Bitupave Ltd t/as Boral Asphalt v Pillinger

Primary judgment

1. At [74] - [81] of his Honour's reasons, the primary judge summarised his findings on the disputed questions of fact in the proceedings. In summary, his Honour found that: 1. when the roadworks were completed, there was a feathered windrow to the east of the stretch of road, comprising roadbase and aggregate ([74]) (earlier, at [56], his Honour had found that the roadbase came from the Council and the aggregate from Boral); 2. apart from what was subsequently in the swathe, there was not an excessive amount of aggregate on the stretch of road at that time ([75]); 3. the Council did not erect a sign that said anything such as "Caution - new work" or "Caution - loose gravel", and there was no such sign facing in either direction on the day of the accident ([76]) (a finding not relevant to any issue now raised in the appeal proceedings); 4. as a result of the combined effect of being blocked by vegetation and very heavy rains, a table drain to the east of the stretch of road overflowed and a stream of water travelled across the road in a general south-westerly direction, carrying with it a mixture of dirt, vegetable matter, roadbase and aggregate ([77]); 5. a swathe made up of those four components was on the road at the time Mr Pillinger travelled over it, in both a southerly and northerly direction, on the day of the accident ([78]); 6. during the few days between the time that the swathe came into existence and the occurrence of the accident, no officer of the Council became aware of its existence ([79]); 7. when the tyres of Mr Pillinger's motorcycle came into contact with the swathe, friction was markedly reduced with the result that Mr Pillinger lost control of the motorcycle; after that the motorcycle zigzagged through the gravel on the road leaving a trail and hit the roadway more than once leaving gouge marks; and Mr Pillinger suffered impacts with the road resulting in his injuries ([80]); and 8. at the time of the collision, Mr Pillinger was travelling at or slightly below the speed limit of 80km/h ([81]).
2. As to the first of those findings, his Honour found: that the Council (which it was not disputed had laid the roadbase) left a windrow comprised of roadbase on the eastern side of the road when it completed its work ([54]); that when Boral finished its work it left a windrow there that was "feathered to some degree" comprised of roadbase and aggregate ([54]); and that it was the Council who had (after the completion of the Boral works) "feathered out" the windrow ([61]).
3. His Honour found (at [62]) that the amount of gravel on the road was not unusual or excessive and was in general accordance with the particle count carried out by Boral at the conclusion of its works.
4. His Honour found that Boral owed a duty to take reasonable care in its roadworks with respect to motorcyclists who themselves were taking reasonable care with regard to their riding ([85]); and that it was in breach of that duty of care in that a reasonable person in the position of Boral would have formed a windrow to the west of the road only, in accordance with a procedure that had been described by the Council officer (who had supervised the works), Mr Matthews ([105]).
5. His Honour found that Boral's breach was a necessary condition of the occurrence of the harm on the basis that, but for the roadbase and aggregate to the east, the swathe that resulted from the torrent of water would have been markedly different ([108]). His Honour was well satisfied that the accident was not caused by inattention on the part of Mr Pillinger or by mechanical malfunction ([109]). His Honour concluded (at [110]) that, on the balance of probabilities, the presence of the swathe on the road containing roadbase and aggregate emanating from the windrow was a necessary pre-condition of the harm suffered.
6. As to the Council, his Honour noted that it did not dispute that it had a duty to exercise reasonable care for the safety of road users who were themselves taking care for their own safety ([115]). His Honour reached the same conclusions in respect of the risk of harm and breach of duty in relation to the Council as he had in relation to Boral. (The Council does not cavil with the manner in which his Honour did so, although it does cavil with the conclusions his Honour reached as to foreseeability and breach.)
7. His Honour then addressed issues that had been raised by the Council with reference to s 42 of the Civil Liability Act 2002 (NSW) and concluded (at [118]) that a reasonable person in the position of the Council would have taken steps to ensure the windrow of roadbase was not left to the high side of the road. (His Honour noted the Council's reliance on s 45 of the Civil Liability Act but said that leaving the material was not a case of nonfeasance but a case of misfeasance [119].)
8. His Honour concluded (at [121]) that the Council was in breach of its duty of care by leaving the quantity of roadbase to the east of the road that was washed onto the road. At [122], his Honour repeated his earlier finding that the swathe contained roadbase and that it was the combined effects of the contents of the swathe that led to the loss of control by Mr Pillinger of his motorcycle. Accordingly, his Honour concluded (at [125]) that the Council was negligent.
9. His Honour was not satisfied that the Council's failure to erect a warning sign was so unreasonable that no local council could properly consider that omission to be a reasonable failure to exercise its power ([129]) and for that reason his Honour concluded that s 43A of the Civil Liability Act protected the Council from liability in relation to the road signs and that he did not need to consider reliance by the Council on the allegation that there was an obvious risk and no duty to warn (ss 5F and 5H of the Civil Liability Act). There is no challenge to those findings.
10. His Honour next addressed the allegation of contributory negligence on the part of Mr Pillinger. His Honour noted that there was no intoxication or drugs. On the balance of probabilities, his Honour had earlier found that Mr Pillinger was travelling at or slightly below the speed limit and riding generally with due attention. Nevertheless, his Honour considered that there was a degree of contributory negligence in Mr Pillinger's failure to negotiate a hazard which he had passed (travelling in the southerly direction before lunch) quite recently and of which he had explicit notice ([139]). His Honour assessed Mr Pillinger's contributory negligence at 10%.
11. As to the apportionment of responsibility between Boral and the Council, his Honour considered that Boral was somewhat more culpable than the Council for three reasons: first, the Council had merely left an amount of roadbase, whereas Boral left an amount of roadbase and aggregate; second, Boral worked on the stretch during the latter stages of the work; and, third, because his Honour inferred that a company in the specialised business of sealing roads would have more expertise than the Council ([146]). His Honour apportioned responsibility for the accident as to 60% to Boral and as to 40% to the Council ([147]).
12. His Honour then turned to the first cross-claim (by the Council against Boral). The Council's breach of contract claim was put on various bases. The only basis on which the Council succeeded was a breach of cl 10 of the contract because Boral did not effect a policy of public liability insurance covering the Council's liabilities to the plaintiff (see [179]). Therefore his Honour held that the Council was entitled to indemnity from Boral for the whole of its liability to Mr Pillinger ([179]). In light of that conclusion, his Honour found it was not necessary to determine the second and third bases of the cross-claim (Boral's alleged negligence and the Council's claim for contribution or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act, respectively) ([180]).
13. As to the second cross-claim (by Boral against the Council), his Honour noted that this related to alleged negligence on the part of the Council in relation to the state of the drain and failure to inspect the road after the heavy rainfall ([181]). His Honour said that this was not pressed ([181]). Boral does not demur from this proposition.
14. His Honour ordered judgment for Mr Pillinger against Boral and the Council jointly and severally in the sum of $1.17 million; determined that the contribution as between the Council and Boral was 40/60%; entered judgment on the first cross-claim for the Council against Boral; and dismissed the second cross-claim.

Appeal proceedings

1. In this Court: 1. Boral has filed a notice of appeal from the whole of the decision on liability, joining Mr Pillinger as first respondent and the Council as second respondent. 2. The Council has cross-appealed on three issues: its liability to Mr Pillinger; the degree of contributory negligence of Mr Pillinger; and the apportionment of liability between the Council and Boral. 3. The Council has also filed an amended notice of contention in which it seeks to have order 3 (namely, entry of judgment in its favour on the first cross-claim, against Boral) affirmed on other grounds. 4. Mr Pillinger has filed a cross-appeal against Boral and the Council limited to the finding against him of contributory negligence; and 5. Mr Pillinger, by leave granted during the course of the hearing of the appeal, has filed a notice of contention seeking to affirm his Honour's findings of negligence against Boral and the Council on other grounds (Mr Pillinger's Notice of Contention filed in Court on 8 July 2015).
2. The particular grounds of appeal/cross-appeal and contention are reproduced in the appendix to these reasons. Before turning to those grounds I will first set out the relevant evidence going to the composition of the swathe and the source of the non-organic material in it.

The Swathe

1. Not all of the lay witnesses were at the accident site on the afternoon of the accident. In particular, Mr Pillinger's wife and son (the latter having taken the photographs adduced in evidence of the portion of road where the swathe had been - Exhibits 7, 8 and 9) did not arrive at the accident site until the following morning, by which time it must be assumed that the road had been cleared of much or all of the swathe.
2. The Council emphasised that it cannot be assumed that it was the Council which cleared the road and I accept that no such assumption can be made on the evidence that was before his Honour (though, as I note below, Ms Stevenson herself recalled seeing workers clear the road). Nevertheless, the assumption that the road had been cleared (or largely cleared) of the swathe by the following morning may be made with some confidence (despite the evidence of Mrs Pillinger and Mr Michael Pillinger that appears to suggest the contrary) for at least two reasons.
3. First, (and bearing in mind the limitations on the use to be made of such photographs), the photographs taken the morning after the accident do not show a band of material of the kind described by Ms Stevenson though some brown discolouration in the area where the swathe is said to have been is evident. Second, Ms Stevenson herself identified the photograph which was Exhibit 7H as a picture of the road "with the band removed" and said that after the road was cleaned "you can just see the remnants of mud on the road". Boral's Counsel accepted in the course of oral submissions (at AT 7/7/15 15.27) that the actual swathe had "seemingly" been removed by the time the Exhibit 7 photographs were taken and the evidence to the contrary by Mrs Pillinger and her son was described by Counsel for Mr Pillinger as a conundrum that was not ever really explained.
4. As an aside, I note that there was both a police officer and a tow truck operator in attendance at the scene of the accident and that the police officer (Detective Sergeant Acton) gave evidence as to his observations of tyre marks in loose gravel and marks from which he had formed the view that Mr Pillinger's motorcycle had 'fishtailed' before the crash. It is a reasonable assumption that the police officer would not have permitted a potential hazard to vehicles to remain on the road. Nevertheless, with one exception, there was no evidence as to what steps were actually taken, and when, to clear the road.
5. The exception to which I refer above is that in a statement made by her in 2012, Ms Stevenson made reference to the Council clearing the material off the road "soon" after she reported it to the Council the day after the accident ([8]). There was in evidence (Exhibit V) a copy of the Council's record of that report, which is dated the day after Mr Pillinger's accident, consistent with Ms Stevenson's recollection. However, the Council's records go on to refer to an inspection and "no further action required", which would be consistent with the road already having been cleared by then.
6. In any event, Ms Stevenson's observation in the witness box of the photographs she was shown (to which I have already referred) supports the conclusion that the swathe had been cleared by no later than the morning after the accident. Obviously, if the swathe had been largely removed by the time Mrs Pillinger and her son arrived at the scene, this suggests that more weight should be given to the observations of the swathe by those who were present at the scene shortly after the accident (and that little weight can be given to observations of Mr Clark, the expert on whom Boral places weight, of what the photographs do or do not show as to the composition of the swathe).

Ms Stevenson

1. As already noted, Ms Stevenson was a local resident and the only witness who had observed the swathe on the road prior to the accident. Boral and the Council place weight on her evidence on the basis that: she was independent of Mr Pillinger (being neither a family member nor a fellow motorcycle rider); she was familiar with the road; she said she had previously used aggregate of the size she had seen in the table drain on her property; and she was a retired scientist. No little weight was placed on the last of those matters. Nevertheless, it must be noted that Ms Stevenson's area of scientific expertise was microbiology, not geology, and (with no disrespect at all to her) it cannot simply be assumed from the nature of her former profession that Ms Stevenson had any particular expertise in the estimation (some years after the event) of the size of aggregate or other rocks; nor that, as a retired microbiologist, she would necessarily be more precise than any other lay witness in her observations as to such matters.
2. Ms Stevenson had provided a short written statement dated 22 November 2012, which was admitted into evidence. The statement itself was prefaced by reference to the fact that the accident had happened "several years ago". In it, she stated that she had travelled along the newly sealed road several times before the accident and it seemed to her to be in excellent condition ([4]); that there was a newly constructed drain on the eastern side of the road that ran the length of the newly sealed road ([6]); and that there had been a severe summer thunderstorm with exceptionally heavy rainfall in the few days before the accident and displaced "leaf litter, twigs etc had clogged the drain at one spot" ([7]). She stated that in the day or so before the accident she had travelled over a band of material on the road and had "felt a bit of a hump" as she went over it but did not think it presented a traffic hazard for her ([8]). Ms Stevenson had not noticed any effect from gravel as she drove along the road before the storm. She described the band of material as "composed of soil, sand, leaf matter and blue metal gravel" and said that it appeared as though the material had been washed across the road from the "newly constructed" drain ([6]).
3. Ms Stevenson further said (as referred to earlier) that the day after the accident she reported it and the material on the road to the Council and that soon afterwards saw workers clearing the material off the road surface and deepening the length of the drain from where the blockage and overflow of water had occurred ([9]-[10]). She also stated that she later noticed that blue metal rock had been laid in the base and lower sides of the "newly deepened" drain ([11]). (Any material that was laid in the drain after the accident could not, for obvious reasons, have formed part of the swathe; although it is possible that the same kind of blue metal rock was in the blocked drain before the accident.) The Court was not taken to any record of works by the Council to deepen the drain after the accident.
4. Ms Stevenson was cross-examined by Counsel for each of the Council and Boral. Her evidence was that it was "[o]nly in extreme times" with very heavy rain that water would run across the road when it rained in the area; and that occasionally after very heavy rain there would be rubbish left on the road where the water had run across it, sometimes leaf material, twigs or branches, and uncommonly "earth-like material". For Mr Pillinger, it is noted that Ms Stevenson did, however, say that the area was known for its "freak events" when asked whether it was the heaviest rainfall she had seen there.
5. Asked in the witness box what she had seen on the road prior to the accident, Ms Stevenson, consistently with her 2012 statement, referred to a "band of material … composed of various entities, including; the soil, gravel, leaves, et cetera". Asked whether the material was brown, she responded that the soil was brown and the "gravel" was charcoal. Ms Stevenson later confirmed her description of the "gravel" as "charcoal" in colour but went on to say that it was the same material as "the blue metal rock" to which she had referred in relation to the deepening of the table drain after the accident: "It is the same material, just depends on the grade when they crack it". She could not say whether the band of material was "more soil than anything else".
6. Ms Stevenson also said that where the material had crossed the road the drain had been blocked prior to the accident. She identified the point of the blockage as being slightly north (uphill) of a guidepost visible on the eastern side of the road in Exhibit 7H.
7. Ms Stevenson described the material that had clogged the drain before the accident as being comprised of leaf, gravel, branches, twigs and soil. She had attempted to clear the blockage with a shovel before the accident. She described the blockage as being "very neat and tight in the small area that was removed" by the Council workers after the accident when the drain was deepened.
8. When taken back to her description of the material in the drain, in her cross-examination by the Council, Ms Stevenson said that whatever was in the drain (i.e., the blocked drain) was "similar" to the material that she had observed running across the road.
9. There then followed an attempt to explore with Ms Stevenson in cross-examination the difference in the types of non-organic material present at the scene of the accident, by reference to the collection of photographs that formed Exhibit 7.
10. Ms Stevenson was shown the Exhibit 7A, photograph which is a photograph taken looking to the north of the road (hence the guideposts to which reference was there made were on the left of the road). She distinguished between the gravel that she had referred to as charcoal and the lighter coloured material running either side of the guideposts in referring to the latter as looking like "part of the road construction". Asked whether the blue metal rock to which she had referred in her evidence was the material shown to the "right hand side" of the photograph, Ms Stevenson appeared to distinguish between the blue metal rock put along the side of the road to help stabilise it (which it is agreed was not material involved in the road reconstruction works) and "gravel". She explained that when she had referred to seeing gravel over the roadway she was referring to "the blue metal" but not the rock that was stabilising a bank on the far side that dropped steeply into a creek. At this point his Honour noted that Ms Stevenson was pointing to a collection of larger stones in the photograph. (Ms Stevenson shortly after commented that she was not sure of the exact location where the area in the photograph was.)
11. Pausing here, by this point, what has emerged from the cross-examination is that Ms Stevenson described the "gravel" across the roadway in the swathe both as charcoal in colour and (being the same material but cut at a different grade) as blue metal rock, and that Ms Stevenson thought it was similar to the material she had seen in the table drain where it was deepened (which was after the accident). She distinguished it both from the lighter coloured material (that she thought was part of the road construction) and from the larger blue metal rocks used to stabilise the banks on the side of the road.
12. Pressed on what she had seen in the material spread across the road from the drain (i.e., the swathe), Ms Stevenson then said that it "appeared to be sandy soil with blue metal gravel in it and that gravel resembled the initial lining of the drain just after construction" (my emphasis). Ms Stevenson appears there to have been referring to the construction of the drain at a time prior to the accident, not its subsequent deepening after the accident. That seems to follow from Ms Stevenson's description of the drain before the rain event as "It was a newly formed drain, lined with gravel, blue metal gravel".
13. Ms Stevenson was then asked whether the blue metal gravel that the (newly formed) drain was lined with was the darker material around the guideposts to the right or the lighter material running either side of the guideposts on the right hand side of Exhibit 7A (i.e., the guideposts on the left hand side of the road looking north). Somewhat confusingly, Ms Stevenson responded as follows: A. This is not gravel, it's bitumen. To the right this is - resembles what is underneath the road, the stabilising layer under the bitumen. It is not the gravel. Q. The stabilising material that's what you saw in the drain? A. No. Q. Was it the stabilising material, which you saw running across the road with the soil and other material? A. No, I can't say that. It was blue metal gravel each piece about (witness indicates size with hand). We have used the same material on our property. It was a smaller size of blue metal rock, cut to be on - almost a gravel.
14. The confusion in part arises because Ms Stevenson appears here to be distinguishing between gravel and bitumen and it is not clear precisely to what part of the photograph she was there referring.
15. Asked, for the purposes of the transcript, the size of the blue metal gravel to which she had referred in the above answer, Ms Stevenson said "[i]n a very rough way" that the rock entities (i.e., the blue metal rock cut to be almost a gravel that she had seen in the swathe) were "maybe an inch in size, roughly". Asked whether it was a larger size than the pieces of blue metal shown in the darker area on the far right-hand side of the photograph, there was the following exchange: A. The actual bitumen? Q. Yes A. Yes, there the blue metal gravel was a size larger than the material in the bitumen. Q. Would you say they were roughly twice as large? A. Shouldn't you be asking an engineer?
16. Asked by his Honour to answer the question as best she could, Ms Stevenson then said "Okay. At least twice". It appears that Counsel between them then agreed that what Ms Stevenson had there been describing as bitumen was a dark area furthest to the right of the guide posts shown in Exhibit 7A, described by Counsel for Mr Pillinger as "road surface".
17. To complete the picture, Ms Stevenson described the material put into the drain after the accident as larger than the material that she had seen in the drain before the accident. Then, when Ms Stevenson was asked whether the road surface was made up entirely of smaller sized blue metal rather than the larger size, she described the material used in the bitumen as "a standard used in bitumen, which was fairly small".
18. From the above, it can be said that Ms Stevenson's evidence (though conflicting in the description of the colour of the non-organic material in the swathe - charcoal v blue metal) was that the material she had seen in the drain (although there was some confusion as to whether this was before and/or after the accident, since it was linked by her both to the "newly constructed" and then "newly deepened" drain), and which was similar to the material she had seen in the swathe, was larger than the material she had seen in the bitumen and smaller than the rocks used to stabilise the banks on the side of the road and that which was used to line the drain when it was deepened after the accident. However, at least on paper (and his Honour had the advantage, which this Court obviously does not, of being able to assess how confident or otherwise Ms Stevenson appeared to be when estimating the size of the material in the swathe), it cannot be concluded that Ms Stevenson (retired microbiologist though she was) was giving a precise estimate of the size of what she had seen in the swathe. Indeed, she made it very clear (see [58] above) that she was only giving a rough estimate (notwithstanding, as emphasised by the Council and Boral in these proceedings, that she had used the same or similar material on her own property).
19. I have set out Ms Stevenson's evidence in this respect in some detail because it is contended by the Council and Boral that his Honour erred in not accepting that evidence. Indeed Boral maintains that, if Ms Stevenson's evidence as to the non-organic material in the swathe had been accepted it should have exculpated Boral entirely from liability to Mr Pillinger because the swathe contained no aggregate of the type used by Boral in its road re-sealing works.
20. The other evidence as to the colour of the non-organic material in the swathe can be summarised more briefly.

Other motorcyclists

1. Evidence was given by two members of the group of motorcyclists who had travelled along the road that day, Mr Humberdross and Ms Taylor (the latter being a pillion passenger on her partner's motorcycle).
2. Mr Humberdross described the whole road as "covered in loose bitumen", by which he referred to "the bitumen that they lay" but said that in that one particular area (presumably referring to the area around the accident site) there was "a build up of a larger amount of loose bitumen and gravel" that had accumulated in that one particular spot. He gave evidence in chief that he had seen marks in the gravel where something had moved the gravel in the centre "in a sideways motion". He referred again to loose bitumen, when agreeing that the new work was unmistakeable because he could hear the clatter of the pebbles.
3. It was apparent in the course of his cross-examination that Mr Humberdross made a distinction between gravel and bitumen, namely that "[b]itumen is the road and gravel is anything that has been washed onto the road as well". He described the colour of the gravel as "[m]aybe greyish, I think. Greyish brown" and the colour of the area surrounding the mark (i.e., the mark that he had observed in the middle of the built up gravel and bitumen) as "[b]lack, grey, bit of brown".
4. In her evidence in chief, Ms Taylor described the road surface at the accident site as like "walking on marbles". She said that she could feel the gravel or loose bits moving under her feet. She had described in her statement a pile towards the edge of the road that she said in her evidence in chief was a pile of gravel. She said that this was a "different colour to the bitumen" and "a different colour of gravel", comparing it to the other gravel on the road where Mr Pillinger was lying. She agreed with the proposition put to her in cross-examination that the different coloured gravel was brown in colour but was unable to say if it was the same colour as the embankment on the side of the road and was unable to say whether the photograph she was there shown (Exhibit 9) depicted the place where they were on the road.
5. Unsurprisingly, it was not suggested that much assistance could be gained from the descriptions given by these witnesses as to the composition of the swathe.

Mr Pillinger's family members

1. Mrs Pillinger, who was present when the photographs were taken by her son at the accident site the following morning, agreed in cross-examination that there was material on the road that was the same general colour as the embankment beyond the road on the high side. She described that material as dirt or soil and agreed that she had observed it to be in patches along the road. She was unable to say how many patches of dirt or soil were there and or dirt in patches along the road. Asked how many patches of blue metal there were, she responded "Well, the road was all blue metal".
2. Mr Michael Pillinger, who had referred in his statement to a fairly thick band of gravel on the road, accepted that in Exhibit 7A two different colours of gravel were visible on the eastern or right hand side of the guidepost in that photograph: one being of the road surface and the lighter colour being what was described as the shoulder of the road. He said of the band of gravel he had observed that: It was multi-coloured type thing, because it was like a washed type colour, so definitely it did have the black as a base and there was like a more of a blue than - it's very hard to say with a blown up photo, but that looks more as a grey type colour to the left there.
3. He appeared to refer to the loose gravel he had walked on as being "the darker colour gravel".
4. Again, it is not surprising that little could be made of the evidence given by the family members as to the appearance of the gravel that they had described at about the accident scene, even apart from the probability that the swathe had been cleared by then.

Detective Sergeant Acton

1. Detective Sergeant Acton was the police officer who attended the scene of the accident and coordinated a rescue helicopter to make a landing. He gave evidence that he had retraced the path of the motorcycle from where it had ended up and that he got to a place where he could clearly see the marks of a wheel or tyre imprint in some "blue gravel" that was about an inch thick. He observed a zigzagging pattern in the blue metal that he considered had been made by a tyre similar to a motorcycle tyre and that it had moved the gravel in a channel type of way, dispersing the blue metal so a track could be clearly seen in the blue metal.

Those involved in roadworks

1. Evidence was given by Mr Matthews, an employee of the Council who had a supervisory role in relation to the works in question. He explained that the Council had supplied (to Boral) 14mm aggregate with a one coat seal, the purpose of the pre-coat being to take dust off the stone so that it would stick in the bitumen when applied to the road. He said that the pre-coat gave the rock a black colour before it was applied to the bitumen. When asked whether it was black with a "bluey" tinge, Mr Matthews' response was: "No, not really, it's actually bitumen that is in the pre-coat".
2. Mr Matthews confirmed that the material used in the construction of the road was different from that which was used in the bitumen resealing. The road construction material was described by him as "a crashed rock" of which he said there could be various types (such as sandstone base or basalt "and other materials such as sandstone and whatnot"). Mr Matthews agreed that to the naked eye the road construction material was lighter in colour than the aggregate used in the bitumen re-sealing.
3. Shown the photograph which is Exhibit 7A, which again I note is taken looking towards the north (i.e. in the direction in which Mr Pillinger was riding) Mr Matthews identified the lighter material (described as being between "a large rock on the left" and "the dark material on the right") as the sort of material the Council used in road reconstruction and the darker material (on the right) as the aggregate mixed with bitumen. The midpoint in that frame of reference seemed to be around a guidepost on the shoulder of the road. Mr Matthews said that there did not appear to be any (or there was very little) loose metal in any of the photographs in Exhibit 7.

Primary judge's conclusions as to the swathe

1. His Honour referred (from [26] to [40]) to the observations of the witnesses who attended the accident site that day or the following day and noted (at [41]) the caution applicable to reliance by a judge on his or her own interpretation of photographic evidence (there referring to Short v Barrett). His Honour observed that the photographs showed a brown discolouration crossing the road at a diagonal angle ([41]). This, they clearly do.
2. What his Honour then said (at [42]) was to the effect that Ms Stevenson's evidence must be taken into account along with the evidence of all the other witnesses (which would presumably include the evidence of those involved in the works and who described what had been done). In that context, his Honour said that he did not consider that Ms Stevenson's evidence somehow "trumps" the other witnesses' evidence (a card-playing analogy with which Boral and the Council here take issue).
3. His Honour said that, having regard to the fact that Ms Stevenson's statement was made in November 2012, he did not consider that her description of the size of the items she saw on the road should be regarded as conclusive. There, I understand his Honour to be doing no more than generally acknowledging the potential effect on the accuracy of memory of a lapse in time between observation of the event and the giving of evidence as to that event (hardly a novel proposition - see Watson v Foxman (1995) 49 NSWLR 315). It is to be noted that the first reference to the size of the material in the swathe came in her cross-examination and there Ms Stevenson herself made clear that she was giving no more than a rough estimate.
4. At [43], his Honour found that the evidence established that there was a substantial amount of loose gravel on the road. (Later, at [62], his Honour attributed the amount of loose gravel on the road to the dislodgment of the aggregate in the bitumen by cars driving over the newly surfaced road. His Honour found that the amount of loose gravel on the road was not unusual or excessive and that it was in general accordance with a particle count that had been conducted by Mr McPherson.) His Honour went on, at [43], to make the finding recorded earlier as to the composition of the "brownish" swathe. His Honour made it clear that he based the finding that roadbase was part of the swathe on the evidence of Mr McPherson and Mr McDonnell, the Boral witnesses (to which I will refer shortly).
5. His Honour was not satisfied that the gravel on the road (other than what was in the swathe) had been washed from the outer eastern side of the road ([62]).
6. His Honour concluded that the drain had overflowed at the point described by Ms Stevenson, as a result of the combined effect of the volume of rainwater and the blockage of the drain by organic material at that point, and that the torrent of water carried with it brown dirt, brown roadbase and blue-grey aggregate. His Honour considered that this was the explanation for the appearance of the swathe described by the witnesses and discernible in the photographs ([63]).
7. Relevantly, his Honour did not accept that the roadbase (that had been left by the Council) stayed on the side of the road whilst all other materials moved to the southwest with the torrent of water ([64]). This (coupled with evidence by Messrs McDonnell and McPherson) was the basis for his finding as to the roadbase being included in the swathe material.
8. His Honour explained the basis for his finding (at [65]) that none of the materials in the swathe had come from within the drain on the basis that it would take an enormous amount of water pressure to cause rocks or stones to rise up and out of a drain ([65]). (Insofar as the complaint was made in oral submissions that no-one with any expertise in hydrology was engaged to determine what forces would be required within the drain in order to push water out of and then over the drain, and what forces would be required to pick up and collect pieces of material such as stone that seems to misstate his Honour's findings.) Hence, his Honour's conclusion that all of the material in the swathe had been to the east of the road and the west of the drain (at [65]).

Evidence as to the re-surfacing of the road by the Council and the spray-sealing of bitumen by Boral

1. I have earlier described in general terms the process which was carried out in the overall roadworks. However, it is necessary to set out in more detail some of the pertinent evidence given by Mr Matthews, and by Messrs McPherson and McDonnell, relevant to the question whether (and, if so, where) a windrow was left at the conclusion of their respective roadworks.

Mr Matthews

1. Mr Matthews, as noted above, was the employee of the Council who had performed a supervisory role in relation to the works. He had been an employee of the Council for 36 years and retired in 2010. It should be noted that his evidence was that he did not supervise the Council's road reconstruction works on this particular job; rather, his role was to supervise the laying of the bitumen by Boral and the aggregate on top of it. He did not recall having driven through the job on the way to other jobs but he accepted he might have done.
2. In his written statement, Mr Matthews explained the process of road stabilisation (which the Council carried out before Boral undertook its resealing works) and said (at [8]) that: The rolling process described above can create a light windrow. That windrow is then levelled out to the shoulder of the road where it is rolled and compacted. By the end of stabilising and grading, there are no windrows left.
3. Mr Matthews then described his observations of Boral's resealing works and said (at [13]) that he had observed Boral sweeping excess material off the road surface on numerous occasions (i.e., on a number of jobs not just this one) and that: In instances where a road has an embankment on one side, I never observed Boral sweeping the aggregate to the high side of the road unless there was a kerb and gutter.
4. In relation to this particular road, he said that he did not ever recall observing Boral sweep aggregate towards the high side ([14]). He stated (at [15]) that: When I observed Boral sweeping a road after aggregate was sprayed, I observed they did so until a windrow formed. The windrow was then either picked up by hand or removed using shovels or brooms. It was not left in a windrow. It was feathered out past the shoulder, at least a couple of metres past the edge of the seal and on every occasion when I have seen it done the material will be swept to the downhill side of the road. (my emphasis)
5. Cross-examined by Boral's Counsel, Mr Matthews agreed that he knew that, on rural roads such as this, what Boral did was to sweep such aggregate as was excess to requirements, after being laid with bitumen, from the high side down to the low side, adding, however, that this was "[d]epending on the road and what was on the other side". On this particular job, he said that the aggregate "would mainly be swept to the lower side because of the gutter that was there".
6. Mr Matthews agreed that with a road construction such as the one in question what you do is to "try to pinch a bit more road by constructing it out further and having it sealed out further" so as to reduce the level of destruction to the edge of roads caused through weather events and on occasion, especially on stabilised roads, he would ask Boral to spray out further.
7. He also agreed that, after the bitumen and aggregate was laid, part of the ordinary process of this type of re-seal was that moving traffic would be used "continually [to] impress the aggregate into the bitumen" and that a necessary consequence of that type of work was that a "small amount" of the aggregate would become dislodged by vehicle movements and pushed gradually to the other side where it could form a windrow.
8. Mr Matthews was shown Exhibit 7 and said that none of those photographs showed the presence of windrows at the time that they were taken and that they appeared to show what would be expected on a rural road such as this approximately six weeks after the bitumen re-seal had been done. As noted earlier, he said that there did not appear to be any, or that there was very little, loose metal in any of those photographs. That evidence provides very little as a comparator by which to assess the state of the road before or after the accident.
9. Mr Matthews accepted that it was the practice of the Council when it did the work "to broom [sic] any excess aggregate to the sides of the road beyond the road shoulder" so that, on rural roads, it was feathered out. He described the expression "feathered out" as meaning: A. Well levelled out and not left in a wind row. It was spread out lightly over an area. Possibly the width of - where possible the width of the broom, which is about 2 metres wide.
10. In later cross-examination by Mr Pillinger's Counsel, Mr Matthews agreed that the feathering process meant pushing a pile (whether aggregate or roadbase or a combination of it) further out to the side in a flattening way and that if the feathering was at about the point where the survey pegs were the material would end up getting spread out further beyond the survey pegs.
11. Mr Matthews confirmed that feathering out past the shoulder was a different thing to picking up the windrow by shovel or brooms. Mr Matthews agreed that when the Council did any reconstruction work before a re-seal was done it used graders to push and flatten out the roadbase before it was wet and rolled down and that it was the practice in such a case for the blade of the grader effectively to leave a windrow at about the point where the survey pegs (indicating the boundary of the work) were.
12. He agreed that if the Council did the laying of the aggregate (which I note was not the case here), then after the Council had "rotary broomed" the area such material was feathered out to the edge of that windrow and he volunteered at that point that "If there was any real excess [i.e., a pile of aggregate that had been laid and was excess to requirements] it was otherwise picked up by the loader again, backhoe".
13. Mr Matthews also agreed with the proposition put by Boral's Counsel that, in the ordinary course of events, when the work was being done whether by the Council (as it did before Boral did the full service) or after when Boral was doing the full service, there would be "small amounts of single aggregate stones that were left in this feathered-out way beyond the shoulder and towards the survey pegs" and that this was the way that work was customarily done.
14. Asked whether, to the extent that there were any windrows left, a grader would be brought along to knock over any remaining windrow that was left before the guideposts went in, Mr Matthews said "[i]f there was a grader available, yes" and, if not, "[i]t would only be a little bit around the peg and when that was pulled out, it was levelled out", agreeing that by "a little bit around the peg" he meant no more than 5 or 10 cm (and 5 or 10 cm effectively roadbase).
15. In cross-examination by Mr Pillinger's Counsel, Mr Matthews explained the process by which a grader would operate and said that he had never seen a grader operator grade the Council roads in such a way as to end up with windrows on both sides.
16. Mr Matthews said that survey pegs were usually put 300 to 500mm outside the stabilised area so that the grader had got an area to work up to; i.e., that the road would finish at about 300-500mm in from the survey pegs and that from that point on there would be the shoulder or verge of the road.
17. Mr Matthews was taken to the photograph that was Exhibit 7B and there identified roadbase that had not been removed from the site but said that it was not a windrow. There was the following exchange: Q. So, it's certainly wrong to say, isn't it, that any excess roadbase such as we see in this photo is always removed from the site at the end of the job? A. No. I've said that any excess and when I mean excess you're always going to have a small wind row (my emphasis) Q. Yes? A. That the grader has still got to play with. Q. Yes. A. I said any excess material, meaning if it was still 2-foot high or 600 or 300 high that is when they'd pick it up but a grader has still got to have a small amount of material to feather out when he's finished the job.
18. Mr Matthews clarified that evidence by explaining that the material to which he had been taken in Exhibit 7B got there by means of a grader and that it could be the remains of a windrow that had been brushed off or feathered off over the rock.
19. Mr Matthews agreed that one did not grade into an embankment or a drain on the high side of the road because that would fill up the table drain and said that: A. The reason it's not done is you've - when you're first constructing something like this you've done a table drain to run water, and if you push it over there, you're lessoning [sic] the capacity of that to run water if you put material into it.
20. Mr Matthews accepted that on each pass with a rotary broom a windrow would be created and that on each pass that windrow would be pushed further and further to the side of the road. He said that he had seen Boral create a windrow on both sides of the road (when using a rotary broom and doing the bitumen seal). In relation to this particular job, his advice would have been (though it is not suggested that he gave any such advice) that a windrow should not be created on the side where the embankment was (for the reason in effect that if the material was pushed into the table drain it would limit the capacity of the table drain to run water). In the course of his evidence he described how the process of grading takes place which I will not recount. It was not, however, suggested by him that it was physically impossible to grade a road by only sweeping to one side.
21. Mr Matthews was later taken through the road reconstruction process again and in summary: he could not agree that when Boral first came to the job it would ordinarily find a windrow of roadbase material left by the Council but accepted that it was possible that that could happen; he said he had not really experienced it himself; he said that normally the Council would have removed any windrow roadbase material before Boral got to the job; he disagreed that the windrow would be on both sides of the road; he accepted that after Boral had used the rotary broom the first time loose material would be pushed to both edges of the road; he said that the "brooming [sic] of the road in preparation for the re-seal - or the seal would create a windrow"; he said that he would not advise Boral to "broom" the road into the gutter on the embankment side but that Boral would create a windrow all to one side, then reseal the road, sweep it again and feather that windrow out. He accepted that at least one windrow would be created when Boral used the rotary broom before the road was sprayed and that when it used the rotary broom the second time, after the aggregate was laid, this would result in a windrow of aggregate and that in this job it should have been on the non-embankment side.
22. Finally, Mr Matthews agreed that: if the material was feathered out past the shoulder on the embankment side of this road it would be feathered out into the table drain; and that the Council's practice was not to sweep the road with a rotary broom after grading the roadbase, but that if it had done so that would itself create a windrow.

Mr McDonnell

1. Mr McDonnell was at the relevant time the contracting supervisor for Boral. He was involved in the tendering process for contracts such as this one and knew Mr Matthews from discussions with him in the latter's role as site supervisor from the Council. Mr McDonnell referred in his statement to his experience of the Council's methods when reconstructing a road, including that Mr Matthews would invariably require Boral to spray bitumen by at least 30cm beyond the stabilised surface of any newly constructed road ([13]).
2. Mr McDonnell said that in the course of constructing a road the Council would use a grader "which itself creates windrows on either side of the road"; that those windrows were essentially made up of roadbase; and that depending on the size of the roadbase the material could vary from fine to coarsely crushed rock ([14]). He described it as a stabilised material and said the colours may vary from white or various shades of grey to brown and dark brown in colour ([14]).
3. Mr McDonnell's evidence in cross-examination was that for this particular job just one size of aggregate was used. He accepted that: a grader is the kind of machine that has a blade underneath it which picks up the material as the machine moves along and tends to move any excess material that it catches to one side, resulting in a windrow; invariably the Council would use a grader in preparing the roadbase and that it would create a windrow on both sides of the road (those windrows essentially being made up of roadbase); and at the start of Boral's role the windrows created by the Council would ordinarily still be there and on both sides of the road. He agreed that Boral would then apply a rotary broom to the roadbase which in itself might add to the existing windrows, would then apply a seal, lay out aggregate and roll that into the sprayed bitumen, and would then apply a rotary broom so that the aggregate would be worked out to the side of the road and added to the existing windrow. Mr McDonnell agreed, without any qualification, that at the end of that process there would be a windrow comprising both roadbase and aggregate on both sides of the road.
4. Mr McDonnell said that Boral would generally try to push the windrows past the survey pegs as far as the broom would allow that; and agreed with the proposition that after the Council removes the survey pegs, it was the Council's job (not Boral's) either to remove the windrow or feather it out to the sides because Boral could not do that until the survey pegs were removed.
5. Mr McDonnell agreed that there was no rule to his knowledge that a windrow was not to be created on a side of the road where there is an embankment or because it is the high side as opposed to the low side of the road.
6. He also agreed that it would be bad practice to sweep and leave loose aggregate in a table drain that was likely to carry rain water; said that the material would certainly wash down the drain; and agreed that if the drain could not cope with the quantity of rain water it would expose the aggregate to being washed out onto the road.
7. In cross-examination by the Council, Mr McDonnell agreed that he had not actually made any specific observations on site as to how the work was being done. However, he did not agree that it was Boral's practice to sweep aggregate, after sealing, to the downhill side of the road. Rather, he said "we would sweep both sides of the road". He agreed that Boral would avoid sweeping aggregate into a table drain and that, to avoid so doing, the aggregate would be left in a windrow short of the table drain until the Council finished (there referring to the Council putting in guide posts). He accepted that that could lead to a situation where aggregate was left on the shoulder "if there is a shoulder" and agreed that he understood that it was Boral's obligation to render the shoulder free of aggregate. (I interpose to note that the reference to the "shoulder" of the road in this context appears to be to an unsealed area between the finished sealed surface of the road and the table drain because otherwise the qualification "if there is a shoulder" is hard to understand.)

Mr McPherson

1. Another Boral employee who gave evidence as to the works was Mr McPherson. He was the supervisor in charge of the crew for the works in question. He explained that when he first commenced employment with Boral most of its contracts were for spray services only but that in about 2003 Boral became an all services contractor in respect of resealing and would spray the bitumen, apply the aggregate, roll the aggregate and "broom off" the excess aggregate ([7]-[8]). He had worked on both rural and city roads in his employment with Boral and had done countless jobs over his then 16 years with the company ([9]).
2. In his statement, Mr McPherson explained the role that Boral performed on the works in question. It is not necessary here to repeat that in view of the description already set out above. As noted earlier, his recollection was that he did not have to sweep off more than one cubic metre of excess aggregate for the entire job ([15]). Mr McPherson considered that there was an "average amount" of loose aggregate given the length of road that he had been working on. (It is unclear to what the comparison of "average" here relates.)
3. Mr McPherson's role was described by him in his statement at [16] as follows: It was my role to rotary broom [sic] any excess aggregate to the side of the road. Basically, this only slightly added to the windrow created by earlier grading and sweeping that was just in front of the survey pegs laid by [the Council]. The windrow was a combination of natural earth from the area, the roadbase laid by [the Council] and aggregate.
4. In oral evidence Mr McPherson accepted that there was no doubt that on this job he had used a rotary broom on the roadbase before it had been sealed, commencing from the middle of the road working out and that in so doing it would, depending on how much material was there, invariably produce a windrow of loose roadbase material. He agreed that it was his experience that there were invariably windrows left by the Council (after it had laid and prepared the road) and that when Boral did its first sweep of the roadbase material it would invariably, depending on how much loose material was there, be adding to the existing windrows. He also accepted that it was invariably his experience that the windrows were already on both sides of the road so that by the end of the first sweep of the roadbase surface before the spray Boral had added to the windrows on both sides of the road. He confirmed that he worked the aggregate out to both sides and that in so doing he was adding by way of aggregate to the existing windrows.
5. Mr McPherson accepted that the state of the road when he left was that it was a brand new bitumen surface with aggregate embedded in it and that the seal went to a distance 300-500mm short of the survey pegs on both sides of the road, with a shoulder that was not sealed. That seems to accord with Mr Matthews' understanding of what is meant by the shoulder of the road (see [119] above). He again confirmed that when he left the job there was a windrow on both sides of the road comprising a combination of aggregate and roadbase and that it was his understanding that it was for Council to deal with the windrow after the removal of the survey pegs. He accepted that until the survey pegs were removed it would be difficult to spread a windrow further out from the centre of the road and said this was because a rotary broom could "only move so much material". He agreed that if material such as aggregate and roadbase were to get into a table drain it could be very difficult to get out.
6. Mr McPherson said that he never swept into a table drain and always left the material (aggregate and/or roadbase) on the shoulder; and that he only swept to the windrow, 300mm out from the peg line. He denied that Boral sometimes dealt with a council windrow by moving it with a shovel or broom; and said that 99% of the time you could get to a windrow with a rotary broom "which is still only pushed off to the peg line anyhow" and could sweep it onto the shoulder with the rotary broom.
7. Mr McPherson agreed that feathering the windrow with a graded blade had the effect of pushing the material further out and flattening it and he accepted that the windrow would inevitably disappear off the shoulder; so that if the windrow was being feathered near the embankment the material would be pushed further towards the table drain. Asked whether he specifically recalled whether or not he had created a windrow along near the dirt embankment beyond the survey pegs, he responded "No. I could only sweep to the survey peg". He did not consider it was a possibility that other Boral employees had used shovels or brooms to sweep the windrow further out towards the table drain as he considered that there was no need to do so.
8. There was the following exchange: Q. Is it possible that there was only a single windrow of roadbase material, and that that was on the western side of the road? A. No. Q. You absolutely certain about that? A. Because I can actually recall there was a windrow yeah on the eastern side, yeah, which was on the table drain side. Q. And that was a windrow about the point of the survey pegs was it? A. Peg line, yes.
9. In his statement, Mr McPherson explained that after he swept the road surface he took a particle count, one at each end of the work in random locations which involved manually sweeping inside a metre square area to pick up any loose aggregate within the square metre and that if there was less than 20 pieces the job was a pass ([18]) (and this one had passed). In cross-examination by the Council he had no specific recollection of doing the particle counts but he agreed that his practice was to make an inspection of the site within about a week of completion of the work and if he had thought there was an excessive amount of gravel on the surface of the road he would have arranged for it to be swept again. (He did not make any such arrangement in the present case.)
10. Pausing there, the evidence about the taking of particle counts and the lack of an excessive amount of loose aggregate related to what was on the surface of the re-sealed road and no doubt properly formed the basis for his Honour's conclusion that there was not an excessive amount of loose aggregate on the road itself. However, it says nothing about the amount of loose aggregate that was pushed to the sides (or shoulders) of the road when Boral used the rotary broom both before and after the laying of the aggregate (or the amount of roadbase pushed to the sides or shoulders of the road during the Council works in the Council's own preparation for the road re-sealing).

Expert evidence

1. Finally, before turning to the particular grounds of appeal, cross-appeal and contention, I note that there was expert evidence (apart from that going to the injuries sustained by Mr Pillinger and the speed at which he was travelling) adduced by the parties going to matters relating to the construction of the road and, in particular, the impact of loose gravel on the co-efficient friction of the road surface.
2. Mr Pillinger adduced expert evidence from a motorcycle safety expert, Mr Wayne Smith, whose work included investigation into motorcycle crashes as well as expert evidence from Dr George Rechnitzer, a forensic engineer with experience in accident investigation.
3. Dr Rechnitzer, in his report dated 1 July 2009 concluded, among other things, that "… heavy rainfall would have an effect of washing loose gravel onto the roadway surface, including to the location where it is inferred the plaintiff lost control" and that it was: … likely that the reason the plaintiff lost control of this motorcycle and subsequently fell off is due to the presence of loose gravel on the roadway surface, which provided much reduce[d] surface friction, insufficient to maintain the stability of the motorcycle as it was travelling through the curve. The absence of line markings to guide his perception of the curve boundaries, may have also adversely affected the rider's selected travel path.
4. The Council adduced expert evidence from Mr Mark George, a civilian forensic accident investigator, and Mr Jackson Clark, a construction industry consultant.
5. The Accident Investigation Services report of Mr George contained the statement (at [82]) that: Reason for Gravel on Road. The location of the relevant section of loose gravel where the Plaintiff reportedly lost control, was directly adjacent the ends of a localised quantity of apparent terracotta coloured soil distributed diagonally across the roadway in the vicinity of the curve's apex. All remaining sections of visible seal in the Plaintiff's photographs appeared to be free of any significant loose material, which was further supported by the existence of white paint dots installed in preparation for linemarking, which reasonably cannot be completed until the carriageway has been swept clean of loose gravel. The existence of the relevant area of loose gravel is therefore considered to be more likely associated with having been washed onto and across the road from the record level heavy rains in the 3 days leading up to the Plaintiff's crash. (my emphasis)
6. Mr Clark, in commenting on Dr Rechnitzer's conclusion that the material used to surface the road "appeared to be adequate except for the excess gravel that was not removed from the sides of the roadway and also was able to be washed onto the road surface", simply said: From my inspection I consider the materials used for the road surfacing were of good quality and were satisfactory for the work ([119]).
7. With respect, that does not address the question as to the source of the non-organic material on the road. He further said at [124]: I consider that heavy rainfall could have washed both loose aggregate on the surface of the trafficked road and the shoulders down and across the road so as to deposit it on the western side of the road.
8. Mr Clark did not address any particular response to Dr Rechnitzer's conclusion on the probable cause of the accident (as extracted at [132] above).
9. Boral adduced expert evidence from Mr Grant Johnston, a consulting engineer. He concluded that, amongst other things, an amount of loose material was present and there was: … likely to be some combination of aggregate chippings that had been swept onto the roadside and other materials however the presence of a soil base material was most likely the cause of the reduction in friction coefficient which appears likely to have led to the loss of control
10. A joint expert report prepared by each of the above experts other than Mr Smith, following an expert conclave held on 12 March 2012, was in evidence. The experts also gave evidence concurrently during the hearing although, as Counsel accepted, due to time constraints that process was not completed.
11. His Honour said (at [24]) that because, by the time of written submissions and addresses, the expert evidence received little emphasis except with regard to the speed at which Mr Pillinger was travelling, he would not engage in a detailed discussion of the evidence of the experts. Complaint is made that his Honour did not properly engage in an analysis of that evidence. I consider that in due course. Nevertheless, it is apparent from the above that, with the exception of Mr Johnston who seems to have attributed the loss of friction to the presence of a soil base material, the experts were broadly in agreement that loose aggregate on the shoulders of the road was likely to have been washed across the road and that the presence of loose gravel would have reduced the co-efficient friction of the surface of the road.

Summary of principal complaints as to his Honour's liability findings

1. In summary, Boral's primary complaints (largely echoed by the Council), as articulated in its written submissions, are that Mr Pillinger failed to satisfy the test in s 5B of the Civil Liability Act; and that the primary judge misdirected himself as to the applicable test and impermissibly used hindsight reasoning. Boral contends that Mr Pillinger failed to establish that the putative precautions his Honour found should have been adopted (i.e., forming a windrow only to the west (lower side) of the road) would have been adopted by a reasonable person in the position of Boral; were reasonable; and would have prevented the accident.
2. Much of the oral argument in this Court centred on the factual findings made by his Honour as to what was on the road at the time of the accident and how it came to be on the road. In particular, it was argued by Boral that even if (which was not conceded) there was aggregate from Boral's roadworks in the swathe (rather than, as was contended by it based on Ms Stevenson's evidence, larger blue metal aggregate emanating from the table drain), if there was an alternative source of that aggregate (i.e., the displaced vehicular aggregate) then the finding of negligence could not be sustained having regard to the principles articulated in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358-360 and Bradshaw v McEwans (1951) 217 ALR 1 at 5-6.
3. I turn first to the complaints made as to his Honour's findings on the elements of Mr Pillinger's claim in negligence against Boral and the Council.

Content and scope of duty (Grounds 1, 2 and 17 of Boral's notice of appeal; grounds 1 and 2 of the Council's cross-appeal)

1. The primary judge formulated (at [85]) the duty of care owed by Boral as a duty to take reasonable care in its roadworks with regard to motorcyclists who were themselves taking reasonable care with regard to their riding. As formulated, that was consistent with the way in which a similar duty of care had been recognised in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at [163] and Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [45]. His Honour identified (implicitly if not explicitly) the duty of care owed by the Council (at [115]) in similar but not identical terms as a duty to exercise reasonable care for the safety of road users who were themselves taking care for their own safety.
2. Boral had contended for a more particular duty of care, to the following effect: "a duty to take reasonable care in carrying out its work so that aggregate did not find its way onto the roadway in a quantity sufficient to cause a motorcyclist to lose control" (my emphasis).
3. While this formulation of the duty of care is not challenged in a separate ground of appeal, Boral contends, in the context of its challenges to his Honour's findings of breach (grounds 1, 2 and 17), that approaching the duty of care in the general terms in which his Honour did led to error by his Honour in identifying the risk of harm, assessing its significance, and identifying the precautions that a reasonable person in Boral's position would have taken in response to that risk.
4. Boral's complaint, in essence, is that his Honour's formulation of the duty of care did not include within it a reference to aggregate, which it is then said led his Honour to apply too general a formulation of the risk of harm and a failure to distinguish between roadbase from the Council's works, aggregate from Boral's works and "aggregate that would inevitably find its way to the very place where the swathe occurred but which did so as a result of completely non-negligent means" (this last being referred to in the course of argument in this Court, in a concrete example of personification, as "non-negligent" aggregate). So, understood, Boral's real complaint in this respect is as to his Honour's consideration of the risk of harm, which is addressed below in relation to grounds 3(a) and (b) of the grounds of appeal.
5. The Council for its part, complains that his Honour failed to identify the nature and scope of the duty owed by it. It appears to accept that his Honour identified the duty owed by it (at [115]) as a duty to exercise reasonable care for the safety of road users who were themselves taking care for their own safety, but complains that the difficulty with that identification of the duty is that it differs significantly from the duty formulated in relation to Boral (yet there was no difference in his Honour's treatment of issues as to the foreseeability and insignificance (or otherwise) of the risk of harm).
6. His Honour did not err, in my opinion, in the formulation of the duty of care owed by either of the defendants. In Boral's case, the reference to Boral's "roadworks" necessarily focusses attention on what works Boral was carrying out and how it did so. True it is that its works involved the laying of aggregate (not roadbase), but the sweeping of the excess aggregate to the side of the road added to the then existing windrow of roadbase and as Boral did not suggest that it had removed the composite windrow at the end of its work the leaving of a composite windrow thus can be seen as part of what Boral did in the performance of its works. In any event, it was not necessary in my opinion for his Honour to descend into chapter and verse as to what those works comprised in the formulation of the duty of care owed by Boral. Reference to "its roadworks" was sufficient for that purpose.
7. As to the Council, it appears that it did not dispute that it owed a duty of care to road users in the terms in which his Honour expressed it (his Honour referring to its written submissions to that effect at [4]). That being the case, it is not open to it now to complain that the duty was not identified more precisely.
8. As noted, the real gravamen of the complaints by Boral and the Council on the issue of breach went to matters relating to the risk of harm. To the extent that complaint is separately included in these grounds as to the formulation of the duty of care, it is not made out.

Breach of Duty (Grounds 1, 2, 3(a),3(b),4, 5 and 6 of Boral's notice of appeal; grounds 3-11 of the Council's cross-appeal)

1. Sections 5B and 5C of the Civil Liability Act, although under the heading 'Duty of Care' are "evidently directed to questions of breach of duty" (Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [13]; see also: Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [93]). Those sections provide as follows: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Risk of Harm

1. The importance of correctly identifying the relevant risk of harm (or, as there expressed, risk of injury) was emphasised (in the pre-Civil Liability Act context) by Gummow J in Dederer (at [18]) as relating to the role it plays in the assessment of breach. In cases to which the Civil Liability Act applies, it is necessary for the relevant risk of harm to be properly identified in order to enable an assessment, amongst other things, of what might be a reasonable response to the risk (see Garzo v Liverpool/Campbelltown Christian Science School Ltd & Anor [2012] NSWCA 151 at [25]). More recently, in Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90, this Court noted (at [106]) that generally it is both unnecessary and undesirable to define the particular risk of harm with a high degree of particularity (though for the reasons their Honours there gave it was considered to be necessary in that case).
2. Different formulations of the risk of harm were urged upon his Honour in the present case, with different levels of particularity. His Honour noted (at [88]-[90]) the way in which each of the parties formulated the risk of harm. His Honour considered that Mr Pillinger (whose formulation seems to me to be not far removed from that for which the Council had contended) had cast it too broadly and Boral too narrowly ([91]). The critical difference between the two formulations was that Boral had introduced (or, dare I say, aggregated) into the mix, so to speak, the facts of the severe storm and blockage of the drain. It contends on appeal for a similar formulation.
3. In particular, Boral argues that the risk of harm must be the manifestation of one or more relevant events that were necessary in order to be causative of the accident, those being, first, that a sufficient amount of the aggregate that had been swept to the eastern side of the road with a rotary broom had made its way back onto the road surface; second, the severe storm event; and, third, that there was a blockage of the drain (which caused water and other debris to wash over the road surface taking with it "a sufficient quantity of aggregate so as to contribute to the lowering of the coefficient of friction of the road surface" (my emphasis)).
4. The Council's complaints in this regard went to the findings as to foreseeability, not to the identification of the risk of harm as such. It had itself submitted to his Honour that the risk of harm was "the risk of injury that arises from the presence of material on the road" ([19]).
5. In my opinion, Boral's formulation impermissibly uses hindsight to formulate the relevant risk. True it is that, but for the heavy storm any aggregate pushed to the side of the road may well have stayed there or not ended up back onto the road in any great quantity. Similarly, but for the existence of the blockage in the drain one might have expected (subject to any overflow from the drain caused solely by the volume of water) that rainwater would wash down the table drain and hence that any road building material (be it roadbase, aggregate, or a mixture thereof) left on the side of the road would not end up being washed back onto the road. However, the true source of the potential injury or harm, to someone in Mr Pillinger's position, was the loss of co-efficient friction caused by the presence of a swathe containing roadbase and/or aggregate on the road. How it might get there goes to foreseeability of the risk, not the risk itself. In those circumstances, his Honour did not err in not making specific reference to aggregate (or its source) in the identification of the relevant risk of harm.
6. Indeed his Honour's formulation (insofar as it focusses on a risk of harm referable to the circumstance that the building materials that might be causative of a loss of friction were those that might be swept onto the road) is probably more favourable to the defendants than the way in which I would have formulated the risk of harm. The relevant risk of harm to my mind (consistent with the level of particularity with which the risk was identified in Dederer) could properly have been expressed as the risk of impact with the road following a loss of friction caused by the presence on the road of a swathe containing road building materials.
7. The complaints as to his Honour's formulation of the risk of harm are not, in my opinion, made out.
8. The next questions raised in these proceedings are whether his Honour erred in finding that the risk of harm was reasonably foreseeable by one or both of Boral and the Council (i.e., that it was foreseeable by each that if road building materials were left by it on the side of the road those materials might later find their way onto the road so as to cause a loss of friction for motorcyclists travelling on the road and having due regard to their own safety); whether the risk of harm was not insignificant; and what were the reasonable precautions that should have been taken to avoid the risk of such harm.

Foreseeability (Ground 3(a) of Boral's notice of appeal; ground 4 of the Council's cross-appeal)

1. Boral contends that his Honour failed properly to evaluate the probability of the risk of harm occurring and erroneously attributed to Boral a greater control of the risk than it possessed. The Council complains that his Honour's findings on the issue of foreseeability took no account of his findings as to the nature of the material on the road.
2. For Mr Pillinger, it is argued that the very requirement for excess aggregate to be swept off the road demonstrates the foreseeable risk that its presence (whether coalesced with other material or not) could form a hazard to road users.
3. Turning first to Boral's submissions, it cavils with each of the propositions that led his Honour (at [94]) to conclude that the risk was reasonably foreseeable; that it left "a feathered windrow" containing roadbase and aggregate to the eastern side of a road that had on its eastern side a table drain; that there was no more advanced system of kerbing and guttering; that the road sloped to the west; and that the road was a curving road through a treed rural area in the far north of New South Wales ([93]).
4. It argues, first, that, contrary to his Honour's reasons, it did not leave a "feathered windrow" at all; rather, the feathered windrow was the product of the Council's actions. That, with respect to his Honour, appears to have been the case but, ultimately does not assist Boral since, on its own evidence, what it did leave on the side of the road was a "formed-up" windrow.
5. In this regard, I refer to Mr McPherson's evidence, which his Honour accepted as to the existence of the windrow, to the effect that what was left by Boral at the completion of its spray-sealing works was a formed-up windrow comprised of both roadbase and aggregate, which he expected would be removed by the Council using a grader when it completed the roadworks. Nothing turns on the mis-description of the state of the windrow in this context.
6. What Mr McPherson's evidence clearly supported were findings that: there was a windrow left by the Council to the eastern side of the road before Boral commenced its works and that Boral added to that windrow when it swept the road with a rotary broom both before and after it laid the bitumen and aggregate onto the road. Boral left that windrow to the eastern side of the road when it completed its works. It did not push the windrow to the table drain (knowing that this would cause potential difficulties if the table drain became clogged with the roadbuilding materials) nor did it feather the windrow out or otherwise remove that material. Its expectation that the Council would remove the windrow also does not assist it - rather, what it supports is the conclusion that it must have been aware that if the Council did not itself remove the windrow (opposed to feathering it out between the edge of the road and the table drain) the material would remain on the side of the road (formed-up or not).
7. Second, Boral argues that it was not responsible for removal of the roadbase. That, however, as explained above takes the position no further since Mr McPherson accepted that when it swept the road Boral added to the existing windrow of roadbase and did not remove or feather out that composite windrow. Hence, in fact, it must have been reasonably foreseeable to Boral that if the Council did not in fact feather out the windrow it would remain on the side of the road in a formed up state and that if, conversely, the Council did feather out the windrow that material would nevertheless remain on the side of the road in a flattened out state. The suggestion that the windrow "disappears" when feathered out cannot be understood as a statement that the material simply vanishes into thin air. Unless picked up by shovels or brooms, or pushed into the table drain, or washed away (onto the road or otherwise) the components of the windrow must, after feathering, remain on the side of the road.
8. Third, Boral contends that his Honour made clear (at [159]) that the edge of the road beyond the sealed surface (or shoulder) was not the location of the feathered windrow. It argues that any windrow that may have been left behind by Boral had been feathered out by the Council and was not therefore the source of any aggregate that did form part of the swathe. In this regard, Mr Pillinger contends that his Honour did not (at [159]) make a finding that the "shoulder" was not the location of the feathered windrow of building materials but was there when dealing with the Council's contractual claims, interpreting the word "shoulder" more narrowly than the parties and witnesses in the case had used it.
9. It is clear from his Honour's reasons (at [158]-[159]) that what his Honour there found was that the reference in cl D2.7(iii) of the contract between Boral and the Council to the final sweeping of "shoulders", and the removal of all loose aggregate on the "shoulders" using a vacuum broom, was a reference to an area close to the edge of the paving but still within it and that his Honour concluded that the location of the feathered windrow was not within that paved area. However, again that does not assist Boral in that it does not follow, from that, that the source of any aggregate that found its way into the swathe was not aggregate left behind by Boral. Nor, for the reasons already given, does the fact that the windrow may have been feathered out by the Council, assist Boral. Whether or not it was feathered, unless the material was swept into the drain or otherwise physically removed it must have remained on the side of the road (even if in a flattened out form) and it must have been reasonably foreseeable by Boral (based on the evidence of Messrs McDonnell and McPherson to which I have referred above) that this would be the case.
10. Fourth, Boral argues that the existence of a table drain (rather than an advanced system of kerbing and guttering) was irrelevant insofar as Boral was concerned since Boral was not responsible for its construction and there was no evidence to suggest that Boral might expect the drain to block during a severe storm event. It is submitted that there was nothing unusual about the existence of a table drain; that many rural roads in New South Wales have one; and that there was no evidence to suggest that this table drain was somehow different or particularly unusual compared to any other table drain adjacent to a rural road (a submission that does not sit well with Boral's complaint that his Honour acted without evidence to inform himself on this aspect of the case and had engaged in speculation, since it assumes a degree of general knowledge beyond that which was the subject of expert evidence as to the many rural roads in this State with table drains and the commonality of features of those drains).
11. The relevance of the existence of the table drain (and lack of kerbing and guttering), as I read his Honour's reasons, is that it was acknowledged by those involved in the road reconstruction works that pushing material to the (high) side of a road where there was a table drain could give rise to difficulties in relation to the blockage of the drain and hence its capacity to drain water. That made it more probable that the Council's windrow (that Mr McPherson was clear in his recollection had been left on the high side of the road and was added to by Boral) would not (as Mr McPherson explained) have been feathered out as far as the table drain but, rather, was left (whether feathered out or not) between the resurfaced road and the table drain. From there it should have been reasonably foreseeable to both the Council and Boral that it could be washed onto the road if there was a storm event, particularly if the drain were to be blocked or otherwise unable to cope with the amount of rain. Contrary to the suggestion that an expert hydrologist was necessary to explain the likely flow of water in such a storm event, it is common knowledge that drains (whether in rural or urban areas) can on occasion become blocked by leaf litter or other debris and that such a blockage may cause disruptions to water flow.
12. The criticism made of his Honour's reasoning on this aspect of the matter is not justified. There was evidence (which I have earlier summarised) from which it was open to conclude that both Boral and the Council ought reasonably to have foreseen that table drains could become blocked if road building material were pushed into them and for that reason a windrow should not be created or pushed into or close to (or left near) such a drain.
13. The fifth complaint made as to the foreseeability finding against Boral was the reference by his Honour to the road sloping to the west and to the road being a curving road through a treed rural area. Boral complains that neither of those features was unusual and that neither explains why, in combination or alone, this gave rise to a foreseeable risk of harm. With respect, the relevance of those matters seems to me to be obvious. I agree with the submission for Mr Pillinger that a finding that water ordinarily runs downhill and can carry materials with it was not a matter that required expert evidence. The significance of the camber of the road (of which both Boral and the Council must have been aware given their respective involvement in the road reconstruction works) is that it must have been reasonably foreseeable to each that if the table drain became blocked (as Boral and the Council's witnesses accepted could be the case at least if road building materials were pushed into it, and commonsense suggests might also become blocked by other materials such as leaf litter in a treed area such as this was), then rainwater that was unable to flow through the drain would be likely to run downhill and onto and across the road following the direction of the camber of the road.
14. His Honour's reference to those matters, as part of the set of circumstances in which he found that it was reasonably foreseeable that leaving a windrow (or feathered windrow) to the eastern side of this particular road involved the risk of harm that had been identified, was unexceptional. I do not accept, as Boral contends, that expert evidence was required in this regard (Boral referring in that context, and in the context of the aforementioned criticism of his Honour's reference to the existence of a table drain as opposed to an advanced system of kerbing and guttering, to Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 4 at [64]; cf Schellenberg v Tunnell Holdings Ltd [2000] HCA 18; (2000) 200 CLR 121 at [56]; Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 at 115,117; and Piening v Wanless [1968] HCA 7; (1968) 117 CLR 498).
15. Boral emphasises the evidence given by Ms Stevenson as to the severity of the storm and that water only ran across the road in extreme conditions and when there was very heavy rain, and complains that none of the witnesses called by Boral or the Council gave evidence or were cross-examined about the factors identified by his Honour as giving rise to a foreseeable risk of harm. I have already noted Ms Stevenson's evidence that storms were not unusual in that area at that time of year. Those who were involved in the road reconstruction works were familiar with the north-coastal area of New South Wales and must be assumed to have had experience of rainfall in the region from time to time. Moreover, Ms Stevenson's evidence was not directed to her experience of water running across the road in heavy, or not so heavy, storms in circumstances where there was a blocked table drain. Hence her evidence as to what, in effect, did not happen in less severe storms must be treated with some caution.
16. Relevantly, Messrs McPherson, McDonnell and Matthews accepted in cross-examination that difficulties might be occasioned if road building materials were to block the table drain. That, and the obvious nature of the proposition that water runs downhill (and, if diverted by a blocked drain, will follow the camber of a downhill sloping road) makes untenable Boral's submission that "it could hardly be said that Boral knew or ought to have known that it was foreseeable that a sufficient quantity of roadbase and with it some unidentified quantity of aggregate could be washed over the road surface to reduce the coefficient of friction of the road surface when it was not responsible for knocking off the windrow with a grader after it completed its resurfacing work".
17. Boral also emphasises that aggregate would be displaced into the same area through vehicular movement over the period after it had completed its works. I consider this issue in due course in the context of the challenge to the findings of causation. It does not, however, affect his Honour's finding as to reasonable foreseeability to point to evidence that Boral was aware of an additional source of aggregate that might later be washed back onto the road surface and also pose a risk of harm to motorcyclists.
18. It is submitted that his Honour's finding that the risk of harm was foreseeable was based on impermissible speculation and hindsight reasoning. I do not accept that was the case.
19. The Council's complaint on the issue of foreseeability is that his Honour took "no account" of the findings made concerning the nature of the material. It is submitted that the highest that the relevant findings rose was that there was loose material lying on the side of the road along the length of the works. It is submitted that in those circumstances it was not foreseeable to the Council that the material "would coalesce so as to become a dangerously concentrated amount of material, coupled with vegetable matter, in a narrow swathe across the road". (The relevance of the narrowness of the swathe in that submission was not immediately apparent to me but seems to relate to a comparison between it and the length of road along which aggregate/roadbase was pushed to the side.)
20. The Council goes on to submit (at 40]) that: Given that the road was built with a cross fall and the loose material was lying on its high side a reasonable person would expect the loose material, to the extent it was capable of being moved by water, to run straight across the road. (my emphasis)
21. It is not apparent how it is said that such a conclusion should be drawn. The camber of the road would, I would have thought, provide ample basis for the conclusion that a reasonable person would expect that, if loose material was washed over the road by rainfall running down the side of the road but unable to travel down the table drain, that loose material would be washed across the road following its camber (i.e., in this case in a south westerly direction), which is entirely consistent with Ms Stevenson's observation of the location of the swathe and with the photographs showing discolouration of the road - Exhibit 7 - in that area.
22. The Council emphasises in this regard his Honour's "refus[al] to find that any part of the swathe came from the table drain". It is clear, however, that what his Honour was referring to (at [65]), when he said that "none of the materials on the road that were in the swathe had come from within the drain", was a reference to the rocks or stones that were in the drain, since his Honour went on to refer to the enormous amount of water pressure that it would take to cause rocks or stones to rise up and out of the drain (at [65]). His Honour did not, in my opinion, there exclude the possibility that leaf matter or soil may have washed across the drain from the embankment beyond.
23. Further, it must be remembered that Ms Stevenson gave evidence as to the removal by the Council of material from the drain after the accident in the course of excavation and deepening of the drain and described this as "very neat and tight " (see [55] above). Whether or not Ms Stevenson's recollection of the timing of the drain deepening works was accurate (i.e., whether it was before or after the accident), she had earlier attempted and been unable to unblock the drain herself using a shovel. Her description of the blockage as being very "neat and tight" suggests that the material in the blocked drain was tightly wedged and supports his Honour's conclusion that what happened was that the combined effect of the blockage of the drain by organic matter and the volume of rainwater was that a torrent of water (from further north and/or north-east) crossed the roadway in a general southwesterly direction, carrying with it roadbase and loose aggregate that had been left (feathered to some degree by the Council) on the eastern side of the road and to the west of the drain (but not necessarily the non-organic contents of the blocked drain themselves).
24. The Council, as did Boral, emphasises that the storm was of unusual severity and submits that this was an integer in the foreseeability question that was necessary before a finding of reasonable foreseeability of the risk of harm could be established. However, as already noted, it was accepted by Mr Matthews that if road building materials were pushed into the drain that could cause difficulties with drainage of water in the area. It must logically follow that it was reasonably foreseeable that if the drain were to become blocked (by that or other means) then loose road building materials on the side of the road between the drain and the road might be washed onto the road with whatever else was flowing down the side of the road in a period of heavy rainfall. Whether or not the particular severity of the storm on this occasion was foreseeable, what was clearly foreseeable was that if road building materials were left on the side of the road there was a risk that they would be washed onto the road if the table drain became blocked.
25. His Honour did not in my opinion err in finding that the risk of harm was one of which both Boral and the Council knew or ought to have known.

"Not insignificant" (Ground 3(b) of Boral's notice of appeal; ground 5 of the Council's cross appeal)

1. As to the finding that the risk of harm was not insignificant, Boral complains that his Honour dealt with this in a perfunctory way, did so in a way which was internally inconsistent, and failed to give sufficient reasons.
2. His Honour's finding, briefly expressed, was that the risk of harm (that roadbase or aggregate left in a feathered windrow to the eastern side of the road in the circumstances could wash or otherwise travel across the road reducing friction and endangering motorcyclists: [94]) "whilst not particularly large, was not insignificant" (see [95]). His Honour reached that conclusion having regard to "all the circumstances to which I have referred" and bearing in mind the discussion in Benic v New South Wales [2010] NSWSC 1039. His Honour (at [101]) accepted that the chance that an overflowing drain would cause a swathe of this kind was low and that it would occur at that particular spot was very low, but nevertheless considered that there was a reasonable possibility that at some point along the windrow an excess of water could cause the contents of the windrow to enter the roadway.
3. Boral argues that it cannot be said that the risk of harm was "not insignificant" within the meaning of s 5B(1)(b) of the Civil Liability Act when the evidence established that the method of road resurfacing used on this occasion was the same method used by both Boral and the Council on all resurfacing works and there was no suggestion in the evidence that this method had a propensity for aggregate that had been swept or removed beyond the shoulder of the road to be washed back onto the road surface during heavy rain. It submits that it may readily be inferred that there were many occasions when a feathered windrow consisting of roadbase and aggregate had been swept to the eastern side of a road that had a table drain next to it without any system of kerbing and guttering and, (in what seems another invitation to speculate) that it was also reasonable to infer that a number of those roads sloped from one side to the other. Apart from the fact that this requires impermissible speculation of the kind in which Boral complains his Honour himself had engaged, it cannot be concluded, from the fact, if it be the case, that there have not been similar problems on other similar roads, that there was not a "not insignificant" risk of harm in this case.
4. It is also submitted by Boral that there must have been very little aggregate removed by the process of sweeping of excess aggregate to the side of the road (as opposed to the aggregate arising from natural traffic movements) since 59 tonnes (or 39 cubic metres) of aggregate had been used over an area of just under 4,000 square metres covering a distance of 400 metres over a width of about 10 metres. Boral refers in that context to the acceptance by Mr McPherson that one cubic metre of aggregate is still a "large amount", but submits that this was a "meaningless qualifier".
5. The Council similarly submits that the risk of coalescence of the material was an insignificant risk for the purposes of s 5B(1)(b) of the Civil Liability Act.
6. For Mr Pillinger, it is contended that the source of the aggregate in the swathe is a matter going to causation not foreseeability but that in any event the evidence points against the contention that the swathe was more likely to be comprised of aggregate sourced from moving vehicles. In this regard it refers to the photographic evidence that it maintains does not show excess aggregate having been pushed across by motor vehicles into formed up windrows along the length of the cambered road (and refers to Mr Matthews' evidence in this regard). Reference is also made to evidence from the other motorcyclists (and from Mrs Pillinger and her son) as to the feeling of loose aggregate under their shoes. It is submitted that it may be inferred that the rain had not moved this loose aggregate to the sides of the cambered road and southwest down towards the table drain and the area adjacent to the drain where the swathe came to rest. I consider the significance of the displaced vehicular aggregate later in these reasons.
7. It is submitted for Mr Pillinger that the inference that Boral maintains should be drawn (see [188] above) overlooks the import of, and is inconsistent with, Mr Matthews' evidence that a windrow should never be left on the high side of a road from which it is said that it may be inferred that this is not normally done and that the present works were out of character.
8. While the question whether a risk of harm is "not insignificant" for the purposes of s 5B(1)(b) of the Act requires an assessment of the probability of the harm occurrence of the risk, it is not necessary that the precise manner in which the risk might come to pass be reasonably foreseeable (see Doubleday v Kelly [2005] NSWCA 151 at [11]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [42] - [43]; Shaw v Thomas [2010] NSWCA 169 at [43]).
9. The relevant risk was that a sufficient quantity of aggregate/roadbase from the windrows left on the eastern side of the road both at the accident site and to the north-east of the accident site would be washed onto the road.
10. Having regard to the acknowledgment by those involved in the road building works as to the difficulties that might be occasioned if road building material were pushed into a table drain, and the known characteristics of the road, (including that there was a steep embankment to the higher side of the road), I am not persuaded that the finding by his Honour at [95] was in error. His Honour was entitled to have regard to the circumstance that the resurfacing works were carried out to a road that sloped as this one did, where there was a table drain and steep embankment to the east, and in a treed area where it was not uncommon for there to be heavy rainfall ([94]). All those things combined in his Honour's assessment to produce the conclusion that the risk, though not particularly large, was not insignificant.
11. Mr Matthews' evidence that the Council would never leave a windrow on the high side of the road because of the danger that the table drain would be unable to cope with rain and there would be an increased chance of rainwater flowing across the road taking excess material with it (to which his Honour referred at [98] in the context of what a reasonable person would have done in response to the risk) supports his Honour's conclusions on both foreseeability and significance of the risk of harm.
12. In my opinion, his Honour did not err in finding that the risk of harm was not insignificant.

Reasonable precautions (Grounds 4, 5 and 6 Boral's notice of appeal; grounds 9 and 10 of the Council's cross-appeal)

1. His Honour found the question posed by s 5B(1)(c) of the Civil Liability Act to be a difficult one in the present case. His Honour correctly referred to the matters required to be taken into account in this context: the probability that the harm would occur if precautions were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that created the risk of harm (Civil Liability Act s 5B(2)). His Honour addressed those matters from [101]-[104] and concluded, in effect, that though the chance of a swathe occurring at this point was very low, it was a reasonable possibility and his Honour considered that Mr Matthews' evidence of what he believed was done (i.e., the creation of a windrow only to the west of the road) could inform the assessment of what could have been done on this occasion and that a reasonable person in the position of Boral (and the Council respectively) would have undertaken such a procedure ([99], [100]).
2. Boral points to the fact that his Honour did not consider that Boral had left an excessive amount of roadbase or aggregate in the feathered windrow ([97]) and to the evidence that it was impractical to use some large cleaning machine to pick up every piece of aggregate or gravel to the eastern side of the road (and that to do so in close proximity to the drain could have been very dangerous to the operator).
3. Boral contends that there was no proper basis for his Honour to adopt Mr Matthews' evidence (about what a grader operator should do) and then to apply it to Boral's resealing works when using the rotary broom. Boral relies on the evidence of Mr McDonnell and Mr McPherson in this regard.
4. First, Boral notes that Mr McDonnell gave evidence to the effect that: the first layer of aggregate is laid in such a way that there is not a lot of excess aggregate; it was never Boral's job to remove the survey pegs, rather that was left to the Council; after the Council removed the survey pegs, it was in a position either to remove the windrow or feather it out to the sides; removal of the windrow or feathering out to the sides was the Council's responsibility, not Boral's; Boral cannot remove the windrow or feather it out to the sides until the survey pegs are removed; there is no "rule" preventing the creation of a windrow on the side of the road with an embankment; it was not Boral's practice to sweep aggregate to the downhill side of a road; and that to avoid sweeping aggregate into a table drain, the aggregate is left in a windrow short of the table drain.
5. As to Mr McPherson, Boral points to the following evidence: from his years of experience, a windrow made up of aggregate and roadbase would be left for the Council to come along, remove the survey pegs and "deal with the windrow"; until the survey pegs are removed it is difficult to deal properly with a windrow, for example by spreading it out beyond where it lay; the Council's use of a graded blade to feather out the windrow has the effect of pushing the material further out and flattening it so that the windrow eventually disappears; by doing so, the material is inevitably spread further out of the shoulder of the roadway; there was no need for Boral to do anything more with the windrow because it knew that the Council would come along and deal with it as it had done on every other occasion; and that he estimated, based on his experience, including the use of quite accurate "cockerels", that he did not have to sweep off more than one cubic metre of excess aggregate from the surface of the road for the entire job.
6. The gravamen of the complaint made as to this issue by Boral seems to be that his Honour, having rejected Mr Matthews' evidence as to what the Council's ordinary practice was, relied upon that evidence as informing the question what precautions could have been taken. There is no internal inconsistency in that finding. Mr Matthews was giving evidence that certain works had occurred based on his experience of the Council's ordinary practice. That conflicted with the account given by Mr McPherson of his actual observations on the relevant jobs.
7. I interpose to note that the Council (in submissions addressing its own notice of contention in relation to the contractual causes of action) points out that Mr McPherson, an experienced road builder employed by Boral, had never seen the step his Honour considered reasonable taken in the process of building a road. Significantly, however, Mr McPherson did not suggest it could not be done or that it would be unduly onerous to adopt such a procedure. (He did say a rotary broom could only push material so far.)
8. For Mr Pillinger, it is submitted that his Honour's findings at [100] (to which I have referred at [198] above) led to the inevitable conclusion that the roadbase and aggregate should have been graded and swept to the lower western side of the road.
9. The evidence of Mr Matthews, coupled with the lack of any suggestion by Mr McPherson that such a course would be impossible or unduly onerous or otherwise impractical, in my opinion supported the conclusion that there were reasonable precautions that could have been taken to avoid the risk of harm identified by his Honour.
10. His Honour did not err in my opinion in so concluding.

Adequacy of reasons (Grounds 7, 8 and 9 of Boral's notice of appeal)

1. Reliance is placed by Boral on the statements of principle appearing in Welsch v Carnival PLC t/as Carnival Australia [2014] NSWCA 430 at [5], [9], [61]; Lu v Heinrich [2014] NSWCA 349 at [79] and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] as to the requirement to provide sufficient reasons.
2. Boral's complaint as to the adequacy of his Honour's reasons (in these grounds) is largely based on the complaint that his Honour did not consider normal traffic flow as a potential source of the aggregate (i.e., the displaced vehicular aggregate). Boral submits that this was the most likely source of any aggregate in the swathe and that the principles articulated in Luxton v Vines at 358-360 are relevant in this context.
3. True it is, that his Honour did not address the quantity of roadbase/aggregate within the swathe nor did his Honour attempt to quantify the amount of displaced vehicular aggregate that there may have been on the eastern side of the road. However, it is not surprising that his Honour did not do so. The Court was not taken to evidence as to what amount of displaced vehicular aggregate one might have expected as a result of the ordinary movement of traffic nor as to what were the normal traffic flows over a rural road such as this over that six week period. There was little more than a reference to "small amounts" that would be gradually flicked up or stripped by passing traffic.
4. Counsel for Boral conceded that there was no evidence as to the likely amount of aggregate that would be found deposited on the sides of the road by cars travelling along picking it up in respect of a newly laid road of six weeks. All that Boral pointed to was that the observation by Mr Clark that such aggregate was of the type that is seen in Exhibit 7F and that that is what one would expect to find after six weeks, to which I refer later.
5. From the particle count one might be able to infer that there was not much by way of loose aggregate left on the road that was capable of being picked up and thrown off to the side by a vehicle but this does not assist in determining what amount would be "stripped" (rather than further compacted) by cars passing over this stretch of road over a six week period between the completion of work and the accident.
6. For Mr Pillinger, it is submitted that his Honour did consider other potential sources of the aggregate, insofar as his Honour had regard to the particle count conducted by Mr McPherson (which was the basis of the finding that the excess aggregate left on the road surface by Boral, as opposed to that which swept into the windrow, was "not unusual or excessive"). Mr Seton SC submits that there was no requirement for his Honour to determine how much roadbase and aggregate Boral had swept into the windrow since his Honour had evidence from a variety of witnesses, including those with road building expertise, from which his Honour was able to satisfy himself that roadbase and aggregate had indeed been pushed to the eastern side of the road into a composite windrow about 300 - 500mm from the survey pegs beyond the finished surface of the road but short of the table drain.
7. Insofar as Boral's complaint is as to the fact that his Honour did not give reasons for implicitly rejecting the displaced vehicular aggregate argument, ultimately that complaint goes nowhere unless the conclusion should be reached that the evidence on this point gave rise to a conflicting inference of equal degree of probability such that no affirmative finding of negligence could have been made. For the reasons I give in considering the challenge to the causation finding, I do not consider that the displaced vehicular aggregate evidence goes that far.
8. His Honour was faced with a significant volume of evidence including conflicting descriptions of the various types of non-organic material on and off the road and what I might describe as conflicting case theories of what had occurred. Whatever criticism may be levelled at his Honour for not expressly addressing the significance ultimately attributed by the defendants to the displaced vehicular aggregate, as I have called it, his Honour gave a clear exposition of the reasons for his conclusion that a mixture of aggregate and roadbase had been left to the eastern side of the road (between the finish of the re-sealed section of the road and the table drain - be that properly described as the shoulder or verge or as something else) and why it was that he considered that each of Boral and the Council had been negligent in not removing that material. The complaint made of inadequacy of reasons, other than in relation to the displaced vehicular aggregate is not made out. To the extent that his Honour erred in not separately referring to the role played by the displaced vehicular aggregate, nothing turned on this since there was nothing to raise a conflicting inference of equal plausibility in that regard.
9. These grounds are not made out.

Evidence of Ms Stevenson (Grounds 10 and 11 of Boral's notice of appeal)

1. I have summarised earlier the evidence given by Ms Stevenson in relation to the swathe. Both Boral and the Council place weight on her evidence on the basis that she was the most reliable witness as to the condition of the road surface; what was in the table drain; and the composition of the swathe. As noted earlier, Boral submits that her evidence exculpated it entirely from liability because the swathe contained no aggregate of the type used by Boral in its road re-sealing works.
2. It is submitted by Boral that his Honour failed to give any or any proper reasons for rejecting her evidence about what she observed to be in the swathe. For Mr Pillinger it is noted that in a number of respects his Honour did accept, and relied upon, Ms Stevenson's evidence (as to the clogging of the drain; as to the existence of the swathe across the road; as to it being a "bit of a hump" in the road; and as to there being rock material in the swathe); and that all that his Honour did not accept or inferentially rejected was the evidence as to the size of the material in the swathe. Mr Pillinger submits that his Honour was not bound to accept that evidence notwithstanding that it may not have been challenged or controverted in cross-examination (Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586E).
3. It is clear that his Honour did take Ms Stevenson's evidence into account and properly balanced that evidence with other evidence, such as that of those involved in the road re-sealing works, which gave rise to an inference that aggregate and roadbase from the roadworks had been left to the side of the road (and hence was likely to have been washed across the road with the torrent of water during the storm event). Contrary to the submission that his Honour failed to give reasons for not accepting Ms Stevenson's evidence as to the size of the material in the swathe, his Honour made clear that he did not regard it as conclusive given the lapse of time between her observations (in 2006) and the time at which she provided her statement in the proceedings (in 2012) ([42]). Indeed, the lapse of time was greater than that to which his Honour referred since Ms Stevenson did not make any reference in her statement to the size of the material in the swathe - that emerged for the first time in cross-examination.
4. Support for his Honour's caution in accepting Ms Stevenson's evidence as to the size of the non-organic material in the swathe compared to that which she had seen in the table drain and that which she had used on her property can be found in the disclaimers that Ms Stevenson herself appears to have made as to her recollection. Ms Stevenson apparently considered it relevant to include reference to the length of time since the accident as a preface to her statement. Further, and more significantly, in her answers in the witness box she made it quite clear that she was providing only a very rough estimate of the size of the aggregate she had observed.
5. Questioned as to the size of the material in the swathe, Ms Stevenson's first response was to suggest that an engineer should have been asked that question. It is not suggested that this was a flippant or non-responsive answer. This Court does not have the benefit, as his Honour did, of having seen Ms Stevenson giving her evidence. Nevertheless, from the transcript alone it can be concluded that she was not proffering a confident recollection of the size of the aggregate in the swathe compared to that in the table drain.
6. For Mr Pillinger, it is submitted that Ms Stevenson's recollection of the material lining the drain was premised on the 'misconception' that the Council had undertaken remedial work on the table drain following the accident, deepening it and relining it with larger aggregate. It is accepted by Mr Pillinger that there was no evidence of this and he appears to accept that Mr Matthews, by inference, denied it (referring to his statement - Exhibit 33). Thus it is submitted that there was good reason for his Honour to reject Ms Stevenson's recollection on that aspect of the evidence.
7. Whatever be the position as to the time or times at which the Council carried out works to the table drain (which would be of most relevance only if it could be established from the timing of those works that there could have been no larger sized aggregate in the drain before the accident that was capable of ending up in the swathe), having regard to the evidence of Mr McPherson as to the presence of aggregate from the road surface in the windrow to the east of the road, and having regard to the evidence that the drain was blocked and that it overflowed slightly to the north of where the swathe ended up, his Honour's finding that road-building materials had been washed across the road to form part of the swathe has not been shown to be glaringly improbable or inconsistent with incontrovertible evidence. Reliance on the photographs taken the day after the accident to demonstrate the contrary is an unreliable course, as is reliance on the conflicting descriptions of the colour of the material in the swathe.
8. His Honour was satisfied on the balance of probabilities that what was in the swathe came from the feathered out windrow of roadbase and aggregate on the east of the road. I am not persuaded that this was incorrect nor is it a finding unsupported by the evidence. Grounds 10 and 11 are not made out.

Other errors or deficiencies in findings - ground 12 of Boral's notice of appeal

1. Related to grounds 10 and 11 of Boral's notice of appeal is its complaint that his Honour should have found that, to the extent that there was aggregate in the swathe, it could not be said that the aggregate emanated from work carried out by Boral.
2. On its face, this ground is inconsistent with the evidence of Mr McPherson, who accepted that Boral had in fact pushed aggregate to the eastern side of the road, adding to the windrow of roadbase left there by the Council. However, Boral's complaint under this ground, as evident from its submissions, appears to be a complaint as to the lack of a finding by the primary judge as to precisely how much aggregate from Boral's resealing works would have made its way into the windrow that was found to be created on the eastern side of the roadway and to the west of the drain.
3. For Mr Pillinger, it is submitted that it was not necessary for his Honour to make a finding as to what proportion of the swathe was aggregate that Boral had swept to the side (as opposed to roadbase left by the Council) and that his Honour implicitly found that it was not possible to separate their effects and that, combined, they were jointly sufficient to account for the occurrence of the harm (referring to his Honour's findings where the combination of materials was accepted - see [43], [56], [61], [74], [77], [91], [94], [97], [99], [101], [107], [108], [110], [116]).
4. Boral, however, appears on this issue to be complaining at the failure to distinguish between aggregate pushed across by rotary broom to the edge of the road and the displaced vehicular aggregate. It is submitted by Boral that even if, as his Honour found, Boral ought to have adapted its rotary broom at an angle so as to sweep the aggregate only to the west of the roadway, his Honour did not take into account the fact that a windrow of aggregate from the road surface would still be created over time by the natural passage of vehicular traffic along the roadway. The flaw in that submission is that there was nothing in the evidence from which his Honour could have formed a view as to the amount of displaced vehicular aggregate that would be likely to have been generated on the eastern side of the road in the period of six weeks between the roadworks and the accident. Mr Clark's evidence, as I have indicated earlier, does not assist in this regard. There was, for example, no traffic flow information and no engineering evidence from which one could estimate the likely amount of displaced vehicular aggregate over that period.
5. The most that can be said is that, in addition to the aggregate that Mr McPherson admitted was swept by Boral across the road (which added to the roadbase left by the Council), there was likely in the ordinary course (and assuming the passage of a sufficient level and type of traffic over the area in the intervening six weeks) to have been some displaced vehicular aggregate somewhere on the eastern side of the road. In those circumstances, his Honour did not err in not making a finding to the effect of that contended for by this ground of appeal.
6. Boral also complains in this context of the lack of analysis or discussion by his Honour of the fact that it was up to the Council to decide what it did once Boral completed its work. Boral submits that it had no idea what the Council was going to do once Boral left the road after completing its contractual obligations.
7. In response to this submission, Mr Pillinger points to the evidence that was given by Mr McDonnell and Mr McPherson of their knowledge and expectation, based on every previous job, which was that the Council would feather out any existing windrows. It points to the evidence that Boral knew that the Council customarily used a grader in preparing the roadbase and created windrows of excess material on the sides of roads, and that knowing this Boral first swept additional roadbase and then aggregate onto the pre-existing windrows where it was left in the customary knowledge and expectation that Council would feather it out (notwithstanding that it was contractually responsible to remove aggregate). Therefore, Mr Pillinger submits that while Boral's employees may not have known precisely what the Council in fact did or did not do on any particular job they had an expectation of what would be done and, having created a risk of harm (by adding to the existing windrow) they then entrusted the Council with its removal.
8. I consider in due course the submissions made as to causation and apportionment of responsibility having regard to the respective roles of Boral and the Council. Suffice it for present purposes to note that I am not persuaded that there was a deficiency in his Honour's reasons of the kind suggested by Boral in grounds 10-12 and, to the extent that there was no discussion of the displaced vehicular aggregate as a possible alternative source for the gravel in the swathe, this does not lead anywhere.

The Council's complaints as to factual findings (Grounds 6, 7 and 8 of Council's cross-appeal)

1. I interpose here to address the particular complaints that the Council makes as to the factual findings made by his Honour. I do so for completeness, since they raise issues in part if not wholly dealt with in various of the Boral grounds of appeal.
2. The Council contends that his Honour erred in finding that when it completed preparation of the road surface there was on the eastern side of the road either a windrow comprised of roadbase (ground 6) or an excess material comprised of roadbase (ground 7). It also contends that his Honour erred in, and provided no adequate reasons for, rejecting Mr Matthews' evidence as to how the Council conducted its part of the roadworks (ground 8). However, in oral submissions Mr Sheldon SC indicated that the only part of that ground which the Council now presses is the error it has identified in his Honour's rejection (or non-acceptance) of the evidence of Mr Matthews that excess gravel from the surface of the road would not be left in a windrow but would be feathered out beyond the shoulder of the road (i.e., the proposition that the feathering out of the windrow would lead to its disappearance).
3. There can be no real complaint as to the finding that the Council left a windrow of roadbase on the eastern side of the road when it completed its preparation for the spray-sealing of the bitumen by Boral. Mr Matthews' evidence went to what the normal practice of the Council was. He was not involved in the supervision of the Council's preparatory works. Mr McPherson was directly involved in the spray-sealing works and gave unshaken evidence as to his observation that there was a windrow of roadbase left by the Council when Boral commenced its works.
4. Insofar as the Council complains that his Honour made inconsistent findings as to the state of the material lying to the east of the road, that complaint is in my opinion without foundation. What is suggested by the Council was that there is an inconsistency between the finding (at [56]) that after the works were completed there was a windrow comprised of roadbase from the Council and aggregate from Boral on the eastern side of the road and the finding (at [61]) that, when the works were completed, there was not a "formed-up windrow of roadbase and aggregate to the east of the road" but, rather, there was a quantity of roadbase and aggregate lying to the east of the road (and that it was Council who had feathered it out).
5. There is no necessary inconsistency between the two findings. At [56], his Honour must be speaking of a windrow that had been feathered out to some degree, as is apparent from the summary of this finding at [74]. The only distinction then is between a formed-up windrow and a windrow that has been feathered out to some degree. A similar complaint as to inconsistency is made in respect of his Honour's finding that there was a quantity of roadbase and aggregate lying to the east of the road which was not in a formed up windrow, and fails for the same reason.
6. The Council nevertheless submits that his Honour did not make a finding that the quantity of roadbase and aggregate left to the side of the road was excessive and says that such a finding could not have been made by virtue of his Honour's acceptance (at [97]) of the evidence that it would have been impractical to use a large cleaning machine "to pick up every piece of aggregate or gravel". The difficulty with this submission is that a finding that there was not an excess of material left in the feathered out windrow on the side of the road would not have assisted the Council. It was not the "excessive" amount of such material that was the cause of the accident; it was that there was sufficient material left on the side of the road to cause a loss of co-efficient friction on the surface of the road when it was washed across the road during the storm. It may be accepted that it would not be reasonable to expect the Council to pick up every loose piece of aggregate or gravel but that was not the issue here. Rather, the issue was whether the Council should have not left a feathered windrow on the eastern side of the road near the table drain at all.
7. Turning then to that part of ground 8 that remains pressed on this appeal, the Council submits that his Honour's use of the expression "feathered windrow" (for example at [99]) failed to take into consideration the evidence of Mr McPherson that the concept of feathering involved the windrow "eventually disappearing". The Council argues that, having regard to that evidence, his Honour's finding (at [61]) that the Council had feathered out the windrow means that there was no windrow in existence. Therefore, the Council submits, as his Honour did not find that the leaving of loose material on the road side was negligent or that it could have been prevented, his Honour erred in finding that the Council had breached its duty.
8. As explained earlier (see [167]), the notion that the windrow "disappears" when feathered out cannot be understood as a statement that the material simply vanishes into thin air. The reference to the windrow "eventually" disappearing indicates that it may take time for the components of what was initially a 'formed up' windrow to be dispersed away from the location where they have been feathered out. Ground 8 of the Council's cross-appeal is not made out.

Expert evidence (Grounds 13 and 14 of Boral's notice of appeal)

1. In essence, the complaint made by Boral in these grounds is that his Honour elided questions of fact that required expert opinion to determine and impermissibly relied on his own knowledge to reach conclusions as to the material in the swathe. Boral complains that his Honour did not attempt to engage in any analysis of the expert evidence.
2. Boral notes that although there was only passing reference to the expert evidence by Mr Pillinger in his written submissions at first instance the Council dealt with that evidence at some detail and Boral points to reference that it also made to the expert evidence in written and oral submissions.
3. In particular, Boral refers to the following evidence of Mr Clark (which Boral maintains his Honour should have referred to and considered):

• that there were other potential sources of aggregate and that the photographs taken some six weeks after the works had been completed showed the road to be in excellent condition;
• that the road reconstruction was designed with a standard camber from the centre to the road edges along the straight lengths and superelevation around the curves;
• that the photographs show some loose aggregate on the outside of the sealed surface but not on the trafficked area;
• that the materials used for the road resurfacing were of good quality and were satisfactory for the work;
• that heavy rainfall could have washed both loose aggregate on the surface of the trafficked road and the shoulders down and across the road so as to deposit it on the western side of the road;
• that after the surface of a newly constructed/resurfaced road is opened to traffic, it is common for some aggregate particles to be moved from the surface by the action of vehicle wheels and that those loose aggregates are thrown to the side of the vehicles and progressively moved to the sides of the road which do not have vehicles travelling along them;
• that in addition to loose aggregate being moved across the surface of the road by wheel action it can be moved by surface water flows, that depending on the geometry of the road and the intensity of the water flow the aggregate may be moved off the pavement and down batters, into roadside drains or gutters or deposited along the pavement shoulders;
• that surface water flows can also move loose aggregate which had previously been moved to the sides of the pavement by sweeping or wheel action to the areas described above or back onto the pavement;
• that loose aggregate does not remain on a trafficked pavement for any significant period of time because of wheel action from vehicles using the road;
• that any washing of loose aggregate from the sides of the road onto the trafficked surface of the road would have commenced with the beginning of the rainfall over the 24-hour period preceding 9am on 19 January 2006 and, over that period, traffic using the road as well as the continuing rain would have had the effect of moving any loose aggregate to the sides of the road;
• that he did not consider that the terracotta coloured area of the road surface shown in the photographs (the swathe area) contained a significant quantity of material such as to cause fishtailing or loss of control of a motorcycle;
• that he considered the material, comprising fine particles or silt rather than stones, did not appear to be covering the surface of the seal and forming a layer over it, but rather to be material resting in the hollows between individual aggregate particles.

1. The relevance of Mr Clark's evidence in this regard goes primarily to the complaint that his Honour did not take into account the displaced vehicular aggregate i.e., the aggregate that would in the ordinary course, as a consequence of the road building technique that had been used, be displaced to the side of the road by vehicular movements.
2. Boral also points to Mr Clark's evidence as to the efficacy of use of a vacuum broom (i.e., his agreement with Mr Johnston that while it would remove most of the aggregate left on the road after resurfacing, there would always be a small amount of residual aggregate that is left on the roadway, including the shoulders, from this process) and to Dr Rechnitzer's evidence that use of a vacuum broom would not be effective in removing loose aggregate to the sides of the road and road shoulders. Boral emphasises that all three experts agreed that there would probably be some additional stripping of aggregate from the road surface from passing traffic; and that use of the vacuum broom would not prevent any remaining aggregate from returning to the trafficked roadway under certain conditions.
3. Pausing there, insofar as that evidence went to the use of a vacuum broom it is of little assistance in determining whether there was negligence in the manner in which the road building materials were left on the side of the road in this case - since it is common ground that a vacuum broom was not used. Moreover, this evidence seems to relate to the removal of loose aggregate on the road, not the side of the road.
4. Boral submits that this Court is in as good a position as the primary judge to determine this issue (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]) and that Mr Clark's evidence ought to have led to the conclusions that: any risk of harm was not foreseeable to Boral; even if foreseeable, it was not "not insignificant"; even if foreseeable and not insignificant, a reasonable person in the position of Boral would not have taken any further or other precautions in response to it; and/or even if all of the above were determined in favour of Mr Pillinger, he had nevertheless failed to prove that the failure to take any further or other precautions by Boral was causative of his accident.
5. For Mr Pillinger, it is noted that his primary position was that the lay evidence was sufficient for the primary judge to make all the necessary factual findings as to the state of the roadway, including evidence from those experienced in road construction. Further, it is submitted that, implicit in the evidence of Mr Clark on which Boral places reliance, was the foreseeability of heavy rainfall washing aggregate onto and across roads. It is submitted that how Mr Clark interpreted the photographs was of little or no use to his Honour and that Mr Clark's evidence did not grapple with the factual findings made by the primary judge as to the composition and source of the swathe.
6. I have summarised earlier the lay evidence as to what was in the swathe and the evidence from those involved in the road building works that explains how the non-organic material was left on the side of the road (in a feathered out form at least to some degree).

Causation (Grounds 15, 16 and 18 of Boral's notice of appeal; grounds 12 - 18 of the Council's cross-appeal)

1. His Honour found that, but for the roadbase and aggregate being left in the feathered window to the east, the swathe from the torrent of water would have been markedly different in that it would have comprised only an amount of dirt and organic matter from the west of the drain and to the east of the road (no more than a "stretch of dirt and leaves" on the road ([108]). Without the roadbase and aggregate his Honour considered that the swathe would not have been as deep and extensive and would not have been as likely to provide a moveable surface (such a surface reducing friction and control). Hence his Honour concluded that the presence of the swathe, containing roadbase and aggregate from the windrow, was a necessary precondition of the harm that Mr Pillinger suffered ([110]).
2. Boral contends that there was no, or insufficient, evidence for his Honour to find that material which Boral may have left on or near the road surface (in circumstances that amounted to a breach of duty on its part) then found its way to be available to form part of the swathe, and that it played a contributing role in Mr Pillinger losing control of his motorcycle.
3. It is submitted that the findings (at [62]) as to the dislodgement of aggregate by passing vehicles and the lack of excessive aggregate on the road apart from what was in the swathe make the finding of causation against Boral one that cannot stand because any alleged failure by Boral (i.e., the failure to ensure that the windrow was not left on the high eastern side of the road) was not a necessary condition of the injury on application of the "but for" test (Adeels Palace Pty Ltd v Moubarak at [55]). Boral accepted that normative considerations informing inquiries into the proper scope of liability did not arise in the present case (Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [22]).
4. Boral emphasises the finding that it did not leave an excessive amount of roadbase or aggregate in the feathered windrow and the findings that, when the works were completed, there was no formed-up windrow of roadbase and aggregate to the east of the road and any roadbase and aggregate that may have been left following completion of Boral's resurfacing work, was then feathered out by the Council some time later, but before the accident. Boral submits that it had no control whatsoever over what the Council did at that time. I have earlier addressed the complaints Boral makes as to his Honour's findings in this regard.
5. Boral also emphasises that the swathe was only 450-500mm wide or long and spread across the road. It submits that, any aggregate for which Boral may be responsible therefore had to come from a windrow only 450-500mm in length off the side of the roadway. I have some difficulty with that submission. It seems beyond dispute that in the severity of the storm a torrent of water came down the hill (and down the embankment presumably). The table drain was blocked. Therefore, one would assume that material flowing from further north would become part of the water washing over the blocked drain. Hence the width of the swathe does not necessarily determine the width of the area on the side of the road from whence the offending aggregate came. However, this was not debated in argument and I do not rely on this for the conclusion I have reached on the issue of causation. Perhaps the submission should best be understood as being that since the negligence lay in leaving a feathered out windrow between the re-sealed road and the blocked drain, it could only be the amount of aggregate and roadbase in that area that was relevant to consider in terms of the causative effect of such material.
6. Boral points to the experts' agreement that the amount of "gravel" needed to cause loss of control was indeterminate due to unknown variables such as "total friction demand (speed v radius v acceleration), material properties and underlying surface". Boral maintains, therefore, that any alleged act or omission by it was not a necessary condition of the occurrence of Mr Pillinger's injury and submits that the finding of causation cannot stand.
7. On the issue of causation, the Council reiterates its argument as to the inconsistency in the findings as to the state of the material lying to the east of the road (which I have already considered). The Council further submits that there was no evidence to sustain the proposition that roadbase in the swathe made any contribution to the slipperiness of the road surface. It contends that the evidence proceeded on the basis that the loose aggregate was apt to reduce friction (referring to Dr Rechnitzer's report; Mr Johnston's report; and the joint report). It maintains that it was not shown that "but for" the presence of roadbase the accident would not have occurred and that the expert evidence showed that the presence of aggregate would have caused sufficient reduction in the coefficient of friction to cause difficulties.
8. I interpose to note that Boral maintains that the Council's reference to Dr Rechnitzer's statement that "loose aggregate was apt to reduce friction" in this regard is misconceived since Dr Rechnitzer was there referring to the effect of "roadway debris" on vehicle "deceleration" and he went on to state that, according to the plaintiff and the Police report, it was "loose material" present on the road that caused the loss of control of the motorcycle. Boral also notes that Dr Rechnitzer said that "[m]ud, sand or gravel on a paved surface can result in losses of control if significant manoeuvres, such as stopping, accelerating, or cornering, are attempted" but that the term "gravel" was agreed by the experts as referring to "natural material, natural small stones, not aggregate".
9. Boral also argues that the Council's reference to Mr Johnston's evidence is misconceived as Mr Johnston was there talking about "wet clay over asphalt" not loose aggregate on the road surface. Boral points to the Joint Report which deals with the effect of "loose gravel" on a road surface and that all the experts agreed that there was foreign material other than "gravel" on the road. Boral says that the term "gravel" was used here to describe both loose aggregate from the sealing work and material washed across the road from adjacent land and which had been described as having a "terracotta" colour.
10. The Council points to the evidence that Boral would cause the material it generated to be swept to both sides of the road and therefore maintains that even if the Council had swept all the roadbase to the western side of the road, road building material (although on this hypothesis only aggregate) would have been deposited on the eastern side anyway. That submission, however, does not take into account the subsequent failure of the Council to remove the feathered out windrow at the conclusion of the installation of the guideposts. Similarly, the submission that there was no exposition by his Honour of how loose material on the eastern side of the road (not in a formed up windrow) would not have been generated if the Council had graded only to the western side of the road begs the question of the Council's involvement in the finalisation of the works.
11. The Council argues that the test of causation in cases of multiple tortfeasors, articulated in Zanner v Zanner [2010] NSWCA 343; (2010) 79 NSWLR 702 (at [11]) by Allsop P, as his Honour then was; namely, that the test involves the requirement that "if either episode of neglect had not occurred the accident would not have occurred", was not met. It submits that the evidence did not justify the conclusion that, absent the negligence of Boral, the accident would still have occurred (i.e., it maintains that it was not shown that the breach by the Council was necessary to produce the harm). Rather, it contends that the evidence showed that the presence of Boral's aggregate on the road could cause the accident in and of itself.
12. Boral's complaint as to inconsistency in the findings of the primary judge (at [61]-[62]) and the lack of analysis or discussion as to the quantity of roadbase or aggregate that may have been lying to the east of the road, or how that material may have been sufficient to wash onto the road; or of how much roadbase or aggregate could possibly have been within the area of the swathe at the relevant time, is relevant to its complaint as to the findings on causation. It places emphasis on the finding that, in accordance with the process of road resealing, ordinarily there would be aggregate displaced to the side of the road. It is submitted that logically the materials in the swathe could only have been from vehicular movements.
13. The significance attributed to the displaced vehicular aggregate by Boral is that it submits that the natural effect of this would be that the stones in the feathered out area would dam up behind the stones which were in front (from the wheels of vehicles) and the stones in front would be pushed down and therefore the aggregate from the swathe is the aggregate from the vehicular movement. It is unclear how that conclusion could be drawn - it would surely depend on the velocity and direction in which the displaced vehicular aggregate was "flicked" over to the side of the road.
14. Boral relies upon Exhibit 9 as showing that the swathe, or the water, carried with it aggregate moved by the passage of motor vehicles. It is said that this is demonstrated by the fact that, in that photograph, there is an absence of aggregate on the north eastern side of the road that otherwise appears further to the south on the eastern side. It is difficult to draw that conclusion from the photographs alone.
15. Boral further contends that his Honour ought to have determined the matter in its favour having regard to the findings that: it was not possible to state with any accuracy the degree of grip or slipperiness that the swathe provided ([71]) (a finding made in the context of determining the speed at which Mr Pillinger was travelling); Boral did not leave an excessive amount of roadbase or aggregate in the feathered windrow ([97]); the chance that an overflowing drain would cause a swathe of this kind across the road was low ([101]); and the chance that an overflowing drain would cause a swathe of this kind at that particular spot was very low ([101]). It emphasises that it had the benefit of a positive finding by the primary judge that it had carried out its roadworks properly and in accordance with the usual practice.
16. It is submitted that his Honour impermissibly speculated that part of the aggregate that Boral had removed from the road surface by a rotary broom, and which was then removed by the Council by feathering out the windrow before placing the guideposts, was washed back onto the roadway. It contends that it is of particular significance that the swathe was only 450 - 500mm wide and spread across the road and submits that therefore, any aggregate for which Boral might be responsible had to come from a windrow only 450 - 500mm in length off the side of the roadway.
17. Mr Pillinger does not dispute that he bore the onus of proof on the issue of liability. However, it was not for him to disprove any or every conjectured alternative explanation for the non-organic material on the road.
18. In Luxton v Vines, where the circumstances gave rise to "nothing but conflicting conjectures of equal degrees of probability", the majority of the High Court held that no affirmative inference of fault on the part of the car driver could reasonably be made (see majority judgment at p 360). Similarly, in Bradshaw v McEwans the High Court said (at p 5): We are concerned with probabilities, not with possibilities. … [in a civil case dependent on circumstantial evidence] you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of mere conjecture… But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise
19. Here, the evidence in my opinion fell short of the kind of situation there considered. This is not a case where it is a matter of conjecture between inference of equal degrees of probability i.e., whether aggregate in the swathe was displaced vehicular ("non-negligent") aggregate as opposed to material from the feathered windrow. There was sufficient evidence from which his Honour could be well satisfied, as he expressed himself to be, that material from the feathered windrow had ended up in the swathe. There was nothing to support any conflicting inference as to the quantity of any displaced vehicular aggregate thrown to the side of the road in the relevant period.
20. Counsel for Mr Pillinger, Mr Seton, points to Mr McPherson's evidence of the windrow and to Ms Stevenson's observations of the blocked drain below the steep embankment as supporting the inference his Honour drew. It is submitted that the relevance of the satisfactory particle count is that it was reasonable to conclude that there was not excess gravel on the road before the storm (and, if so, it cannot be inferred that there would be a similar quantity of aggregate displaced by that method as was available to be washed across the road from the feathered windrow).
21. Mr Seton accepts that it may readily be inferred that the torrent of water in the storm would also carry with it displaced vehicular aggregate but maintains that there is no conflicting inference that it carried only such displaced vehicular aggregate and not the material that had been in the initially "formed-up" and then feathered out windrow.
22. To the extent that the submissions made by Boral and the Council on the issue of causation effectively amount to an argument that if the material left by the other (roadbase or aggregate as the case may be) would of itself have caused the accident then any negligence on the part of it cannot be established, this places emphasis on their respective roles in creating and adding to the windrow. However, ultimately it was not the creation of the windrow of itself that caused the problem; rather, it was the failure of each to remove the windrow in such a way that there did not remain (feathered out) an amount of loose roadbuilding material that was capable of being washed back onto the road during a storm. Hence the submission by the Council that its failure to sweep roadbase only to the western side of the road was not causative of the accident does not assist it because its failure to remove the windrow to the eastern side (even if that only comprised aggregate) was a necessary condition of the accident; i.e., something but for which the accident would not have occurred.
23. The experts agreed that loose "gravel" can cause a lack of friction. Even if loose gravel is understood as being something other than aggregate, there is no reason for concluding that small stones can cause a loss of friction but that small pieces of 14mm aggregate, or crushed sandstone or other rocks used for the road re-surfacing would not. (I note in this context that Mr Matthews gave evidence that the existing bitumen surface, once dug up, could be reused in the making of the new road and identified from photos (Exhibit 7B) roadbase in the make up of material at least on the western side of the road. Therefore, it is at least conceivable that aggregate displaced by vehicular movement in the manner suggested by Mr Matthews might have comprised some roadbase. Again, however, that was not the subject of argument and I do not rely on this when reaching the conclusion I have as to causation.)
24. In my opinion, his Honour did not err in concluding that the presence of a combination of roadbase and aggregate in the swathe was a necessary condition of the harm occurring. It was not necessary (nor would it have been practicable in light of the evidence on this issue) for his Honour to seek to determine the amount of each of those components in the swathe. Each of Boral and the Council had an opportunity to remove the windrow that had been created by a combination of their actions and each failed to do so. But for Boral's failure to remove the windrow (to which it had added aggregate), the accident would not have occurred. But for the Council's failure, when it completed the roadworks, to remove the windrow (other than by feathering it out as it did), the accident would not have occurred. The carrying out of the roadworks was in a practical sense a joint enterprise. Both contributed to the creation of the windrow and both failed to remove it.

Contributory negligence (Grounds 19 - 21 of Boral's notice of appeal; grounds 19 - 21 of the Council's cross-appeal; grounds 1 - 3 of Mr Pillinger's cross-appeal)

1. As noted earlier, his Honour determined that Mr Pillinger had been guilty of contributory negligence and reduced the damages recoverable by him by 10%.

Contention that there should have been a finding of a greater degree of contributory negligence

1. The Council has adopted Boral's submissions on this issue. Boral maintains that there ought to have been a substantially greater finding of contributory negligence, and that the error is sufficiently significant to warrant appellate interference (having regard to the principles articulated in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492).
2. Boral contends that his Honour should have found that Mr Pillinger was travelling at an excessive speed and in excess of 80kph based on the expert evidence. However, in so contending Boral does not point to any particular aspect of the expert evidence that placed Mr Pillinger's speed as being in a range from 64 to 83kph.
3. His Honour concluded, accepting that expert evidence, that on the balance of probabilities Mr Pillinger was riding at or slightly below the speed limit. As I understand the reasoning it was that of the applicable range of speeds, more fell within the speed limit than outside it. The criticism of his Honour's finding was not based on any argument as to its statistical correctness, so I need not consider that aspect of the reasoning. Rather, Boral relies upon the implications to be drawn from the fact that Mr Pillinger's motorcycle was a powerful 1200cc machine and from the circumstances in which Mr Pillinger overtook other riders after having left Nimbin.
4. As to the first, the fact that it was a powerful motorcycle does not permit the inference that, in riding it, Mr Pillinger was speeding or more likely than not to be speeding. The speed at which a vehicle is capable of being driven says nothing about the speed at which it was being driven at any particular time or place. A law-abiding car driver might, for example, drive a Porsche within an 80kph speed limit even though such a car would be capable of travelling at a much faster speed.
5. As to the second, Boral submits that his Honour should have concluded that it was more probable than not that, having travelled at a speed capable of overtaking other riders who had left Nimbin 10 minutes ahead of him (and whose evidence was that they were travelling at 80kph, from which it is inferred that Mr Pillinger must have been exceeding the speed limit at that time), Mr Pillinger was travelling and would have continued to travel at a speed exceeding the speed limit rather than to slow down after overtaking those riders. Boral notes the evidence that Mr Pillinger was "well ahead" of those riders when the accident occurred (referring to Exhibit K). It also notes that the evidence from those other riders is that Mr Pillinger had planned to get ahead of the group who left before him, get to Beaudesert and re-fuel, and that by the time he did that they would catch up to him.
6. Again, the fact (assuming it be the case) that Mr Pillinger was exceeding the speed limit when overtaking other riders says nothing about whether he continued to do so after overtaking them. Nor does the suggestion that he may have been in a hurry to get to Beaudesert to re-fuel take the matter any further. As to the evidence that Mr Pillinger was "well ahead" of the riders that he had overtaken by the time they came upon him after the accident, the evidence from Mr Humberdross was that he had slowed down to allow other riders to catch up with him.
7. Mr Humberdross did not remember how long after Mr Pillinger had passed him (which happened five or ten minutes out of Nimbin) that he came upon Mr Pillinger lying on the road after the accident. He said he thought it was probably a few minutes or a couple of minutes and that Mr Pillinger had passed him and went out of sight. Mr Humberdross said that this was because he had been waiting for a friend. In re-examination Mr Humberdross agreed that he had "slowed right down" for a while as he was waiting for a friend.
8. From that, it cannot be inferred that the reason Mr Pillinger was well ahead of the group he had overtaken by the time they found him on the road (even accepting the generality of the phrase "well ahead") was because he was speeding.
9. Boral also submits in this context that the swathe ought to have been readily observable from some distance to a motorcyclist travelling along the road and exercising reasonable care for his own safety, such that Mr Pillinger should have had ample time to take evasive action, including slowing down. However, there was no evidence that the swathe had been obvious to other riders travelling north at any particular distance in advance of reaching the swathe.
10. I am not persuaded that the finding of contributory negligence should have been substantially greater. Indeed, as will be seen from the following, I consider that there should have been no finding of contributory negligence.

Mr Pillinger's cross-appeal

1. Mr Pillinger maintains that his Honour erred in finding contributory negligence on his part. It is submitted that, his Honour having found Mr Pillinger was travelling at or slightly below the speed limit and that he was a cautious motorcyclist, there was no justification to impose upon him the obligation of watching both sides of the road as he travelled south so as to be on notice of and to remember any hazard for his return journey.
2. Amongst other things, Mr Pillinger argues that there was insufficient attention paid at the hearing as to how much time had expired between passing the swathe heading south and hitting it coming north. His Honour simply referred to "a short time before the northerly journey, in that only a period of lunch intervened" (at [138]). It is noted also that the question as to how many kilometres Mr Pillinger had travelled that day from beginning to end and from the swathe to Nimbin and back were not the subject of evidence or considered by his Honour.
3. Mr Pillinger also notes that there was no evidence from other witnesses as to the depth and appearances of the swathe when they were travelling southbound. He accepts that it is reasonable to proceed on the basis that the swathe might have covered most of the road's width, but it is submitted that it was necessary for the defendants (who bore the onus of proving contributory negligence) to prove matters such as its dimension, colour and composition as it appeared to a rider travelling south before any finding could be made as to whether a rider in Mr Pillinger's position did or should have noticed the swathe when he was heading south. It is also noted for Mr Pillinger that there was no evidence as to whether Mr Pillinger had intended, as he travelled south, to return via the exact same route, or at the very least over the same portion of Blue Knob Road (some of the group having returned by a different route), a matter that would be of relevance when considering whether Mr Pillinger ought to have paid particular attention to, and remembered, the state of the road when travelling south.
4. In the absence of evidence as to what was visible to the southbound group of riders other than their general acceptance of the need to look out for hazards on the road, there was no basis for the conclusion that Mr Pillinger did see, or should, riding prudently, have seen, the swathe on his southbound trip. There was, for example, no evidence as to in what formation the group was travelling at the time and where in the group Mr Pillinger was travelling from which one could assess how visible that part of the swathe which was on the other side of the road to him was.
5. His Honour did err in my opinion in finding that there was contributory negligence on Mr Pillinger's part. Mr Pillinger's cross-appeal on that issue should be allowed and the full amount of the agreed quantum of damages allowed.

Apportionment (Grounds 22 and 23 of Boral's notice of appeal; grounds 22 and 23 of the Council's cross-appeal)

1. Unsurprisingly, Boral and the Council take opposing positions on the issue of apportionment. Boral maintains that its share of responsibility was less than that of the Council; the Court maintains in effect that his Honour's apportionment was too generous to Boral. Boral also complains as to the adequacy of his Honour's reasons on apportionment. That last complaint can be quickly dismissed. His Honour gave clear and cogent, though brief, reasons as to the basis on which he reached his conclusion as to the apportionment of responsibility and the complaint in this respect is without foundation.
2. Turning to the substantive challenge on this ground, Boral submits that his Honour's findings on the apportionment issue are inconsistent with the finding that Boral completed its work entirely in accordance with its contract. It says that its work was undertaken in accordance with the way it had undertaken resealing works for the Council in the past and notes that Mr Matthews confirmed that Boral had done its work in the same way that the Council had done it in the past. It is submitted that, whether the Council or Boral did the work, there would, in the ordinary course of events, be small amounts of single aggregate stones left in the feathered-out way beyond the shoulder and towards the survey pegs since that was the way the work was customarily done.
3. Boral thus submits that the Council should have been found to have a substantially greater proportion of responsibility.
4. The Council, for its part, maintains that the central responsibility lay on Boral to remove any windrows.
5. The Council points to Mr McDonnell's evidence to the effect that he understood it was a requirement of the contract that Boral return to the site within a week of completion and that he did not know if it was done in this case, as well as the evidence that Mr McPherson too did not know if it was done, and argues that the potency of Boral's breach was much greater than that of the Council.
6. His Honour's apportionment of responsibility as between Boral and the Council was an exercise of discretion as to which reasonable minds may differ in opinion (Podrebersek v Australian Iron & Steel) and which the Court does not lightly review (see Macfarlan JA in Central Darling Shire Council v Greeney [2015] NSWCA 51 (at [66])).
7. In the present case no error of principle has been demonstrated. The complaint is in effect as to his Honour's assessment of the relative culpability of each. Appellate intervention would be warranted only if the apportionment is unreasonable or plainly unjust. I am not persuaded that it is in this case. There might well have been an argument that the responsibility was 50/50, since both were responsible for leaving a part of the composite windrow on the high side of the road, both were aware or should have been aware of the factors that posed a risk to motorcyclists if the material were left by them, and both had an opportunity (and arguably in the case of Boral a contractual obligation) to remove the windrow that was created on the eastern side of the road. Alternatively, others might have considered that the Council, having had the last opportunity and the overall control of the roadworks, had a greater degree of culpability. Nevertheless, the outcome is not one that is unreasonable or so plainly unjust that it bespeaks error in the House v The King sense (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505).
8. I do not consider that his Honour's exercise of discretion in apportioning responsibility has miscarried and I would not interfere with it.

Contractual claims (Grounds 24 and 25 of Boral's notice of appeal; grounds 1 - 5 of the Council's amended notice of contention)

1. I turn now to the respective challenges to his Honour's findings on the issue of the alleged contractual breaches.
2. Boral challenges the finding made against it on the Council's claim for breach of cl 10 of its contract with the Council. It contends that his Honour erred in finding that the clause indemnified the Council with respect to its own negligence to Mr Pillinger.
3. The Council for its part has filed a notice of contention in which it challenges his Honour's findings in respect of the alleged breaches of cl D2.7 of its contract with Boral and in failing to find that, pursuant to cl 8 of the contract, Boral was liable to indemnify it in full.

The contract

1. The relevant contract was entered into following acceptance by the Council of a tender submitted by Boral in accordance with a Request for Tender document ("RFT") issued by the Council. As will be explained below, the terms of the RFT formed part of the ultimate contract between the parties when Boral's tender was accepted.
2. Section A of the RFT provided that the contract was a "schedule of rates contract" and identified the Conditions of Contract by reference to an Australian Standard form contract (AS4305-1996). Special conditions of the contract were specified in Section C of the RFT.
3. Appendix A to the RFT specified the form of the "Formal Instrument of Agreement", which in its terms provided that the RFT, the Specification provided for in the RFT; the AS4305-1996 Conditions of Contract; and the Letter of Acceptance were agreed to comprise the contract between the parties.
4. Section B of the RFT set out the conditions of tendering. In Section B1, headed "INTERPRETATION", the following terms were defined: "Conditions of Contract" means the Contract in Section C and AS4305-1996; … "Works" means the works to be undertaken as specified in document;
5. Unless specified to the contrary in the Specification, words defined in the RFT were to have "the same corresponding meaning" in the Specification. Section D of the RFT then set out the relevant specifications. Relevantly, Section D2, headed Technical Specifications, included the following (emphasis as per original except where indicated below): D2.1 DESCRIPTION OF WORKS i. The works to be undertaken under this contract is for the supply and spraying of various bituminous materials and associated services as listed in Schedule 2, including seal design. ii. Council will supply pre-coated sealing aggregates. … … D2.5 SPRAYED BITUMINOUS SURFACING i. All sprayed bituminous surfacing works will be undertaken in accordance with the RTA NSW QA Specification R106 Sprayed Bituminous Surfacing (with Cutback Bitumen) as amended, refer Appendix B of this specification and RTA NSW QA Specification Reseal - GI as amended, refer Appendix C of this specification. [as to which see [246] below] … D2.7 REMOVAL OF LOOSE AGGREGATE i. During the progress of work and until the risk of flying stones has passed, the Contractor shall be responsible for the removal of loose sealing aggregate form [sic] the pavement an [sic] shoulders and the sweeping unit shall not leave the site of work during this period. ii. On the day of sealing and where excess aggregate has accumulated, the pavement shall be swept using a vacuum broom in suction mode only. iii. Final sweeping of the pavement and shoulders shall be completed on the day after the incorporation of aggregate. All loose sealing aggregate on the pavement and shoulders shall be removed using a vacuum broom. [my emphasis] iv. The mechanical broom shall also be maintained on-site to supplement the vacuum broom. v. The Contractor shall remove all windrows of loose aggregate. [my emphasis] vi. The Contractor shall pay particular attention to the removal of loose sealing aggregate from intersections, medians and grassed verges. vii. The cost of removal of loose aggregate shall be included in the rate stated in Item 8 - Load, Haul and Spread Aggregate of Schedule 2. viii. Removed aggregate shall be stockpiled at a site nominated by the Superintendent. ix. The Contractor should note, that for quantities up to 9,999 litres in one visit, that Council shall supply a vacuum broom and operator at no charge to the Contractor.
6. Schedule 2 to the RFT was a form headed "Schedule of Prices", item 8 of which bore the description "Load, Haul and Spread Aggregate, including removal of loose aggregate".
7. The RTA QA Specification for Sprayed Bituminous Surfacing (with Cutback Bitumen) formed part of the RFT. Section A3.4.2 was headed "Preparation of Pavement Surface" and provided as follows: Before the application of primer, primerbinder or binder, the pavement surface must be swept by the use of a rotary road broom or suction broom to provide a uniformly clean surface. If necessary, additional sweeping must be done by hand, using stiff bass or similar brooms. Sweeping must extend at least 300 mm beyond each edge of the area to be sprayed. Where sealing work is carried out on localised areas and/or half pavement widths, any remaining loose material immediately adjacent to the swept areas must be removed from the pavement surface. Adherent patches of foreign material must be removed from the surface of the pavement. Raised pavement markers must be masked or removed. Thermoplastic lines must be masked. For the spraying of primer or primerbinder, the pavement surface must be slightly damp. …
8. The conditions of contract contained in the Australian Standards Minor Works Contract Conditions AS4305-1996 relevantly included the following: 1. INTERPRETATION … 'work' includes the provision of materials; 'work under the Contract' means the work which the Contractor is or may be required to execute under the Contract and includes variations, remedial work, constructional plant and temporary works; 'Works' means the whole of the work to be executed in accordance with the Contract, including variations provided for by the Contract, which by the Contract is to be handed over to the Principal. … 8. DAMAGE TO PERSONS AND PROPERTY Insofar as this Clause 8 applies to property, it applies to property other than the work under the Contract. From the time when the Contractor commences work under the Contract, the Contractor shall indemnify the Principal against - (a) loss of or damage to property of the Principal, including existing property in or upon which the work under the Contract is being carried out. The limit of indemnity under this Clause 8(a) shall be the amount stated in Item 14; and (b) claims by any person against the Principal in respect of personal injury or death or loss of or damage to property, arising out of or as a consequence of the carrying out by the Contractor of the work under the Contract, but the Contractor's liability to indemnify the Principal shall be reduced proportionally to the extent that the act or omission of the Principal, the Superintendent or the Principal's other contractors, employees, consultants-or agents contributed to the loss, damage, death or injury. This Clause 8 shall not apply to- (i) the extent that the liability of the Contractor is limited by another provision of the Contract; (ii) exclude any other right of the Principal to be indemnified by the Contractor; (iii) things for the care of which the Contractor is responsible under Clause 7.1; (iv) damage which is the unavoidable result of the construction of the Works in accordance with the Contract; and (v) claims in respect of the right of the Principal to have the work under the Contract carried out. The Principal shall indemnify the Contractor in respect of damage referred to in Clause 8(iv) and claims referred to in Clause 8(v). 9. INSURANCE OF THE WORK UNDER THE CONTRACT Before the Contractor commences work under the Contract, the party named in Item 15 shall effect an insurance policy for an amount not less than the sum stated in Item 16 covering the Contractor's liability under Clause 7. Insurance effected by the Contractor shall be with an insurer and in terms both approved in writing by the Principal, which approvals shall not be unreasonably withheld. The insurance policy shall be in the joint names of the Principal and the Contractor, and shall cover the Principal, the Contractor and all subcontractors employed from time to time in relation to the work under the Contract for their respective rights, interests and liabilities. The policy shall be maintained until the Contractor ceases to be responsible under Clause 7 for the care of anything. 10 PUBLIC LIABILITY INSURANCE Before the Contractor commences work under the Contract, the party named in Item 17 shall effect a public liability policy of insurance in the joint names of the Principal and the Contractor which covers the Principal, the Contractor, the Superintendent and all subcontractors employed from time to time in relation to the work under the Contract for their respective rights and interests, and covers their liabilities to third parties. The policy shall also cover the Contractor's liability to the Principal and the Principal's liability to the Contractor for loss of or damage to property (other than property required to be insured by Clause 9) and the death of or injury to any person (other than liability which is required by law to be insured under a workers compensation policy of insurance). Insurance effected by the Contractor shall be with an insurer and in terms both approved in writing by the Principal, which approvals shall not be unreasonably withheld. The public liability policy of insurance shall be for an amount in respect of any one occurrence not less than the amount stated in Item 18. The policy shall be maintained until the Final Certificate is issued. 11 INSURANCE OF EMPLOYEES Before commencing work under the Contract, the Contractor shall insure against liability for death of or injury to persons employed by the Contractor including liability by statute and at common law. The insurance cover shall be maintained until all work including remedial work is completed. Where permitted by law, the insurance policy or policies shall be extended to indemnify the Principal for the Principal's statutory liability to persons employed by the Contractor. The Contractor shall ensure that all subcontractors have similarly insured their employees. 12. INSURANCE PROVISIONS Before the contractor commences work under the Contract and whenever requested in writing by the other party, a party liable to effect or maintain insurance shall produce evidence to the satisfaction and approval of the other party of the insurance effected and maintained. The effecting of insurance shall not limit the liabilities or obligations of a party under other provisions of the Contract. Any insurance required to be effected by either party in joint names in accordance with the Contract shall include a cross-liability clause in which the insurer agrees to waive all rights of subrogation or action against any of the persons comprising the insured and for the purpose of which the insurer accepts the term 'insured' as applying to each of the persons comprising the insured as if a separate policy of insurance had been issued to each of them (subject always to the overall sum insured not being increased thereby). …
9. In its Further Amended Statement of Cross-Claim, the Council claimed damages for the following alleged breaches of the contract by Boral: 1. breach of cl 8 of AS4305-1996 by reason of Boral's refusal to indemnify the Council against Mr Pillinger's claim (that clause requiring it to indemnify any claim by any person against the Council in respect of personal injury or death of any person or loss or damage to property arising out of or as a consequence of the carrying out by the contractor of the work under the contract) (see [7]-[9]); 2. breach of cl 10 of AS4305-1996 by reason of Boral's failure to effect a policy of insurance covering the Council for its liabilities to third parties (see [10]-[12]); and 3. breaches of cll D2.7(i), (ii), (iii) and (v) of the agreement by reason of Boral's failure: to remove all loose sealing aggregate from the pavement and shoulders; to sweep the pavement on the day of sealing using a vacuum broom in suction mode only; sweep the pavement and shoulders on the day after sealing using a vacuum broom; and to remove all windrows of loose aggregate (see [13]-[14]).
10. Boral, in its further amended defence to cross-claim, pleaded that the Council was estopped from asserting that cl D2.7 formed part of the contract or from relying on it (either at all or insofar as it required the removal of aggregate by a vacuum broom). In essence, it was alleged that there was a conventional estoppel arising from a course of conduct whereby the Council would not require Boral to remove aggregate from the road shoulder whether by means of vacuum suction broom or otherwise. Further or in the alternative it was alleged that the Council had represented to Boral that it would not rely on cl D2.7.

Clause 10

1. As indicated earlier, the only contractual count on which Boral was found liable was the claim that it was in breach of contract for failing to take out an insurance policy that complied with cl 10 of the contract. His Honour accepted the submission by the Council that Boral's construction (i.e., that cl 10 only required Boral to insure for liability the subject of its indemnity in cl 8, namely for liability arising as a consequence of its performance of work under the contract) made no commercial sense ([172]-[173]).
2. His Honour considered that there were a number of aspects of the clause, construed as part of the contract as a whole, that supported the Council's construction of the clause, namely that: there was nothing in cl 10 to suggest that the reference to "for their respective rights and interests" of the various parties was to be interpreted as referring to the limited indemnity in cl 8 ([174]); cl 10 did not have any explicit structural limitation (unlike cl 8) ([175]); cl 10 (unlike cl 9) did not refer to cl 8 ([176]); cl 10 was followed by two general insurance provisions ([177]); and that the reading for which Boral contends would render the protection by way of insurance nugatory ([178]). The last of those submissions his Honour accepted as "generally correct" in that if Boral's construction were to be correct then the only circumstance in which cl 10 would be of any advantage to the Council would be if Boral were impecunious; and that would be an odd reading of such a contract ([178]).
3. Boral places weight on the words, in cl 10, "for their respective rights and interests" as leading to the construction for which it contends. It argues that the commercial purpose of cl 10 was to require it to procure a policy of insurance that indemnified the Council for the Council's liability to third parties arising under the spray sealing contract; not for all Council's liabilities arising from the works.
4. Clause 10 is not in its terms ambiguous. It requires Boral (having provided an indemnity for claims "arising out of or as a consequence of the carrying out by [Boral] of the works under the Contract" in cl 8; and having agreed under cl 9 that an insurance policy be effected for what was referred to in the header as "insurance under the contract") also to effect a public liability insurance policy. That policy was to be in the joint names of the Council and Boral and was to cover each of the Council and Boral as well as the superintendent (whose work was not the subject of the indemnity in cl 8) and "all subcontractors employed from time to time in relation to the work under the contract". The words "in relation to the work under the contract" must form part of the description of the subcontractors (whose work is also not the subject of the indemnity in cl 8) otherwise the words "from time to time employed" have potentially a broader operation than for the contract works. The words do not qualify the description of the other entities in the clause.
5. The critical words follow in the two phrases "for their respective rights and interests" and "covers their liability to third parties". The first phrase must mean that Boral is required to arrange insurance for the rights and interests of, relevantly, both it and the Council. The Council's rights and interests presumably include its interest in the non-negligent completion of the work. The second phrase must mean that the insurance policy is not only "for" their respective rights and interests but also one which covers "their" (i.e., their respective) liabilities to third parties.
6. The Council would accept, as I understand its position in argument to have been, that cl 10 does not require Boral to arrange public liability insurance to cover potential liabilities the Council may have outside the scope of the work to be performed under the contract (such as liability, say, for negligent design of the road works) but it argues that the works provided for under the contract (see the description in cl D2.7(i)) include the removal of loose aggregate (not limited to its removal from the finished road surface alone).
7. Insofar as its liability to Mr Pillinger arises as a consequence of the failure of either the Council or Boral to remove loose aggregate from the eastern side of the road, or the antecedent push in of the loose aggregate to the side of the road and its subsequent feathering out between the road and the table drain, the Council's contention is that this is a liability against which Boral was obliged to insure.
8. Clause 8 makes clear that it does not exclude any other right of the Council to be indemnified by Boral (cl 8(ii)) and does not suggest that Boral's other obligations or the Council's right to an indemnity of some kind should be restricted to the subject matter of that clause.
9. Unlike cl 8, cl 10 does not qualify "liabilities to third parties" by reference to such liabilities "arising out of or as a consequence of" the carrying out by Boral of the work under the contract.
10. The difficulty, as I see it, for Boral's argument is that it requires one to read into cl 10 words similar to those used in cl 8 (i.e., "arising out of … "). Moreover, even if the obligation to insure is limited to liability arising out of or as a consequence of the spray sealing works, as Boral contends, the contract makes provision for the removal of loose aggregate as part of those works. If the manner in which it was pushed across to the side of the road (and left in a windrow or feathered windrow) gives rise to a liability on the part of the Council to someone injured when that material is later washed back onto the road (as is the case here), then that is a liability that in my opinion arises as a consequence of Boral's performance of work under the spray sealing contract.
11. The Council's contribution to that outcome (whether by feathering out but not removing the windrow when it later came to complete the works or by acquiescing in the method adopted by Boral in carrying out the works or even by failing to supervise the works properly) does not assist Boral. It had an obligation to effect an insurance policy for the benefit of the Council (and for its own benefit). There is no warrant for narrowing the scope of the obligation to one relating only to insure third party liabilities not caused in part by the Council's own conduct.
12. In essence, as I see it, cl 10 required Boral to put in place third party liability insurance for the benefit of the Council on which it could claim if a third party suffered injury as a consequence of the resealing works whether or not that was caused in part by its own negligence. The contract clearly contemplated at least some involvement by the Council in those works (for example, it was required to supply aggregate for those works). In the context of the road sealing works as a whole the construction for which the Council contends is not one that is commercially unrealistic.
13. His Honour did not err in the construction of cl 10. The finding of breach by Boral on this aspect should thus stand.

Clause 8 (ground 5 of the Council's amended notice of contention)

1. His Honour accepted (at [166]) the submission of Boral that cl 8 of the contract did not operate to require Boral to indemnify the Council where the Council had itself been negligent and that it only applied where the negligence of Boral had led to liability on the part of the Council. This finding was the subject of ground 5 of the Council's amended notice of contention. However, in the course of oral submissions, the Council advised the Court that it did not seek an indemnity independently of the cl 10 question. In those circumstances it is not necessary to deal with this ground of contention.

Clause D2.7 (grounds 1-4 of the Council's amended notice of contention)

1. His Honour construed cl D2.7 as speaking sequentially of what Boral was required to do during the progress of the works (see [155]): first as to what it must do during the progress of the works (sub-cl (i)); then on the day of sealing (sub-cl (ii)); then the final sweeping the day after the incorporation of the aggregate (sub-cll (iii) and (iv)) at which time the pavement and shoulders must be cleaned; then the removal of windrows of loose aggregate in what his Honour inferred to be a different location (sub-cl (v)); and finally, inter alia, where aggregate should be stockpiled (sub cll (vi) and (viii)) ([156] - [157]).
2. His Honour held that no reliance could be placed on the fact that Boral did not use a vacuum broom since the Council had failed (as required by (ix)) to supply one and could not rely on its own breach ([152]). Hence his Honour did not consider the conventional estoppel claim in that regard ([153]).
3. His Honour found there was no breach of cl D2.7(iii) on the basis that the reference to "shoulders" in that sub-clause was to a different area than that in which the windrow was placed ([158]) and that, to the extent Boral did not comply with sub-cl (iii), that was not the cause of the liability of the Council ([159]).
4. As to sub-cl (v) his Honour accepted that Boral did not remove the windrow of loose aggregate (i.e., it did not feather it) but said that it was not the presence of the windrow that was central to the accident, rather, it was the presence of the materials, not formed up into a windrow, to the east of the road and the west of the drain, that was central ([161]).
5. The Council contends that his Honour erred in construing cl D2.7(iii) and (v) and in failing to find that Boral was in breach of those clauses, and failing to find that Boral's breach of cl D2.7(v) was not causative of loss and damage to the Council.
6. The Council maintains that breach by Boral of cl D2.7 (iii) was established by the evidence of Mr McDonnell to the effect that Boral never sought to comply with the clause. It refers to Mr Matthews' evidence that if the vacuum broom was unavailable Boral had to pick it up and sweep it by hand. It maintains that the obligation to remove all loose sealing aggregate attached to Boral whether there was a vacuum broom or not and that all that the failure of the Council to supply the vacuum broom meant, on his Honour's findings, was that failure by Boral to use a vacuum broom was not itself a breach by Boral of the contract.
7. Further it argues that if there was a windrow containing aggregate then Boral was in breach of the absolute requirement imposed by D 2.7 (v).
8. Boral maintains that his Honour's construction of cl D2.7 was correct with the exception of the reasoning in [161] (where his Honour said that, strictly speaking, Boral did not comply with sub-cl (v)).
9. It maintains that cl D2.7 was concerned with the removal of aggregate which is excess to normal distribution, not the removal of aggregate which resulted from the normal performance of the works (i.e., that was swept by rotary broom to the side of the road to form the windrow). It points to the lack of complaint by Mr Matthews as consistent with Boral having done what was required by the contract. Mr Matthews accepted that, with his experience and given his role as supervisor, if he had noticed anything out of the ordinary after the bitumen re-sealing works were completed he would have called Boral immediately and could not recall having suggested to them that the job had been carried out other than perfectly satisfactorily. His usual practice was to walk over certain parts of the site to see that it had been swept properly.
10. Boral also takes issue with the suggestion that Mr McDonnell's evidence established a breach of sub-cl (iii). It points to the statement of Mr McDonnell and to the evidence given by Mr McPherson as to the method of road building. It is further submitted that the cross-examination of Mr McDonnell in this respect was insufficiently precise to be of any value.
11. Boral contends that it carried out the work as it had done for many years before, to the satisfaction of Council, such that cl D2.7 had no role to play as the parties did not act by reference to it. It raises in this context its claim of estoppel by convention, referring to the evidence given by Mr McPherson and Mr McDonnell as to the usual practice when work was undertaken on rural roads. In summary, Mr McPherson said that a vacuum broom was only used in town precincts where there was a kerb and gutter and was never used on rural roads because it would tend to strip newly laid aggregate; it could not be used on shoulders and could never be used in the precinct of a table drain. Mr McDonnell gave evidence to similar effect as to the use of vacuum brooms only where there were kerbs and gutters.
12. Mr Matthews' evidence was to the effect that he accepted that the situation was that if the job was ready and in a state where the aggregate should be collected, the practice was for Boral to notify someone like him and that he would arrange for the vacuum sweeper to sweep up the excess aggregate. He accepted that it was never the practice for Boral to request Council to supply vacuum brooms on rural road which did not have a gutter and said it was not in his anticipation that for new works where the job was being done on the road where the accident happened, that Boral would ever use the vacuum broom because using the vacuum broom on new works would have the risk of dislodging the newly laid aggregate and bitumen. He agreed that he had expected the work to be done the way it had been done in the past by Boral. He also said that, because of the dust, a vacuum broom would not be the sort of device that an operator could use properly on the shoulder of the rural road.
13. Boral relies on the fact that no evidence was adduced by the Council that it ever insisted on its strict legal rights under the contract.
14. In my opinion, his Honour did not err in concluding in effect that the Council could not rely on any breach of cl D2.7(iii) because it had not supplied a vacuum broom. The clause does not, as the Council suggests, simply require removal of loose sealing aggregate on pavement and shoulders, it requires that it be done in a specific way. Boral was not able to comply with that requirement due to the non-supply of the vacuum broom. That it was not supplied is unsurprising, given the evidence that it could not have been used (or for that matter used safely) on a rural road near a table drain. A conventional estoppel would in my opinion have applied (given the evidence to which Boral has referred) had it been necessary to consider this issue.
15. As to the alleged breach of sub-cl (v), in its terms what Boral was required to do was to remove "all windrows of loose aggregate". Where there is room for confusion is whether, in that clause, "windrow" includes a feathered out windrow. The evidence of those involved in the works (both Boral and the Council) as to the procedure adopted in such roadworks suggests that the parties did not understand Boral to have an obligation to remove material that remained in place following the feathering out of a windrow of loose aggregate. Again, on the evidence Boral in my view would have established a conventional estoppel on that aspect of the works. In particular, Mr Matthews' lack of any complaint as to the performance of the works by Boral certainly suggests that he did not consider that Boral had an obligation to do more than it had done in relation to the works, i.e., to remove the windrow remaining after it swept the road following re-sealing. The evidence also supports the conclusion that it was not possible for Boral to do so until after the guideposts were installed.
16. Therefore, while I do not read "all windrows of loose aggregate" as necessarily limited to "formed-up" windrows, I am not persuaded that the Council could, consistent with its past practice and its conduct on the present occasion, complain about the fact that Boral had left a formed up windrow on the side of the road at the conclusion of its works.
17. Accordingly, I am not persuaded that the Council has made out the grounds raised by its notice of contention.

Mr Pillinger's notice of contention

1. Mr Pillinger's notice of contention addresses the possibility that his Honour's conclusions as to the reasonable precaution to be taken to avoid the risk of harm and as to breach do not amount to a finding that the windrow should have been removed. In that event it submits that his Honour ought to have found expressly that the failure to remove the windrow was a breach.
2. In light of the conclusion I have reached on the grounds of appeal and cross-appeal it is not necessary to consider the notice of contention which, with respect, seems to me little more than a matter of semantics.

Orders

1. For the above reasons I propose the following orders: 1. Dismiss the appeal with costs. 2. Dismiss the second respondent's cross appeal with costs. 3. Allow the first respondent's cross appeal and set aside the finding made against him of contributory negligence. 4. Order the appellant and the second respondent to pay to the first respondent the sum by which the damages awarded at first instance were reduced for his contributory negligence (and interest thereon at Court rates from the date of the judgment at first instance). 5. Order the appellant and second respondent jointly and severally to pay the first respondent's costs of these proceedings. 6. Order the appellant to pay the second respondent's costs of the appellant's appeal in relation to the issue raised by grounds 24 and 25 of the appellant's notice of appeal but otherwise as between the appellant and the second respondent there be no order as to costs.
2. EMMETT JA: This appeal is concerned with an accident suffered by the first respondent, Mr David Pillinger (Mr Pillinger), when he lost control of the motorcycle he was riding on Blue Knob Road, a public road north of Nimbin, NSW. As a result of the accident, Mr Pillinger suffered serious injuries. He sued the second respondent, Lismore City Council (the Council) and the appellant, Bitupave Ltd trading as Boral Asphalt (Boral). A judge of the Common Law Division (the primary judge) found that both Boral and the Council were negligent and that their negligence caused the accident. His Honour also found that Mr Pillinger was contributorily negligent to the extent of 10% and reduced the damages to which he would otherwise have been entitled. Judgment was entered in favour of Mr Pillinger against Boral and the Council in the sum of $1,170,000. The primary judge apportioned responsibility to Boral as to 60% and to the Council as to 40%. [1]
3. However, the primary judge found that Boral was in breach of a contractual obligation to the Council to take out an insurance policy in respect of the Council's liability. Accordingly, his Honour awarded damages to the Council against Boral in the amount of the judgment entered against the Council, effectively giving the Council an indemnity in respect of its liability to Mr Pillinger.
4. Boral has now appealed from the orders made by the primary judge. The Council has also appealed by way of cross-appeal and also filed notice of contention that Boral was in breach of a different contractual obligation to it, a contention that his Honour rejected. Mr Pillinger has also cross-appealed against the finding of contributory negligence.

Liability of the Council and Boral to Mr Pillinger

1. Mr Pillinger's accident occurred on 22 January 2006, some six weeks after the Council had carried out road works on the road in question. The road works involved the Council reconstructing the road. The final step in the reconstruction was the paving of the roadway with bitumen and spreading aggregate over the bitumen. That final stage was carried out by Boral under a contract with the Council. In the days leading up to Mr Pillinger's accident, there was very heavy rain in the relevant area.
2. Running parallel to the roadway in question was a table drain. There was no advanced system of kerbing and guttering and the roadway sloped down to the west. The primary judge found that, after the completion of the road works by the Council and Boral, the Council and Boral left a windrow (being a row or line of material that has been raked or swept together) containing road base and aggregate on the eastern, or high side, of the roadway and that the Council "feathered" the windrow by flattening it out. [2] The flattened windrow, consisting of road base and aggregate, was to the west of the table drain. His Honour found that the table drain overflowed as a result of the combined effect of the volume of rain water and a blockage by organic material, with the result that a torrent of water crossed the roadway in a general south-westerly direction carrying with it, in a swathe across the roadway, brown dirt, brown road base, and blue-grey aggregate (the Swathe Material), all of which had been lying on the eastern side of the roadway, to the west of the table drain. [3] In essence, his Honour concluded that the Council and Boral negligently left the Swathe Material on the high side of the roadway and that Mr Pillinger's motorcycle lost traction when he rode through the Swathe Material, causing him to lose control of the motorcycle.
3. The primary judge held that a reasonable person in the position of Boral would have foreseen that its conduct in leaving the feathered windrow to the eastern side of the road and to the west of the table drain in the particular circumstances involved a risk that road base or aggregate, or both, could wash or otherwise travel across the roadway, thereby reducing the available friction on the road and endangering motorcyclists. [4] His Honour therefore concluded that a reasonable person in the position of Boral would not have left a windrow to the east in the particular circumstances of the case, namely, the fact that it was a rural roadway, the area was treed, there was a table drain to the east, the roadway sloped to the west, there was no kerb or gutter, and the area experiences heavy rain in summer. [5] Rather, his Honour held, a reasonable person in the position of Boral would have formed a windrow to the west of the roadway only. [6]
4. The primary judge held that a reasonable person in the position of the Council in this particular case would have taken steps to ensure that a windrow of road base was not left on the high side of the roadway. [7] His Honour concluded that the Council breached its duty to Mr Pillinger by leaving the quantity of road base on the eastern side, which was washed onto the road. [8] His Honour held that the presence of the road base in the Swathe Material, consisting of crushed rocks, was a material contribution to Mr Pillinger's loss of control. [9] His Honour was therefore satisfied that the Council was negligent in leaving road base to the east of the roadway. [10]
5. I have had the advantage of reading in draft form the proposed reasons of Ward JA. I agree with her Honour, for the reasons proposed, that the primary judge did not err in the findings that he made as to the cause of Mr Pillinger's accident and in concluding that each of the Council and Boral breached the duty of care that it owed to users of the roadway such as Mr Pillinger. I also agree with her Honour's conclusions on the question of contributory negligence. I agree with the orders proposed by her Honour in relation to the aspects of the appeals and cross-appeals that relate to the liability of Boral and the Council to Mr Pillinger.

The Council's Claim against Boral

1. The Council sued Boral for breach of the contract under which Boral carried out the final stage of the work on the roadway (the Contract). The Contract was made after the Council accepted a tender submitted by Boral in response to a request for tender published by the Council. Before dealing with the Council's claims, it is necessary to say something about the relevant provisions of the Contract.
2. In June 2005, the Council published an undated Request for Tender, the closing date for which was 21 June 2005 (the Tender Request). The Tender Request invited tenders for the provision of "sprayed bituminous surfacing works to 30 June 2006" and included the following: Section A - Preamble Section B - Conditions of Tendering Section C - Conditions of Contract Section D1 - General Specifications Section D2 - Technical Specifications Schedules - Schedule 1 to Schedule 12 Appendices - Appendix A to Appendix D
3. Section A stated that the conditions of contract were those contained in Australian Standard 4305-1996 (AS4305) and the special conditions of contract set out in Section C. Section C specified that the conditions of contract were to be read in conjunction with AS4305. Under Section C, the Council was to appoint the successful tenderer to provide the works as specified in Section D, subject to and in accordance with the provisions of the Contract.
4. Section D1 described the scope of works as "the sprayed bituminous surfacing works for the period to 30 June 2006". Section D2 described the works to be undertaken as follows: the supply and spraying of various bituminous materials and associated surfaces as listed in Schedule 2, including seal design. [emphasis in original] Schedule 2, entitled "Schedule of Prices", specified the following items:
5. Sweeping of Pavement
6. Supply Heat and Spray C170 Bitumen (Quantity Measured at 15C), including Seal Design
7. Supply and Incorporate Flux Oil (Diesel)
8. Supply and Incorporate Cutter Oil (Power Kerosene)
9. Supply and Incorporate Adhesion Agent
10. Recover Longitudinal Line Marking
11. Rolling Aggregate
12. Load, Haul and Spread Aggregate, including removal of loose aggregate
13. Laying and Rolling Geotextile (Geotextile to Be Supplied by Council)
14. Site Establishment Cost to Move Labour & Equipment into Council Area
15. Waiting Time (if applicable).
16. By letter dated 21 June 2005, Boral submitted a tender (the Tender) in response to the Tender Request. Enclosed with the letter was a signed tender for contract in the form of Schedule 1 attached to the Tender Request. The Tender, which was dated 20 June 2005, described the work under the Contract as "the provision of sprayed bituminous surfacing works for the period to June 30th, 2006". Schedule 1 provided as follows: [Boral hereby tenders] to undertake carry out and complete the work under the Contract briefly described above and to supply all materials and labour and everything of every kind respectively named shown described referred to or implied in the Conditions of Contract and the Specification of the work under for the sums specified in Schedule 2 and to bring the Works to practical completion within the period or by the date specified in the Annexure to the General Conditions of Contract referred to above. The letter of 21 June 2005 also attached a completed Schedule 2 specifying a rate for each of the 11 items. Schedule 2 was also dated 20 June 2005. On 26 July 2005, the Council wrote to Boral advising that the Council had accepted the Tender as of 12 July 2005.
17. In its claim against Boral, the Council relies on cl D2.7 of Section D2, dealing with "Removal of Loose Aggregate", which relevantly provided as follows: i. During the progress of work and until the risk of flying stones has passed, the Contractor shall be responsible for the removal of loose sealing aggregate form [sic; scilicet from] the pavement an [sic; scilicet and] shoulders and the sweeping unit shall not leave the site of work during this period. ii. On the day of sealing and where excess aggregate has accumulated, the pavement shall be swept using a vacuum broom in suction mode only. iii. Final sweeping of the pavement and shoulders shall be completed on the day after the incorporation of aggregate. All loose sealing aggregate on the pavement and shoulders shall be removed using a vacuum broom. iv. A mechanical broom shall also be maintained on-site to supplement the vacuum broom. v. The Contractor shall remove all windrows of loose aggregate. vi. The Contractor shall pay particular attention to the removal of loose sealing aggregate from intersections, medians and grassed verges. vii. The cost of removal of loose aggregate shall be included in the rate stated in Item 8 - Load, Haul and Spread Aggregate of Schedule 2. viii. Removed aggregate shall be stockpiled at a site nominated by the Superintendent. ix. The Contractor should note, that for quantities up to 9,999 litres in one visit, that Council shall supply a vacuum broom and operator at no charge to the Contractor. [emphasis in original]
18. AS4305 is a standard for "Minor Works Contract Conditions" and consists of 32 clauses and an annexure. The annexure contains blank spaces for the completion of details applicable to a particular contract. Section C of the Tender Request included a copy of the annexure to AS4305 in which the details relevant to any contract arising from acceptance of a tender were specified, apart from the name and address of "the Contractor".
19. In its claim against Boral, the Council also relies on cl 10 of AS4305. Clause 10 provides: Before the Contractor commences work under the Contract, the party named in Item 17 shall effect a public liability policy of insurance in the joint names of the Principal and the Contractor which covers the Principal, the Contractor, the Superintendent and all subcontractors employed from time to time in relation to the work under the Contract for their respective rights and interests, and covers their liabilities to third parties. The policy shall also cover the Contractor's liability to the Principal and the Principal's liability to the Contractor for loss of or damage to property (other than property required to be insured by Clause 9) and the death of or injury to any person (other than liability which is required by law to be insured under a workers compensation policy of insurance). Insurance effected by the Contractor shall be with an insurer and in terms both approved in writing by the Principal, which approvals shall not be unreasonably withheld. The public liability policy of insurance shall be for an amount in respect of any one occurrence not less than the amount stated in Item 18. The policy shall be maintained until the Final Certificate is issued.
20. Item 18 in the annexure included in the Tender Request states a sum of $10 million. Item 17 specifies the "Contractor", namely, Boral.

Liability under Clause 10

1. Clause D1.3(i) provides that AS4305 forms part of the Contract, although it is not included in the document. Clause D2.5 provides that all sprayed bituminous surfacing works will be undertaken in accordance with the "RTA NSW QA Specification R106 Sprayed Bituminous Surfacing (with Cutback Bitumen) as amended" (R106). A copy of R106 is contained in Appendix B of the Tender Request. Clause 1.1 of R106 provides that the Contractor must be responsible for the design, supply of all materials and the application of any or all of specified types of sprayed bituminous surfacing as required under the contract.
2. Clause 4 of R106 deals with "Process Control". Clause 4.5, which deals with "Sweeping and Loose Aggregate Removal", provides that, after final sweeping and prior to the work being opened to traffic at the pre-existing signposted speed, the number of loose aggregate particles must not exceed the values specified.
3. Clause 1.4 of R106 relevantly provides that the minimum process standards, details of the plant and equipment and methods to be used for sprayed bituminous surfacing must be as specified in Annexure R106/3. Annexure R106/3 deals with "Minimum Process Standards". Clause A3.4 of Annexure R106/3 deals with "Condition for Commencement". Clause A3.4.2, which deals with "Preparation of Pavement Surface", provides as follows: Before the application of primer, primerbinder or binder, the pavement surface must be swept by the use of a rotary road broom or suction broom to provide a uniformly clean surface. If necessary, additional sweeping must be done by hand, using stiff bass or similar brooms. Sweeping must extend at least 300 mm beyond each edge of the area to be sprayed. Where sealing work is carried out on localised areas and/or half pavement widths, any remaining loose material immediately adjacent to the swept areas must be removed from the pavement surface. Adherent patches of foreign material must be removed from the surface of the pavement. Raised pavement markers must be masked or removed. Thermoplastic lines must be masked.
4. The Council contends that the provisions of sub-cl A3.4.2 indicate that the work carried out by the Council, for which the primary judge found the Council liable, was an integral part of the work that is the subject of the Contract. Therefore, the Council says, the policy contemplated by cl 10 of AS4305, required to be effected by Boral, must include insurance cover for the Council's liability to Mr Pillinger.
5. Boral contends that cl 10 should be read in a limited way having regard to the limited indemnity provided by cl 8. Clause 8 of AS4305 relevantly provides as follows: From the time when the Contractor commences work under the Contract, the Contractor shall indemnify the Principal against - (a) loss of or damage to property of the Principal, including existing property in or upon which the work under the Contract is being carried out. The limit to the indemnity under this Clause 8(a) shall be the amount stated in Item 14 [being $10 million]; and (b) claims by any person against the Principal in respect of personal injury or death or loss of or damage to property, arising out of or as a consequence of the carrying out by the Contractor of the work under the Contract, but the Contractor's liability to indemnify the Principal shall be reduced proportionally to the extent that the act or omission of the Principal, the Superintendent or the Principal's other contractors, employees, consultants or agents contributed to the loss, damage, death or injury. This Clause 8 shall not apply to - […] (iv) damage which is the unavoidable result of the construction of the Works in accordance with the Contract, and (v) claims in respect of the right of the Principal to have the work under the Contract carried out. The Principal shall indemnify the Contractor in respect of damage referred to in Clause 8(iv) and claims referred to in Clause 8(v) [emphasis added]
6. The primary judge considered that there was nothing in cl 10 to suggest that the reference to rights and interests of various parties was to be interpreted as referring to the limited indemnity in cl 8. [11] His Honour considered that Boral breached the Contract, in that it did not effect a policy of public liability insurance that covered the liabilities of the Council to Mr Pillinger. His Honour concluded that the measure of damages in light of that breach was the liability of the Council to Mr Pillinger in the tort of negligence. Therefore, his Honour held, the Council was entitled to an indemnity from Boral for the whole of its liability to Mr Pillinger. [12]
7. The primary judge accepted the Council's contention that the treatment of cl 8 of AS4305 should be contrasted with the treatment of cl 9, which deals with the insurance of the work under the Contract. Clause 9 provides that the party named in Item 15 is to effect an insurance policy for an amount not less than the sum stated in Item 16, "covering the Contractor's liability under Clause 7". Clause 7 deals with "care of the work and reinstatement of damage". The completed Annexure showed "N/A" in Items 15 and 16. The primary judge observed that, although cl 9 explicitly refers to cl 7, cl 10 does not refer explicitly to cl 8; the significance of that former reference, his Honour said, is that it argues against inferring an implicit reference in cl 10 to cl 8. [13]
8. Clause 10 must be read in the context of the whole of the Contract, of which it forms part. It is relevant that cl 10 omits the words "arising out of or as a consequence of the carrying out by the Contractor of the work under the Contract" that are included in cl 8. Moreover, cl 10 does not contain the proportional reduction contemplated by cl 8 to the extent of any contribution by the Council to, for example, the injury about which a claim by a third party is made. Further, unlike cl 8, cl 10 covers the liability of the Superintendent and of "all subcontractors employed from time to time in relation to the work under the Contract". It follows that cl 10 necessarily has, on its terms, a broader operation than cl 8.
9. However, that does not lead to the conclusion that the liability of the Council against which an insurance policy is contemplated by cl 10 is limitless. Thus, cl 10 should not be construed or understood as imposing upon Boral, as the Contractor, an obligation to take out insurance cover for the Council, as Principal, for any liability that the Council might have for the death of or injury to any person. I do not consider that cl 10 contemplates that Boral should insure against liability incurred by the Council to which liability Boral made no contribution whatsoever, such as where, for example, the Council had negligently designed the road works and a third party consequently suffered injury. However, that is not the present case because the primary judge found that both Boral and the Council contributed to the injury suffered by Mr Pillinger.
10. Although I initially had some reservations, I consider, on balance, that the present facts fall within the scope of cl 10. That is particularly so in the context of a contract that contemplated the involvement of both Boral and the Council in the completion of the works provided for in that contract. Even if cl 10 be understood as referring to any liability arising out of or as a consequence of the performance by Boral of its obligations as Contractor under the Contract (that is, the same limitation as contained in cl 8), in the present case both Boral and the Council contributed to the loss suffered by Mr Pillinger. Thus, the Council's liability does arise, at least partly, out of the performance by Boral of its obligations under the Contract. I agree with Ward JA that the primary judge did not err in his conclusion as to the effect of cl 10. I agree with the orders proposed by her Honour in relation to Boral's appeal from the orders made in respect of the Council's cross-claim against it.

Liability under cl D2.7

1. The Council submitted to the primary judge that Boral did not comply with cl D2.7 since, as his Honour found, there was road base and aggregate to the east of the roadway. The Council placed particular reliance on cl D2.7(iii). The Council contended that, if Mr Pillinger succeeded against the Council, that was because there was loose sealing aggregate on the pavement and shoulders because Boral had failed to use a vacuum broom in accordance with that clause. His Honour found that there was no dispute that the Council had never provided a vacuum broom as required in clause D2.7(ix). His Honour therefore found that the Council could not rely on an agreement on the part of Boral that it would use a vacuum broom to be supplied by the Council in circumstances where the Council did not provide that very item. [14] I agree with Ward JA that there was no error in that conclusion.
2. The Council also contends that Boral failed to perform the obligation imposed by cl D2.7(v) to remove all windrows of loose aggregate. Boral's response is that the liability of the Council, on the basis of the findings made by the primary judge, is not because of the presence of windrows of loose aggregate. I agree with the conclusion reached by Ward JA in relation to cl D2.7(v).

Conclusion on the Council's Claim against Boral

1. I agree with the orders proposed by Ward JA.
2. GLEESON JA: I agree with Ward JA.

Boral's Notice of Appeal In Boral's notice of appeal it is contended that his Honour: 1. erred in finding that Boral breached any relevant duty of care owed to Mr Pillinger; 2. erred in failing adequately or at all to consider the matters arising under ss 5B and 5C of the Civil Liability Act, 2002 (NSW); 3. erred in finding; 1. that the risk of harm was foreseeable to Boral; and 2. that the stated risk of harm was not insignificant; 1. erred in failing to find what precautions a reasonable person in the position of Boral would have taken; 2. erred in failing to find how or why any such precautions as he found Boral ought to have taken could have been taken in the circumstances of the case; 3. failed properly to consider the matters required pursuant to s 5B(2) of the Civil Liability Act, 2002 (NSW); in particular the probability that harm would occur if precautions were not taken, and the burden of taking those precautions; 4. failed to provide sufficient reasons for any of the liability findings made against Boral; 5. in making findings against Boral, used either impermissible hindsight reasoning or speculation or both; 6. did not have a basis in the evidence, or alternatively insufficient evidence, upon which to make a finding that the swathe across the road contained aggregate from Boral's resealing works rather than aggregate that found its way to the side of the road through the ordinary movement of traffic (for which his Honour expressly found Boral not liable); 7. erred in failing to find that the evidence of Ms Stevenson was in all the circumstances the most objective and, therefore, reliable evidence; 8. erred in failing to accord sufficient weight to the evidence of Ms Stevenson; 9. should have found that, to the extent that the swathe contained aggregate, it could not be said that the aggregate emanated from work carried out by Boral; 10. impermissibly used his own opinions to reach conclusions about matters which required expert evidence relating to matters concerning road building and drainage of roads in rural New South Wales; 11. erred in ignoring or otherwise not dealing with the evidence of the experts, particularly Mr Jackson Clark, relating to the road building aspects of the case; 12. erred in his finding as to causation; 13. erred in failing to find that there were several other unrelated, but equally probable, causes of Mr Pillinger's injury; 14. erred in failing to find that Mr Pillinger had failed by evidence to prove each of the essential elements of is pleaded cause of action; 15. erred in finding that any breach of duty by Boral was a necessary condition of the occurrence of harm to Mr Pillinger and that it was appropriate for the scope of Boral's liability, as found to exist, to extend to the harm suffered by him, as required by s 5D of the Civil Liability Act, 2002 (NSW); 16. erred in his finding of the amount of contributory negligence; 17. should have found that Mr Pillinger was travelling at an excessive speed and in excess of 80kp/h based on the expert evidence; 18. erred in ignoring the expert evidence as to the probable speed of Mr Pillinger's motorcycle at the time he lost control of it; 19. erred in apportioning liability as against Boral at 60%; 20. failed to give proper reasons as to his finding in respect of the apportionment found in the case; 21. in the interpretation of the insurance clause (clause 10) of the contract; and 22. erred in finding that Boral breached that clause with respect to any obligation to (a) take out public liability insurance, and (b) that the clause indemnified the Council with respect to its own negligence to Mr Pillinger.

The Council's Cross-Appeal The Council's cross-appeal raises the following grounds.

Duty 1. The primary judge erred in identifying the nature and scope of the duty of care owed by the Council to Mr Pillinger in the circumstances of this case. 2. In purporting to identify the nature and scope of the duty of care owed by the Council to Mr Pillinger, the primary judge failed to take into account: 1. the nature of the contractual relationship and allocation of work as between the Council and Boral; 2. the range of activities, duties and responsibilities of the Council as a public authority; and 3. the matters in s 42(a)-(c) of the Civil Liability Act 2002.

Breach (3) The primary judge erred in finding that the Council was in breach of a duty of care owed to Mr Pillinger. (4) The primary judge erred in making no finding, or providing no reasons for any finding, as to whether the relevant risk of harm identified in [91] of the reasons for judgment below was "foreseeable" to the Council for the purposes of s 5B(1)(a) of the Civil Liability Act 2002. (5) The primary judge erred in making no finding, or providing no reasons for any finding, as to whether the relevant risk of harm identified in [91] of the reasons for judgment below was "not insignificant" from the perspective of the Council for the purposes of s 5B(1)(b) of the Civil Liability Act 2002. (6) The primary judge erred in finding that when the Council's completed preparation of the roadbase, there was on the eastern side of the road a windrow comprised of roadbase. (7) Alternatively, the primary judge erred in finding that when the Council completed preparation of the roadbase, there was on the eastern side of the road an excess of material comprised of roadbase. (8) The primary judge erred in, and provided no adequate reasons for, rejecting the evidence of Mr Matthews as to how the Council conducted its part of the road works. (9) The primary judge erred in failing to identify what precaution or precautions, in all the circumstances, a reasonable person on the Council's position owing the duty of care owed by the Council to Mr Pillinger, and having regard to the contractual relationship and the allocation of work between the Council and Boral, would have done to: (a) "ensure that [after its works] there was only one large windrow to the western side of the road" (see [116] of reasons for judgment); or (b) "ensure that a windrow of roadbase was not left to the high side of the road" (see [118] of reasons for judgment), for the purposes of s 5B(1)(c). (10) The primary judge erred in failing to consider, in respect of the precaution or precautions in [9] above, the matters required under ss 5B(2)(a)-(c), 5C(a) and 42(a)-(c) of the Civil Liability Act 2002. (11) The primary judge finding that the Council breached its duty of care to Mr Pillinger is not consistent with the primary judge's findings at [160]-[162] of the reasons for judgment.

Causation (12) The primary judge erred in finding that any breach of duty by the Council was a necessary condition of Mr Pillinger's accident, for the purposes of s 5D(1)(a) of the Civil Liability Act 2002. (13) The Primary judge erred in, and gave no adequate reasons for, implicitly finding that had the Council undertaken the manoeuvre described in [103] of the reasons for judgment during the laying of roadbase, no roadbase would have remained on the eastern side of the road. (14) The primary judge erred in finding that at the completion of all the road works by the Council and Boral, any windrow or material on the eastern side of the road comprised roadbase left by the Council. (15) The primary judge erred in finding that at the time of Mr Pillinger's accident there was a substantial amount of loose gravel on the road. (16) The primary judge erred in, and provided no adequate reasons for, rejecting the evidence of Ms Stevenson as to the condition of the road at the time the accident or in the time between the completion of work and the accident. (17) The primary judge did not have any basis in the evidence, or a sufficient basis, to find that a swathe across the road contained roadbase left by the Council transported by the process set out in [62]-[63] of the reasons for judgment, in that: (a) the primary judge did not apply expert evidence before him; (b) the primary judge did not identify what expert evidence he applied; (c) if expert evidence was rejected, the primary judge did not provide any reasons as to why; (d) the primary judge did not identify what interferences he drew, or from what evidence; (e) the primary judge used impermissible hindsight reasoning and speculation; (f) in place of expert evidence, the primary judge impermissibly used his own opinions about matters concerning road building and drainage expertise; and (g) the primary judge made no findings as to the impact on any roadbase left by the Council of subsequent road work conducted by Boral. (18) The primary judge's finding as to the content of the swathe across the road is inconsistent with the primary judge's findings at [61] and [160]-[162] of the reasons for judgment.

Contributory Negligence (19) The primary judge erred in his finding as to the extent of contributory negligence of Mr Pillinger. (20) The primary judge erred in finding that Mr Pillinger was travelling at a speed of 80km/h or less. (21) The primary judge erred in rejecting, and failing to provide adequate reasons for rejecting, expert evidence as to the probable speed of Mr Pillinger's motorcycle at the time of the accident.

Apportionment (22) The primary judge erred in apportioning liability as against Boral at 40%. (23) In assessing 40% liability the primary judge failed to take into account, or to take into account adequately: (a) the contractual relationship between the Council and Boral; (b) the allocation of the road works as between the Council and Boral; (c) the sequence in which the road works were conducted; and (d) the different nature and scope of the duty of care owed to Mr Pillinger by each of the Council and Boral.

Council's Notice of Contention The Council in its Amended Notice of Contention seeks to affirm the finding of Boral's liability on the following grounds: (1) The primary judge erred in failing to find that Boral breached clause D 2.7(iii) of the contract between Boral and the Council. (2) The primary judge erred in construing the proper meaning of clause D 2.7(iii) in that: (a) the primary judge misapplied the significance (if any) of the finding that the Council did not supply a vacuum broom to Boral; and (b) the primary judge incorrectly construed clause D 2.7(iii) as applying only to windrows close to the edge of the road paving but still within it. (3) The primary judge erred in construing clause D 2.7(v) in that: (a) the primary judge incorrectly construed clause D 2.7(v) as not requiring Boral to remove all aggregate; and (b) the primary judge's construction of clause D 2.7(v) is inconsistent with his findings at [56], [74], [97], [99] and [110] of the reasons for judgment. (4) The primary judge erred in finding that, despite Boral's breach of clause D 2.7(v), the breach was not causative of loss and damage to the Council. (5) The primary judge erred in failing to find that pursuant to clause 8 of the contract between Boral and the Council, Boral was liable to indemnify the Council in full.

Mr Pillinger's Cross-Appeal (1) His Honour erred in finding the cross appellant guilty of contributory negligence. (2) His Honour should have found the plaintiff was not guilty of contributory negligence. (3) There was no evidence to ground a finding of contributory negligence.

Mr Pillinger's Notice of Contention (1) His Honour erred by not finding that the Council was negligent in not removing the windrow material from the high side of the road after Boral had completed its work. (2) His Honour erred by not finding that Boral was negligent in not removing the windrow material from the high side of the road at the completion of its work.

Endnotes

1. See Pillinger v Lismore City Council [2014] NSWSC 447.
2. [2014] NSWSC 447 at [54], [61].
3. [2014] NSWSC 447 at [63].
4. [2014] NSWSC 447 at [94].
5. [2014] NSWSC 447 at [100].
6. [2014] NSWSC 447 at [105].
7. [2014] NSWSC 447 at [118].
8. [2014] NSWSC 447 at [121].
9. [2014] NSWSC 447 at [122].
10. [2014] NSWSC 447 at [125].
11. [2014] NSWSC 447 at [174].
12. [2014] NSWSC 447 at [179].
13. [2014] NSWSC 447 at [176].
14. [2014] NSWSC 447 at [152]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2015