the evidence clearly established that the expense, difficulty and inconvenience to the authority in taking steps to alleviate the danger would be relatively minimal.
72 Mr Cox gave evidence that to check the safety of 300 km of gravel
roads would require effectively four days work. Two people in a vehicle for two days. On the first day, the passenger would look at the surface of the road. On the second day, the passenger would look at guide posts and vegetation, and feel the camber. Mr Lloyd, the maintenance grader driver, gave evidence that he received $1,250 gross per fortnight.
73 It was conceded by Mr Bradford that it would be unreasonable and
unhelpful to send such a team out with an endless list of matters for which to look. In addition, it is always easier to detect safety flaws with hindsight. However, Mr Bradford submitted that matters such as camber, guide posts, and the need for warning signs were obvious dangers that would be easy to detect, and did not require hindsight to be aware of them.
74 I accept that submission, just as I accept the submission that four
working days per year is not an unreasonable burden to impose upon a
local authority.75 There is then the issue of whether such a system would have detected
the problems in this case. In my view, the inadequacy of the guide posts
was obvious; similarly, the absence of positive camber.76 In relation to a warning sign, I am not persuaded that such a sign
should have been erected. It was common ground that the use of a sign when one is not required can detract from the efficacy of signs that are required. Accordingly, it is always a balancing exercise as to whether a sign should be placed. The evidence of the expert Mr Cox was that, in the case of this bend, it was a matter of judgment not certainty. Accordingly, I am not prepared to make a finding that the defendant ought to have exercised its judgment in such a way as to place a sign at that location.
However, I am satisfied that the defendant ought to have placed additional guide posts.
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78 The defendant's failure to eliminate the risk caused by the inadequate
guide posts showed "a want of reasonable care for the safety of the plaintiff": McHugh J in Tame v State of New South Wales (2002) 211 CLR 317.
79 In relation to correcting the camber of the road, there was evidence
that that would take one or two days to achieve. While it is a little more difficult to conclude that this would be a reasonable thing to ask of the shire, I am persuaded that it would be. However, in view of my finding that the accident was primarily caused by the inadequacy of the guide posts, it is unnecessary to determine that issue.
80 Mr Bradford also submitted that, if I was to find that the suggested
two day inspection would be an unreasonable burden to impose upon the authority, at the very least the authority could have given its workers and staff members specific instructions to look out for imperfect camber and inadequate guide posts. I agree that if the two day inspection was considered to be unreasonable, the Shire would have been obliged to, at the very least, give such instructions as part of the reasonable steps it ought to have taken. The issue that would then arise is whether those steps would have prevented the accident in this case. This would, of course, depend on whether the staff and grader operators actually followed those instructions. If it was necessary to decide, I would find that that action would have prevented the accident in this case, albeit with some hesitation. However, in light of my earlier findings, it is not necessary to reach a view in relation to that issue.
Statutory immunity
The defendant pleads that it is protected by the immunity contained in s 9.57 of the Local Government Act 1995.
Section 9.57 states:
"9.57. Local government protected from certain liability
(1) A person cannot recover damages against a local government in respect of loss or injury sustained either to that person or to another person or to property 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
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longitudinally, has been taken over or improved by the
local government.
(2) 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.
83 Statutory provisions that limit liability for government action "are
construed 'strictly', even jealously"; Puntoriero & Anor v Water Administration Ministerial Corporation (1999) 199 CLR 575, per McHugh J at [34]. (See also Kirby J at [59]-[68] and Callinan J at [113].) As was said by Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen (1994) 179 CLR 427 at 437;
"The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The Court should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights …"
84 Applying those principles to the interpretation of s 9.57, it is clear
that the section does not provide immunity from action beyond the terms
of the section.85 The plaintiff is not seeking to recover damages against the Shire
"merely because some other portion of … [Woodendale Road] … has been taken over or improved by" the Shire. On the contrary, the plaintiff's claim is a claim in negligence. Accordingly, s 9.57 has no application to this case.
I note that s 21(4) of the Local Government Highways Act 1982 (Tas)
states:
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"Except as otherwise provided in this Act, the corporation is not liable for any injury or loss arising from the condition of a highway unless that condition results from the improper carrying out of a highway works that are carried out by, or at the direction of, the corporation."
In my view, a provision such as this would be required to manifest a clear intention on behalf of the legislature to confer immunity.
87 In City of Ballarat v Perovic (2001) 4 VR 1, the Court of Appeal was considering a provision of the Local Government Act 1989 (Vic) which provided that:
"A Council with the care and management of a road —
…
(c) is not obliged to do any particular work on the road, and in particular, is not obliged to carry out any surface or drainage work on an unmade road."
The appellant argued that that provision gave it immunity from action. Each member of the Court found that that section did not provide a statutory defence for negligent non-feasance or misfeasance. While the section under consideration was significantly different from s 9.57 of our Local Government Act, two members of the Court referred to the need for an express legislative intent before such an immunity could be found. (See Ormiston JA at [10] and O'Bryan AJA at [76]).
88 In the absence of any statutory immunity, the liability of the Shire is
to be determined according to ordinary principles of negligence:
Brodie v Singleton Shire Council (supra).
Contributory negligence
The defendant pleads that the accident was caused solely by the negligent driving of the plaintiff in that she;
"(a) drove in a speed and manner in the circumstances outlined in par 5 of the Amended Statement of Claim which was dangerous [par 5 of the Amended Statement of Claim said that the plaintiff was travelling around the right hand bend when the plaintiff's vehicle slid to the left, left the surface of the road, slid down an embankment and rolled over colliding with a tree.];
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(b) failed to exercise the degree of care required of a diligent driver in the circumstances pleaded in the plaintiff's Amended Statement of Claim, particularly given that she was familiar with the road in question and there was nothing to obstruct her vision; and (c) failed to maintain any or any reasonable lookout and slow down prior to entering the bend referred to in par 5 of the Amended Statement of Claim."
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494, the Court said:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case …"
In Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563, Mason J said at 570;
"It has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to a risk of injury."
92 I find that the plaintiff's manner of driving was not in any way
dangerous. It appears she was going between 60-80 kilometres per hour. When she realised that she had mistakenly aligned herself with the driveway marker instead of a guide post, she made a slight correction. At that time, the wheels lost their traction and she took her foot off the accelerator. She did not brake. Further, as I have previously indicated, she did not have such a degree of familiarity with the road that she ought to have known she should slow down. Further, I accept the plaintiff's
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evidence that she was looking at the guide posts and at the road, and was
keeping a reasonable lookout.
Accordingly, I do not find the plaintiff to have been contributorily
negligent.
Conclusion
Accordingly, I find that the plaintiff has established liability in both
actions.
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