Browning v Bitupave Limited [2008] NSWSC 19 | Case summary

Browning v Bitupave Limited [2008] NSWSC 19 | Case summary | Zoe

[12]

The accident 4 On the morning of the accident Mr John Bailey was on his way back from Adelaide. He was driving a Scania prime mover and trailer with a gross weight of approximately 41 tonnes. He was driving in an easterly direction along the Lovedale Road. He came upon road works. Two vehicles passed him travelling in a westerly direction. He estimated that these vehicles were travelling at approximately 70km/h. When they came towards him he could see "all the stones flying off their cars" and bouncing off the truck. 5 When he reached the road works he slowed down to about 40km/h and then just let the truck run along at approximately 45 to 50km/h. Mr Bailey said that he was "positive" that his speed was not a little higher than that. When the two cars went past him he slowed down to 40km/h. When those cars had gone he saw coming towards him what turned out to be the plaintiff driving onto the eastern end of the road works. He said he was approximately 100m from the commencement of the road works at the eastern end when he first saw her car, although as it will emerge, this is probably an underestimate. Compared to the speed of the other two cars the plaintiff was going slower. Mr Bailey noticed this because he was watching for the rocks flying again but there weren't any. His evidence about this was as follows: "Q. Compared to the speed of the other two was it going about the same or faster or slower or? A. No, no, nowhere near it. Cause that's what I was watching for, for the rocks flying again, but there was none." 6 Mr Bailey then described the movement of the plaintiff's vehicle in the following way: "It just sort of come on steady and then the right-hand wheel of the door was sort of in the - there's like wheel tracks in the gravel where the cars had gone through and it looked like the left one tried to drop into the wheel track cause the car sort of moved to the left a bit and then it just turned in front of me." 7 There was a collision between the prime mover and the plaintiff's vehicle. Mr Bailey said that that took just seconds to happen. He said, "it was very quick". 8 When asked what he noticed about the road Mr Bailey said: "Oh, there was gravel piled up on the road. Where the wheel tracks were, there was a pile in the middle of it and either side of the wheel tracks and the same on the other side." 9 Mr Bailey said that he could see the gravel in the middle and on the sides and he saw it when he got out of the truck. He said, "when the car was coming towards me I could see the wheel tracks and the gravel around it". 10 Mr Bailey was cross-examined upon his observations of the first movement of the plaintiff's vehicle. In exhibit Y, an extract from a police notebook written at the scene of the accident, Mr Bailey is recorded as having said, "I saw this vehicle turn to its right a bit ". Confronted with that version Mr Bailey said, "Yeah, well it was its left, it went to its left, it was my right". He later confirmed that the plaintiff's vehicle "veered to the left and then back to the right". The statement given to police went on to say, "and next minute I knew the vehicle slid across and collided with the front of my truck". The notebook also recorded him saying, "I saw that at this time the vehicle was sideways with its left side towards me. It had slid over to my side of the road". 11 Under further cross-examination Mr Bailey described the movement of the plaintiff's vehicle as follows: "Yeah, it was a turn to my right, it veered, like went to the left a little bit, then slid around to the right." He went on to say that the plaintiff's vehicle "turned sideways on its own side" and then "came over to my side". He immediately applied the brakes and the semitrailer stopped nearly in its own length. The semitrailer left skid marks in the eastbound lane approximately 40m long. Mr Bailey said that his truck "didn't stop like it should have because it just rolled on top of the stones". 12 Finally, Mr Bailey was taken back to his statement to the police (exhibit Y) and cross-examined upon it in the following terms: "Q. I ask that he be shown it again, your Honour. (Shown.) Read as much as that as you need to, please, Mr Bailey, but I want to suggest this to you: There is not one word in that statement, is there, about piles of aggregate? A. There is a thing in here about the loose surface, yes.

[22]

19 In addition to the crucial evidence of Mr Bailey, all parties relied upon a series of photographs taken at the scene on the day of the accident. Reference to these photographs will be made later in these reasons. They also relied upon expert evidence. This is also referred to below in more detail. The plaintiff's case 20 Before turning to that material, however, it is important to understand the case pleaded by the plaintiff against each of the defendants. It is agreed that the first defendant carried out the physical work of resurfacing Lovedale Road at the place where the plaintiff's vehicle collided with Mr Bailey's semitrailer and that it did so pursuant to a contract with the second defendant. The plaintiff alleged that each defendant owed her a duty to take reasonable care to see that the road works carried out did not expose her to an unnecessary risk of injury. 21 It was in these circumstances that the plaintiff complained that the first defendant failed to devise, implement or maintain a system whereby excess gravel was not placed upon, or was removed from, the roadway after resurfacing, and that it placed gravel of such a type and quantity upon the road that a build up of gravel occurred between and alongside tyre tracks. There were further allegations that the first defendant failed to sweep loose gravel from the surface of the roadway prior to leaving the site on the afternoon of Friday 10 May 2002 and that before doing so it had failed properly and safely to roll in and embed the gravel that had been spread. The plaintiff also alleged that the first defendant failed to comply with what were said to be the relevant road resurfacing standards. It will be necessary to refer to these in detail as well in due course. 22 The plaintiff alleged against the second defendant that it also failed to remove loose gravel from the road and in particular that it failed to order a sweeper to come in on the afternoon of 10 May 2002. The plaintiff alleged, further, that the second defendant failed to instigate road safety measures such as lane closing prior to the gravel being fully embedded. The plaintiff relied generally upon the terms of the particulars of negligence pleaded against the first defendant. Spray sealing operations in general 23 It is not in dispute that the plaintiff's accident occurred when her vehicle went out of control on new roadwork within approximately 18 hours of the end of activities on the previous day. It is important, therefore, at an early stage to understand the nature of that work and precisely what it involved. 24 Paul Hillier gave evidence about this. Spray sealing is a commonly utilised highway surfacing technique most typically adopted for maintenance purposes. It is a relatively low-cost technique when compared to other surfacing methods and types and is generally undertaken to remedy surface defects that are not structural in nature, sealing the road surface against the ingress of moisture, and in many cases, restoring the skid resistance of the original road pavement. In its simplest form, spray sealing involves spraying the road surface with a controlled application of binder (usually bitumen, a cutback bitumen or bitumen emulsion) followed by the controlled application of crushed rock chippings. The dressing is then rolled (normally with a pneumatic tyred roller), so that the chippings become pressed into the binder to hold them in place and partially embedded into the existing original road surface. 25 A controlled excess of aggregate chippings is typically laid as not all the chippings become embedded or successfully adhere to the road surface. As a result some aggregate becomes dislodged by passing traffic in the early life of the new surface. Any loose aggregate chippings that have not embedded can ultimately present a low traction risk to road users, can damage car paintwork, and if present in significant quantities, may even adversely affect the integrity of the new seal during early trafficking. It is therefore necessary to complement the rolling operation with post-sweeping operations to remove any loose material. The latter is typically undertaken using a mechanical or suction sweeper, with suction sweepers being favoured in practice so that the mosaic is not adversely affected by this operation. 26 Recently laid spray seal is particularly vulnerable to early traffic. Because the dislodgement of aggregate chippings is largely predictable and expected and can become a risk to road users, advisory speed limits are usually imposed for some time at the site to seek to ensure significantly lower traffic speeds. It is also well recognised that low speed traffic is an excellent compactor of surface dressing. 27 There are a number of different spray seal techniques, or effectively variations on the same theme. These range from the most common, single spray seal through to multilayered dressings. The spray seal operation at Lovedale Road in May 2002 was a type known as double/double seal. This technique involves the application of two layers of chippings and two applications of binder. The second layer of binder is placed between the layers of chippings. The size of the second layer of chippings is nominally stated as half that of the nominal size of the first layer. For example, if a 14mm nominal size aggregate is used for the first layer, then a 7mm nominal size aggregate is adopted for the second. Local variation in the aggregate size adopted for the second application of aggregate can occur. 28 Double/double seals are particularly suitable for laying on existing road surfaces that are binder lean and it produces a robust treatment with an expected life of between 8 and 15 years. It has very good waterproofing qualities. Double/double seals can also provide some traffic noise reduction benefits. Despite their relatively low cost per square metre of coverage, spray seals are no different to other surfacing types in the fact that they must be comprehensively designed. Each design should also be site-specific. Design and operational guidance for spray sealing is contained within the RTA Sprayed Sealing Guide. The spray sealing operations at Lovedale Road 29 The second defendant issued a call for tenders in respect of widening and reconstruction works, which included resurfacing, at Lovedale Road, with works to be completed "by late May 2002". The works were commissioned as part of the second defendant's "Roads to Recovery" funded program. The relevant construction documentation for the works was prepared for the second defendant by engineering consultants Sinclair Knight Merz. The provisional schedule of works indicates that a gravel sub-base course, base course and an overlay were to be provided prior to the spray seal being placed. The area of spray seal is noted as 5500 square metres comprising a 10mm primer seal followed by a 14mm one coat seal. This is not the same selection as a double/double spray seal. 30 The resurfacing element of the work at Lovedale Road was to be undertaken under the second defendant's term spray seal contract for the period 1 July 2001 to 30 June 2002. This contract was won and serviced by the first defendant. Clause 2 of that contract is as follows: "Full service sprayed bituminous road surfacing shall be carried out in accordance with Roads and Traffic Authority QA Specification R106 - 'Sprayed Bituminous Surfacing (With Cutback Bitumen)', April 1997 as amended". 31 The first defendant was issued with purchase order 16118 to undertake the spray seal works. The second defendant was invoiced for the completion of this work on 17 May 2002. A Site Inspection Report prepared for the second defendant on 22 April 2002, which is effectively a preliminary design aid, refers to the need for 6500 square metres of "14/10" seal with a design rate of spread of binder of 1.28L per square metre for the first application and 0.91L per square metre for the second application together with a design spread rate of 1/98 square metres per cubic metre for the first (14mm) application of aggregate and 1/120 square metres per cubit metre for the second (10mm) application of aggregate. 32 A completed RTA pro forma Cutback Bitumen Seal and Reseal Design Calculation Sheet for Lovedale Road, completed on 23 April 2002, became exhibit 5. That sheet indicates that the works at Lovedale Road were a "Seal" with "Double Binder - Double Aggregate (DD)" [i.e. a double/double seal], and constituted "New Work". 33 With respect to the selection of aggregate sizes for double/double spray seals, the NAASRA Technical Report - Bituminous Surfacing Sprayed Work, dated January 1989, states: "When using two applications of both binder and aggregate, it is usual for the aggregate in the second application to be not greater than one half size of that in the first application..." Strict adherence to the guidance contained within the NAASRA report would have led to the utilisation of 7mm aggregate for the second application at Lovedale Road. 34 The resurfacing works on Lovedale Road on 10 May 2002 occurred between 9.15am and 1.00pm. The works were, therefore, completed approximately 18 hours prior to the plaintiff's accident, in fine conditions over six sprayer runs A to F inclusive. Runs A to C inclusive relate to the first applications of both binder and aggregate. Runs D to F inclusive relate to the second applications of both binder and aggregate. The data for runs A to C inclusive show an achieved rate of spread of binder of 1.28 to 1.3L/m2 compared to the target of 1.28L per square metre and an achieved rate of spread of 14mm aggregate of 1/95 to 1/98 square metres per cubic metre, compared to the target of 1/98 square metres per cubic metre. The data for runs D to F inclusive show an achieved rate of spread of binder of 0.9 to 0.95L per square metre, compared to the target of 0.9L per square metre and an achieved rate of spread of 10mm aggregate of 1/118 to 1/120 square metres per cubic metre, compared to the target of 1/120 square metres per cubic metre. Mr Hillier expressed the opinion that these results were well within the typical or expected operational tolerances.

[67]

47.2 The plaintiff's accident was caused by an initial loss of control due to encountering a windrow of loose stone near the left-hand shoulder of the pavement followed by an uncontrollable skid due to the low coefficient of friction caused by a layer of loose stones on the pavement surface. 48 Mr Hespe concluded that the plaintiff was travelling at approximately 50km/h when she entered the new work but had slowed to approximately 47km/h at the point of impact. This conclusion was derived from a series of complicated calculations based upon a number of known (observed) and assumed factors. With respect to Mr Hespe, I did not find his conclusions concerning speed to be particularly convincing. In short, through no fault of his own, Mr Hespe was required to incorporate too many unknown factors into his analysis. For example, the speed of the plaintiff's vehicle was inevitably calculated by reference to the speed of the semitrailer. In turn, the speed of the semitrailer whilst apparently skidding under braking was dependent upon a calculation of the coefficient of friction on the road surface. In this respect, part of Mr Hespe's report was as follows: "Let us assume that the coefficient of friction for the last 18 metres was 0.39. (It might well have been more , but we have no way of knowing what it really was. On the other hand in the above calculation we know the skid length and can be reasonably certain of the initial velocity. We can therefore be reasonably confident of the figure of 0.24 for the average coefficient of friction for the semitrailer's skid)." (Emphasis added). 49 Mr Hespe based his opinion about the condition of the road surface upon what was said about it in witness statements provided to him, as well as photographs. He expressed the following opinion derived from photograph C12: ". . . it can clearly be seen that the loose stones on the surface of the pavement have been arranged into windrows and wheel tracks by the passing traffic. This always happens when loose stone is left on the surface of the pavement. In this case, it can be seen that the depth of the windrows is such that stone has spilled back on to the old surface in front of the new work. My estimate of the depth of the windrows, from this and other photographs, is at least 25mm (1") and probably in parts 37mm (1.5")." 50 Mr Hespe also had this to say about loose stones in general: "In general terms loose stones on a road pavement, particularly a sealed pavement, is inherently dangerous. This is because it materially reduces the effective coefficient of friction between the tyres and the pavement proper; and, if deep enough, can cause side reactions on the tyres of the steered wheels causing vehicles to deviate from the steered course. Even on straight stretches of road a sufficient depth of loose gravel can give rise to a significant reduction in directional stability.

[73]

Where the balance of the road surface is unsound or has a very low coefficient of friction, once the sliding friction starts, it's very difficult and a lot - in most cases impossible to recover and that, in my opinion, is what happened here; that she - because of running into that left-hand windrow, the vehicle got into the sliding friction mode and from there on she wasn't able to recover. And what the trajectory was from there to the photograph that we were first talking about - " 54 The photograph last referred to was exhibit C1. 55 Mr Hespe also gave evidence about his opinion of the plaintiff's speed and location at the point where she lost control. The burden of his opinion in respect of the former was that she was travelling at somewhere between 40km/h and 50km/h. I consider this opinion to be unreliable and an underestimation of the true position. It either ignores or fails adequately to accommodate the observations of Mr Bailey. His evidence was that the plaintiff was travelling slower than two other vehicles that he estimated had passed him at about 70km/h. Such a description did not in my view leave room for a realistic conclusion, assessed in the context of Mr Bailey's position, that the plaintiff was travelling as much as 20km/h to 30km/h below the speed of the other vehicles. 56 Mr Hespe's opinion concerning the point where the plaintiff first lost control is also, in my view, equally unreliable. As Mr Hespe noted, "I've got no evidence because you can't see anything on any of the other photographs of the passage of the vehicle". He agreed with Mr Maconachie QC in cross-examination, that "at least 55 metres and perhaps 60 or 70 metres of the vehicle's travel is not the subject of any [photographic evidence] that [he] had access to". Mr Hespe's opinion that the plaintiff lost control within about five to ten metres of entering the new work is unsupported by evidence and is speculation at best. It is also to some extent in conflict with his assumption referred to at transcript 236, that "the total metres that she travelled after the [loss of control] event was about 75 metres". 57 Mr Hespe also confirms this at transcript page 238. He was taken to exhibit C10. With respect to that photograph he said, "I can't see anything in that photograph which indicates skid marks". Based upon this evidence and the description given by Mr Bailey it follows that the plaintiff's vehicle had not commenced to lose traction or slide onto his side of the road at any point east of the photographer in exhibit C10. In Mr Hespe's words about this on the same page were: "I conclude that - not from that photograph but from the other photographs we have been talking about, I conclude that it was still travelling more or less directly along its own axis ." (Emphasis added) 58 Then on the next page, still in reference to exhibit C10, Mr Hespe said: "All I can say from that photograph, that there is no evidence of skidding on that." 59 Finally on this topic, Mr Hespe agreed with the cross-examiner in the following terms about what flowed from the absence of skid marks in exhibit C10: "Q. No evidence which would enable you to say-- A. That the wheels--

[82]

64.4 The presence of loose gravel or aggregate is an inevitable and known consequence of the road sealing process adopted at Lovedale Road. 65 Mr Hillier expressly agreed in his first report (at paragraph 5.7) with Mr Jamieson's comments relating to the potential for loose aggregate to have an adverse effect on vehicle handling. In addition, he gave the following evidence in cross-examination: "Q. And I think you have expressed the view that loose stones, when they're on top of the aggregate, that is, in fact embedded, can affect the handling of a vehicle; is that your opinion? A. That's my understanding. They can present a risk for motorists. Q. And what is that risk, Mr Hillier? A. I understand that can cause problems for vehicle handling and that my understanding is exactly why you introduce warning signs and temporary speed control on such sites. " 66 In Mr Hillier's opinion, the presence of an amount of loose aggregate is largely inevitable and universally accepted by practitioners given the processes utilised. The pertinent difference between Mr Hillier and Mr Jamieson on this topic is that Mr Jamieson concluded that an "excess" of loose aggregate was present on Lovedale Road at the time of the plaintiff's accident, which should be characterised as excessive or unacceptable. In contrast, Mr Hillier acknowledged that there was an "excess" of material (aggregate) laid, which he described as "an accepted operational requirement". Mr Hillier did not concede that this amount was excessive. (This difference becomes significant in the discussion below on the issue of breach of duty). For present purposes both Mr Jamieson and Mr Hillier agreed that the presence of a layer of loose gravel or aggregate on the road surface was inimical to vehicle stability and control and hence to safety. Mr Johnston 67 Grant Johnston is an engineer who describes himself as a reconstructionist. He prepared a series of reports for the purposes of these proceedings and expressed a number of opinions. Some of those opinions seemed to be peripheral to his qualifications. Opinions that he appeared to me to be able to express included the following:

[110]

83 I make the following further findings. First, that the plaintiff's vehicle came across onto Mr Bailey's side of the road very quickly. His evidence supports this. Furthermore, the skid marks would have been longer if it were otherwise. Secondly, that the speed at which the plaintiff's vehicle went out of control was the same as or very close to the speed at which it collided with the semitrailer. This is because the dissipation of energy throughout the course of the skid would have been less than if the skid had taken longer and extended over a longer distance. Thirdly, that loose gravel that remained on the road after the spray sealing operation, and which was scheduled to be swept later that day, reduced the coefficient of friction to a level below that of a swept surface. I find that the coefficient of friction in the westbound lane was approximately the same as that calculated for the eastbound lane or 0.16g. 84 Every version given by Mr Bailey of what occurred includes his observation that the plaintiff's vehicle initially pulled or veered to its left and then came back into a clockwise rotation or yaw as it slid onto his side of the road. It is not possible to say with certainty what caused the initial movement to the left. The plaintiff's nearside front wheel may have "dug in" as Mr Bailey described. There is certainly no competing version and no reason to doubt its accuracy. 85 I also find that there were windrows of loose aggregate on the road. This is clearly shown in exhibits A2, A5, C2, C7 and C10. The photographs are taken with the low morning sun shining from the northeast, casting shadows across the road surface. These shadows undulate as they pass over wheel tracks and accumulated aggregate on either side of them and between them. These undulations correspond to the borders or edges of the accumulations of more or less aggregate as the case may be. Even without the benefit of the shadows, I find that the photographs depict a distinct accumulation of gravel in lines either side of, and between, these wheel tracks. The term "windrow" is in some respects unfortunate as it suggests an accumulation in elongated piles. It has a tendency to overstate the degree of accumulation. The gravel could not realistically be described as sitting in piles. However, the left foreground in exhibit C7 does in my opinion depict a volume of loose aggregate in layers quite distinctly different to, and greater than, the rather more sparsely populated paths where vehicles' wheels have tracked since the previous afternoon. The same can be said of exhibit A5. 86 The evidence of Mr Bailey concerning speed is also the only evidence that does not rely upon assumptions. It was not significantly challenged in cross-examination. The effect of his evidence in this respect is that the plaintiff was going slower than 70km/h. This puts the plaintiff's speed within the range calculated by Mr Stuart-Smith. According to him, if the plaintiff's vehicle started to sideslip at a regular rate over a distance of only 60m she would have been travelling at the point where she first lost control at a speed of between 62km/h and 82km/h. For the reasons discussed above, I have found that the plaintiff's sideslip occurred through a distance of less than 60m and more likely not in excess of 40m. Her speed as calculated by the Stuart-Smith method would therefore be correspondingly lower and in line with Mr Bailey's observations. 87 I agree with Mr Stuart-Smith, and I find, that the plaintiff was travelling at a speed in excess of 40km/h when she entered upon the new work. I do not accept that there is a reasonable likelihood that she was travelling at a speed above 70km/h. I also find that the plaintiff was probably travelling at somewhere between 60km/h and 65km/h immediately prior to her loss of control. 88 I find that whilst travelling at that speed the plaintiff's nearside front wheel drove onto a windrow, or what I prefer more accurately to describe as an accumulation of excess aggregate formed by the passage of vehicles over the new work in the 18 or so hours preceding the accident. It then caused the vehicle to "drop into the wheel track" or "to dig in and pull to the left where there was excess gravel on the fringe of the roadway". This then either caused the plaintiff's vehicle spontaneously to go into a clockwise rotation or may possibly have caused the plaintiff to react by pulling the steering wheel to the right. This is what Mr Stuart-Smith described as a "severe steering correction". However, according to Mr Hespe, "[w]hether she did or not would not have altered the fact that the vehicle was out of control". As Mr Hayes described it, "[t]here were stones on the road, and there were loose stones on the road". I find that the rotation of the plaintiff's vehicle was caused or facilitated by the layer of loose gravel or aggregate that remained upon the surface of the roadway, which was due to be swept off later that same day.

[111]

What roles did the defendants play in the post spray sealing operations at Lovedale Road? 89 Clause 16 of the second defendant's spray seal contract (the tender) states, "Cleaning up shall be the responsibility of the [first defendant]". Clause 19 provides as follows: "The removal of excess aggregate from the road surface, road shoulders, gutters and table drains during the Defects Liability Period shall be the responsibility of the [first defendant]. If the [first defendant] fails to comply with a direction from the Superintendent to remove excess aggregate, then the Principal may remove the aggregate at the [first defendant's] expense". 90 Clause A3.3.6 of the RTA specification relates to Control of Traffic. It requires the Contractor to: ". . . take all necessary precautions to protect the work from damage until such time as the new seal coat has developed sufficient strength to carry normal traffic without disturbance of the aggregate. Where early use of the new seal is needed to facilitate the movement of traffic, vehicles may be allowed to run on the work after initial rolling has taken place provided vehicles are controlled to such slow speeds that no displacement of aggregate occurs . . ." 91 Clause A3.7 of the RTA specification deals with the Application and Incorporation of Aggregate. It provides as follows: ". . . The Contractor must apply the aggregate of the specified nominal size and at the target aggregate application rate. The method to determine the actual aggregate spread rate must conform with RTA T274 or as approved by the Superintendent . . . " 92 That clause also says that the aggregate must be "spread uniformly" and that rolling must then take place using pneumatic tyred rollers until the aggregate is firmly embedded. It is suggested that not less than eight roller passes within one hour of placement should occur. If the aggregate is not evenly distributed then a drag broom can be used after initial rolling to rectify the situation. 93 With respect to double/double seals, clause A3.7 continues as follows: "Where a bituminous surfacing is specified with separate applications of coarse and fine aggregate, each on a single application of binder, the coarse aggregate must be applied first, rolled and any necessary brooming carried out . . . before application of the fine aggregate and its subsequent rolling and brooming . . .

[125]

· The road should not be opened to unrestricted traffic until the loose aggregate has been removed. " (Emphasis added). 97 It should immediately be noted that the defendants' response to the last of these points is that Lovedale Road, although clearly opened to traffic before loose aggregate had been completely removed, was not opened to "unrestricted traffic". This is presumably because of the signs variously placed at distances commencing at approximately 1 km east of the start of the new work. This is discussed in more detail below. 98 Based upon photographs in exhibit C, however, Mr Jamieson expressed the view that the road "was not suitable for 'unrestricted' two-way traffic". In his opinion, there should have been a traffic controller present just prior to the change in pavement to ensure that approaching vehicles were within the sign posted speed limit of 40km/h and that the vehicles were aligned with the wheel tracks shown in photograph C12. 99 Mr Hespe expressed the opinion that loose stone should never be left on a sealed pavement unless there is some supervision by way of flagmen or guide vehicles. He drew attention to the fact that the contract between the defendants embodied a specification, clause 2 of which required that all bituminous road surfacing be carried out in accordance with the Roads and Traffic Authority of New South Wales QA Specification R 106. Clause 9 of that document is headed "Sweeping and Loose Aggregate Removal (10mm and 14mm seals/reseals only)" and includes the following material: "After final sweeping and prior to the work being opened to traffic at the pre-existing sign posted speed, the number of loose aggregate particles (per m2) not including aggregate particles from any scatter coat, determined in accordance with RTA T277 must not exceed the values shown in Annexure R106/A." 100 Mr Hespe's comment in relation to this provision was as follows: "[The provision] is far from explicit; it certainly seems to allow traffic on the new pavement before sweeping is completed and provides for certain speed restrictions and signage, but it gives no indication of how much loose aggregate is permissible under such conditions nor does it give any time limits. This is far from satisfactory." 101 In my opinion, this provision is only partly relevant. Final sweeping had not occurred. It makes no specific reference to supervision by flagmen or guide vehicles. It does however appear to support the conclusion that a newly sealed road should not be opened to traffic at the usual speed limit until after final sweeping occurs. The provision suggests that there may in a limited sense permissibly be loose aggregate particles on the roadway even following final sweeping. 102 According to Mr Hillier at paragraph 4.43 of his first report, the guidance available to the first defendant at the time of the plaintiff's accident "was not totally definitive (and therefore, could have been open to interpretation) with respect to whether sweeping should take place a set time after rolling or at some time afterwards based upon an assessment as to whether the spray seal had stabilised". He noted that the NAASRA guidelines indicated that works should be organised "such that sweeping can be completed before nightfall", indicating in turn a requirement for an allowance of up to four hours between the completion of the works and stabilisation of the seal. 103 At paragraph 4.46 of the same report, Mr Hillier expressed the following conclusion: "Whilst the photographs I have seen from around the time of the material incident do show both the presence and the trafficking of some loose material (e.g. overspread or displaced aggregate), based on my experience of spray seal operations, I do not consider the extent to be either unusual or excessive." Mr Hillier concluded that the photographs did not show a build up "sometimes referred to as 'windrows'" outside the vehicle wheel paths that he had sometimes seen where the application of aggregate had been noticeably 'heavy' - that is to say, poorly controlled and/or considerably in excess of the target rate of application. 104 Mr Hillier also commented upon Mr Hespe's conclusion drawn from photographs that loose aggregate had been "arranged into windrows and wheel tracks by the passing traffic" and that that was effectively an inevitable occurrence where loose aggregate was present. Mr Hillier said the following at paragraph 2.10 of his third report: "I am certainly in general agreement with the tail end of this argument, i.e. where freshly laid and rolled spray seal surfaces are opened to 'controlled' (ie speed limited traffic, in this case 40km/h) the ' settling down' of the matrix occurs more rapidly in the wheel paths and any aggregate that may be removed from with inner wheel path by the motion of car tires tends to be transported away and congregate/settle away from the wheel paths. A difference in visual appearance between the wheel paths and the surrounding localities results, which can, in my experience, give rise to a perception that tracking or rutting is starting to occur, and in part, this is strictly true as aggregate further embeds and/or settles in the wheel paths until it is stable." 105 It was Mr Hillier's opinion that whatever nomenclature might be used, the accumulations of loose aggregate in the circumstances of the present case could not be described as "excessive". 106 As noted earlier at par [69], it is also clear that Mr Johnston was of the opinion, having regard to the available photographic evidence, that an excess of gravel was present on Lovedale Road at the time of the plaintiff's accident, but that this could not be described as excessive or other than what might have been expected in the circumstances. Similarly, reference has been made at pars [75.3] and [76] to Mr Stuart-Smith's opinion, derived from the same photographs, to the effect that no excessive gravel was observable by him. 107 The evidence touching and concerning the issue of whether or not the gravel that remained on the roadway was "excessive" is limited first to the contemporaneous observations of Mr Bailey and secondly to the photographs taken of the scene of the accident on the morning that it happened. Before turning to that evidence, however, it is necessary to refer to submissions made by the defendants about evidence that was not called on this issue. Jones v Dunkel 108 The defendants submitted that the police officers, the fire brigade officers, tow truck operators, and "other persons whose presence is plainly established by the various photographs" would have been in a position to speak of the extent of gravel on the roadway but they were not called. The defendants submitted that the unavailability of these witnesses was not established and that the inference should be drawn that the plaintiff feared to call them (which in my opinion is an unavailable inference), or that such witnesses could not have assisted the plaintiff's case. The defendants contended in those circumstances that any inference otherwise available on the evidence contrary to the case propounded by the plaintiff about excessive gravel should the more easily be drawn: see Jones v Dunkel (1959) 101 CLR 298. 109 I reject that submission for two reasons. First, I am not satisfied that the availability or otherwise of these witnesses was a matter that fell upon the plaintiff to establish. The defendants' submission that an adverse inference should be drawn against the plaintiff because of her failure to call these witnesses could only be made upon a proper evidentiary basis including, in my opinion, their availability to be called as witnesses or otherwise. The defendants led no evidence in support of that submission. 110 Secondly, even if I were wrong on the first point, the witnesses were not obviously in either the camp of the plaintiff or the defendants. I am not comfortable with the proposition that any of the parties might reasonably have been expected to call such witnesses. The availability of any adverse inference upon which the defendants could rely is inevitably confronted by an equal and opposite inference available to the plaintiff. In my opinion, the failure by any party to call these witnesses gives no meaningful or reliable flavour that is of assistance to me one way or the other. Discussion

[126]

Mr Bailey's evidence 111 According to submissions relied upon by the defendants, Mr Bailey's oral evidence about "piles" of stones was "inexact, impressionistic, inconsistent with what he told (or did not tell) the police officers and comes years after the event when it is plain that he has befriended the plaintiff, is sympathetic to her, and apparently (reasonably and understandably) felt some sense of responsibility for the unfortunate state in which the plaintiff finds herself today". With great respect to those submissions, there is no basis at all to suggest that Mr Bailey felt any sense of responsibility for the plaintiff's condition. All the evidence suggests that he was driving his semitrailer at a reasonable speed on his side of the road when a collision occurred in circumstances over which he had absolutely no control. It is in my opinion impermissible to connect either Mr Bailey's admitted friendship with the plaintiff or his understandable sympathy for her with a perception on his part that he may have been at fault. At best for the defendants, such a suggestion could only be prayed in aid of a contention that Mr Bailey was lying. However, that submission is not available to the defendants in the absence of an appropriate challenge to him, nor is it made. Mr Bailey's relationship with the plaintiff would not promote an available submission that his evidence was inexact by reason of the passage of time, a submission that is largely beyond controversy. 112 I do not accept the submission that Mr Bailey's evidence was either inexact or impressionistic. His oral evidence before me and his written statements before that were given in a vernacular form. Having regard to his background, training and experience, anything else would have been remarkable. I did not find his evidence to be any less communicative or comprehensible by reason of that fact. Furthermore, alleged inconsistencies between or among versions of what he observed were in any event limited to his observations of the movements of the plaintiff's vehicle prior to the collision and were in my opinion ultimately resolved before he left the witness box. 113 Mr Bailey's evidence has a special significance, as he was the only eyewitness to the accident who was capable of giving evidence about it. He was of course not the only witness to the state of the road when it occurred. Moreover, the photographic evidence was contemporaneous and not subject to the criticisms or frailties of the type directed at Mr Bailey. Mr Bailey's evidence must, in my opinion, be viewed and assessed in the light of what the photographs reveal. Precisely what the photographs reveal, however, was the subject of several competing opinions. Photographic evidence 114 For their part, the defendants cautioned about the limited usefulness of photographs in determining the issues arising in this case. Their written submissions in this respect were as follows: "Photographs have a limited usefulness in determining issues such as that which this court has to determine - in a number of cases there are statements, which give guidance to the approach to be taken - while the statements deprecate the court interpreting photographs and counselling reliance on expert evidence, in context the[y] make the point that photographs are limited in their forensic assistance - what people saw is of greater assistance and photographs should be used as an aide to understanding evidence, rather [than] being the evidence. The court will look for the best evidence available to assist it in the fact-finding exercise and photographs are of a second order of importance compared to eyewitness testimony." 115 I was specifically referred to the judgment of Meagher JA in Short & Anor v Barrett (New South Wales Court of Appeal, 5 October 1990, unreported) when his Honour said: "It is not evident that it testifies to obvious weathering and cracking. Moreover, his Honour seemed to rely on his own interpretation of the photo. In this respect he overlooked the sage advice of Lord Reid in C Van de Ley NV v Bamfords Ltd (1963) RPC 61 at 71: "But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be most worthy of acceptance". 116 In Stillwell Trucks v McKay [2002] NSWCCA 292, a similar theme was expressed: "[71] In C. Van de Ley N.V v Bamfords Ltd (1963) R.P.C. 61 Lord Reid said at 71:

[127]

'Lawyers are expected to be experts in the use of English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter of evidence. Where the evidence is contradictory the Judge must decide but the Judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witness appears to be most worthy of acceptance'." 117 Undoubtedly with these considerations in mind, the defendants made the following submissions about what the photographs revealed. First, the defendants submitted that none of the photographs was capable of supporting a finding that there were furrows in gravel two to five stones deep, or that there were windrows of aggregate to the left, to the right, and in the centre of two marked wheel lanes for westbound traffic as described by Mr Hespe. There was no "vertical" against which the depth of stones in any part of the roadway could be identified in the photographs such as a pen, a ruler, a finger, or similar. 118 Secondly, none of the shadows cast by trees, parts of motor vehicles, or the like, demonstrated any tell-tale deflections that one might expect to see if there were variations in the levels of aggregate in the roadway. 119 Thirdly, the photographs showing the wheels of Mr Bailey's truck, after it had skidded with its trailer wheels locked over a distance of 40m, show no build-up of aggregate in front of, behind or beside the wheels. 120 Fourthly, the evidence of Mr Jamieson and Mr Hespe, asserting that the photographs show evidence of an excess of gravel, should be rejected. The defendants drew attention to the fact that Mr Hespe asserted on a number of occasions that one had only to look at the photographs to be able to see the variations in level of aggregate between two and five stones. The defendants submitted that "as a matter of commonsense" and "common observation" that was not so. 121 I accept that, in accordance with these authorities, "where the evidence is contradictory", I ought not to attempt to read or construe photographs myself but should instead look at the photographs to determine which of the explanations given by the witnesses appears to be most worthy of acceptance. I do not, however, accept that these authorities constrain me in the particular circumstances of the present case from forming a view about what the photographs appear to reveal or depict. (This will already be apparent from the views I have expressed about the photographs at pars [80] to [82] inclusive and [85] above). This is for a number of reasons. 122 First, I do not consider that the evidence in this case is relevantly "contradictory". The evidence in the photographs is supported by the evidence of Mr Bailey and vice versa. No single photograph or series of photographs is inconsistent or irreconcilable with any other photograph or series of photographs. The fact that different experts have expressed differing opinions about what the photographs reveal does not lead to the result that the photographs therefore contain a contradiction that only experts can explain. The photographs appear to me uniformly to reveal one and the same thing. 123 Secondly, the subject matter of the photographs does not raise a question of "what the eye of the man with appropriate engineering skill and experience would see". The fact that the photographs depict the surface of the road in a condition that has resulted from the performance of a technical engineering procedure should not be confused with the notion that only similarly qualified experts should be required to interpret them. In the very words of the defendants' submission, what the photographs reveal would appear to be a matter of common sense and common observation. This is to be contrasted, for example, with the photographs that were the subject of consideration in Stillwell Trucks (supra) where the issue to which consideration of the photographs was directed involved questions such as the positive identification of a particular object as a rose joint ball and whether or not there was photographic substantiation that the joint failed. "Excessive"? 124 The word "excessive" is not meaningful except within some recognised and understood context. There is no dispute among the experts that loose stones on a road surface can present a risk to motorists. In the context of vehicle handling and safety, therefore, even small amounts of loose gravel may be regarded as "excessive". In the context of road construction technique, however, loose gravel on the road surface after pneumatic rolling but prior to brooming is apparently acceptable and not considered "excessive". The evidence of Mr Parsons and Mr Hayes was, in my opinion, given in the latter time frame. When Mr Parsons drove over the road at the conclusion of the job he did not consider that there was any loose material on it. Similarly, Mr Hayes observed "nothing out of the ordinary basically" and no quantities of loose aggregate, although he later conceded that "there were loose stones on the road". Significantly, of course, the evidence of these witnesses was given in respect of observations made approximately 18 hours before the plaintiff's accident and well before passing vehicles had created the conditions described by Mr Bailey and shown in the photographs. 125 I consider that the evidence of Mr Hillier was also given in the same context. An example of this appears in the following paragraphs from Mr Hillier's third report: "2.20 . . . Mr Hespe appears to accept that loose aggregate will remain after rolling, but infers that this should then be removed prior to allowing traffic to traverse the site. As argued a number of times within this report, the latter assumption is simply not the case in practice or a formal requirement, with a reduction in traffic speeds being stipulated to mitigate the risk of loose aggregate, as well as being an excellent (if not the best available) compactor of a recently laid spray sealed surface."

[129]

Breach of duty 128 The first defendant submitted that the plaintiff's case must fail on the issues of the existence of a duty of care, any breach of that duty and causation. This was because, so it was submitted, the court must find on the evidence that the relevant risk was an obvious one, or alternatively that there was no excessive aggregate on the road. In particular, the first defendant contended that there were no windrows or multiple levels of aggregate on the road, or at least no multiple levels of aggregate of the depths and distributions asserted by the plaintiff. 129 According to the written submissions of the second defendant, the issue for determination is effectively whether there was an excessive amount of loose aggregate present on the surface of the road. The second defendant submitted that, since all the evidence established that there was likely to be loose aggregate on the road surface even after sweeping, the ultimate question must be whether the amount of aggregate was unreasonable in all the circumstances. 130 I have found that the plaintiff's accident was caused, among other things, by an excess of gravel on the road that had been placed there by the first defendant. It is not in dispute that an excess of gravel on the road surface was, in operational terms, ordinary and expected or, in Mr Hillier's words at paragraph 2.6 of his third report, an "inevitable and known consequence" of the particular method of re-sealing that had been adopted, and that arrangements had been made to remove that excess gravel by sweeping on the day following its completion. Mechanical sweeping earlier than this was contra-indicated, as it was likely to damage the road surface. Moreover, in accordance with the method adopted by the first defendant, embedding of the loose aggregate was partially dependent upon the passing of vehicular traffic over the road surface at low speed prior to sweeping. Temporary road signs warning of the condition of the road surface were to some extent a reflection, and a recognition by the defendants, of the intention to leave the road still covered with excess gravel for a period until its final removal could appropriately be arranged, during which time its dangerous condition was known and understood. The reasonableness of the decision that led to the amount of aggregate that was on the roadway when the plaintiff's accident occurred, or the decision to leave any aggregate there until the final sweeping, and what may have been the respective responsibilities and involvement of the defendants in these decisions, fall to be determined in the light of all of these matters. 131 In these circumstances, were the defendants, or was either of them, liable to the plaintiff for having failed to sweep loose gravel from the surface of Lovedale Road prior to leaving the site and opening the road to uncontrolled or unrestricted traffic on the afternoon of Friday 10 May 2002 and/or for having failed properly and safely to roll in and embed the gravel that had been spread before doing so? 132 The defendants submitted that the plaintiff had not demonstrated on the evidence in this case that a reasonable person in the defendants' positions would have taken any of the precautions that the plaintiff asserted ought to have been taken. In particular, the defendants submitted that sweeping the next day was common practice and widespread and that the risk of serious damage to a fresh seal, with the consequent risk of having to start all over again, was significant. In addition, the defendants' evidence was to the effect that the use of passing traffic at controlled speeds was the most effective way of embedding the aggregate in the binder. 133 The defendants next submitted that no finding of breach of duty could be made against them because of the terms of s 5B(1)(c) of the Civil Liability Act 2002 ("the Act"). That section is in the following terms: " 5B General principles

[136]

(d) the social utility of the activity that creates the risk of harm." 134 The burden of the defendants' submissions in this respect was that in the circumstances of the present case a reasonable person in the position of the defendants would not have swept before leaving the site or opening the road, particularly having regard to the non-exclusive list of matters referred to in subs (2). 135 I find that the risk was clearly foreseeable. So much is clear from the evidence of Mr Hillier extracted above at par [65]. As he so bluntly put it, that "is exactly why you introduce warning signs and temporary speed control on such sites". Mr Johnston was to like effect. He said, "there is always a small amount of loose aggregate prior to the road being swept . . . that's the hazard": see par [70]. 136 Nor was the risk insignificant. The defendants' evidence in general and that evidence of Mr Hillier and Mr Johnston in particular demonstrated a relationship between the presence of loose gravel and the potential for loss of control of vehicles. As Mr Hillier said, loose stones, on top of embedded aggregate "can present a risk for motorists". 137 I also find that a reasonable person, charged with the responsibility of deciding whether or not to do so, would not have permitted traffic upon an unswept Lovedale Road, even having regard to the signs that were in place. The probability that an accident such as the plaintiff's accident would occur if care were not taken must have been high having regard to the not insignificant nature of the risk. The likely seriousness of the harm must be judged having regard to the fact that both the eastbound and westbound lanes of Lovedale Road were opened simultaneously, thus raising the possibility of collisions between vehicles travelling in opposite directions, thereby doubling the effective speed of such vehicles upon impact. The burden of taking the relevant precautions would appear to be either negligible or nil. The second defendant submitted that something in the order of approximately 1000 vehicles might have been expected to travel over Lovedale Road in the period between cessation of work on the afternoon of 10 May 2002 and the plaintiff's accident on the morning of 11 May 2002. As far as I can determine, the only burden imposed upon the defendants in those circumstances would have been the costs associated with the employment of a multi-tyred pneumatic roller to effect a series of further passes over the new work equating to the embedding effect provided at no cost by passing motorists. The activity that created the risk of harm was the decision to open the road before it had been swept. The social utility of that activity falls to be assessed by reference to the consequences of the alternatives, such as keeping the road closed until sweeping it had occurred. By adopting the technique of closing one side of the road at a time, disruption to the relatively small number of motorists using the road would itself have been relatively small. 138 In my opinion, a reasonable person, charged with the responsibility of deciding whether or not to do so, would not have opened Lovedale Road to unrestricted traffic until it had been finally swept of loose gravel. I consider that the photographs reveal the road to have been in a condition covered by excessive gravel, in the sense that gravel dislodged by passing traffic between the cessation of work on 10 May 2002 and the plaintiff's accident the following morning that was, or should have been, known by the first defendant to have been unsafe and dangerous. I repeat what I said at par [85]. I specifically reject the suggestion that differences in colour on the road surface shown by the photographs in exhibit C were merely discolouration caused by passing traffic. For example, exhibits C13 and C15 distinctly show different levels of accumulation of gravel upon the road surface. Although these photographs are taken looking in an easterly direction, they correspond to what is shown in exhibit C12. The skid marks left by the offside wheels of the semitrailer depicted in exhibits C8 and C9 are, in my view, particularly stark examples of the dissimilarity of aggregate densities of which both Mr Jamieson and Mr Hespe spoke, even if the speculative detail of the numbers of stones into which Mr Hespe appeared to descend is unsupported by any respectable objective analysis. It is in my opinion meaningless to discount the relevance of the photographs by reference to what Mr Parsons and Mr Hayes observed on Thursday afternoon when they left the site, or to any conversations that might have occurred concerning whether or not the road should have been swept at that time. It was well-known that sweeping was required in order to remove excessive gravel that expert road makers knew would be dislodged by passing traffic. That was the gravel that I find should have been removed before the road was opened. 139 Nor am I satisfied that any duty owed to the plaintiff in the circumstances of this case was met or discharged by the presence of the various signs listed above at par [42]. Clause A3.3.6 of the RTA specification referred to earlier deals with the circumstance where early use of the new seal is needed to facilitate the movement of traffic. Accepting that early use of the new seal was needed, the clause contained the proviso that vehicles be controlled to such slow speeds that no displacement of aggregate occurs. The case for the defendants before me proceeded upon the basis that some displacement from vehicular traffic was inevitable and expected. Clearly enough, the signs in place were not intended to limit or to restrict traffic to speeds at which no displacement of aggregate occurred. 140 Be that as it may, the signs in place were in my opinion inadequate to convey to a motorist such as the plaintiff the precise nature or extent of the risk that existed. To start with, signs informing motorists that roadwork would be encountered ahead are wholly lacking in any presently relevant content. Symbolic signs showing a worker with a pile of gravel or a shovel fall into the same category. Similarly, signs warning of a curve, advising motorists to watch for entering traffic, that speed zones are enforceable or that no lines are marked and overtaking should not be attempted, all say nothing about the risk of loss of control caused by loss of traction on loose gravel. The very nature of the symbolic loose stones sign rather directs attention to the possibility of windscreen or paintwork damage and little, if anything, else. Chevrons are no more than a diagrammatic indication of a curve in the road. 141 The remaining signs were three in number. The first sign indicated an upcoming 40km/h speed zone and the second imposed it. The third sign was a symbolic representation of a vehicle leaving skid marks. The first two signs patently say nothing about vehicle handling, skidding, loss of control or anything like it. They do not in my view, even in combination with the other signs, inform a motorist of the complex nature of the risk that he or she was about to confront. (The speed signs are certainly relevant to a consideration of the question of contributory negligence, which is considered later in these reasons). 142 The symbolic slippery sign is also in my view devoid of relevant content. It is for this reason also potentially misleading. No motorist could be expected with confidence reasonably to conclude other than in a most general and unsatisfactory way what particular road condition or conditions may have been contemplated by such a sign. Nor is the sign relevantly associated or connected with an advisory speed so as to permit a motorist to form a view, independently of the actual speed limit, about the circumstances in which, or because of which, a slippery road may be encountered. 143 It was the plaintiff's case that restricted or controlled access to the road, as described in the various provisions, contemplated men or women physically present upon the road with traffic control signs, or their mechanical equivalent, contemporaneously limiting and regulating the speed and flow of traffic. This is what the first defendant actually did during the resealing operation. For example, Mr Parsons gave the following evidence on this topic: "Q. Traffic control, what are you referring to there by the words "traffic control"? A. We had a contracted group that was contracted to do it and they were Professional Traffic Services.

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Q. Whilst you were working? A. Working there." 144 According to the plaintiff, the defendants, or one of them, wrongfully permitted unrestricted access to traffic upon Lovedale Road before it had been finally swept when none of the signs qualified in any relevant way as a restriction or as a control upon it. I agree. This is particularly so considering the fact that access to the road where roadwork in general had been performed over the preceding period of approximately six weeks was completely undifferentiated from access to the road following completion of the resealing work that finished on the afternoon of 10 April 2002. As the defendants' submissions emphasise, the plaintiff was familiar with the road and had used it regularly a number of times, if not many times, during that six-week period. The accident that caused her injuries, however, appears to have occurred on the first occasion that she used the road (at least travelling in a westerly direction) after it had been resealed. 145 The first defendant submitted that by reason of the fact that "appropriate signage was in place", (a notion which I have rejected), anyone using the road, by virtue of that signage and by virtue of the work being carried out, knew to expect changed traffic conditions almost on a daily basis and that accordingly "the risk" was an obvious one. I reject that submission. In my opinion, the only thing that was obvious was that roadwork was in progress. In my view, the confusing and relevantly uninformative nature of the signs, and (on the first defendant's submissions) the apparently constantly changing nature of the traffic conditions, meant that the risk that confronted the plaintiff was not only not obvious but was hidden at worst and obscure at best. I do not agree, as submitted by the first defendant, that a reasonable person in the position of the plaintiff, and in the circumstances, would have regarded the risk of reduced traction as obvious. Is either defendant liable? 146 I have almost without exception considered the defendants' approach to the plaintiff's case without distinguishing between them. This is for the reason that the second defendant specifically adopted the submissions of the first defendant concerning the plaintiff's ability to prove a relevant breach of duty, with any necessary adaptations to the case made against the second defendant. Clearly enough, the defendants parted company upon the legal ramifications of a conversation between Mr Parsons and Mr Hayes and the relationship between the defendants, and as to the apportionment of any liability between them. These are dealt with below. 147 In addition, the plaintiff's case against the defendants did not itself discriminate, either as pleaded or presented, between the scope and content of the respective duties which she contended were owed by the defendants or between the breaches of duty alleged to have been committed by each of them. In her case against both defendants the plaintiff simply relied upon the evidence lead against either defendant. Finally, the plaintiff's submissions did not distinguish in any particular detail between the cases she sought to make out against each defendant. The plaintiff, in effect, was content to rely upon resolution of this issue as the product of the dispute as to apportionment between the defendants. The analysis that follows therefore should be understood having regard to those limitations. 148 The second defendant had a duty to take reasonable care that was not discharged merely by engaging the services of the first defendant. It did not have a duty to ensure that the employees of the first defendant did not behave carelessly: see Leichhardt Municipal Council v Montgomery [2007] HCA 6 at [27] per Gleeson CJ; (2007) 233 ALR 200. 149 The second defendant relied upon that case as supporting the proposition that, save in circumstances where the second defendant had been negligent in its choice of the first defendant as its independent contractor to perform the works, it was not liable to the plaintiff in the absence of specific acts or neglects in breach of its undoubted duty of care to the plaintiff. As the following quoted passages from Montgomery (supra) demonstrate, the case proceeded as far as the Court of Appeal upon the assumption that the Council in that case had a non-delegable duty of care to the plaintiff: "[5] In the Court of Appeal, there was an unsuccessful challenge to the finding that employees of [the contractor] had negligently covered the pit with carpet at a time when the pit cover was broken. That issue is not the subject of this appeal. The Court of Appeal agreed with the primary judge that, there having been negligence on the part of [the contractors'] employees, the appellant Council was liable without any need for the respondent to show fault on the part of Council officers. Following a line of English authority, and earlier decisions of the New South Wales Court of Appeal Hodgson JA, with whom Mason P and McColl JA agreed, said:

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[6] A conclusion that, in given circumstances, a defendant who is sued in negligence owed a duty going beyond a duty to exercise reasonable care to avoid injury (or injury of a certain kind) to a plaintiff, and extending to a duty to ensure that reasonable care to avoid injury to the plaintiff was exercised, is commonly described as a conclusion that a defendant was under a non-delegable duty of care to a plaintiff. It is a proposition of law concerning the nature or content of the duty of care. A duty of this nature involves what Mason J described in Kondis v State Transport Authority as "a special responsibility or duty to see that care is taken". Such a duty enables a plaintiff to outflank the general principle that a defendant is not vicariously responsible for the negligence of an independent contractor. The present case provides an example. No one doubted that, if causative negligence on the part of Council employees had been established, the Council would have been liable. No one doubted that the finding of causative negligence on the part of [the contractors'] employees meant that [the contractor] was liable. However, there being no suggestion of any fault in the choice of [the contractor] as a contractor, if it had not been for the special duty held (as a matter of law) to exist, the [Council] would not have been liable for an injury caused only by the negligence of [the contractors'] employees." 150 I was not referred to any authority by the plaintiff or the first defendant to suggest that, in the circumstances of the present case, the principles enunciated in Montgomery ought not to apply to a resolution of the question of the second defendant's liability to the plaintiff. For example, it was not suggested that particular legislation or factual considerations not applying in Montgomery made the analogy with that case inapposite. There was certainly no dispute about the relevantly applying contractual provisions that governed the relationship between the defendants. It was not submitted by the first defendant that the removal of excess aggregate from the road surface was not its responsibility in accordance with clause 19. It was not submitted by the plaintiff that the second defendant had negligently employed or engaged the first defendant as its contractor to carry out the works. 151 The second defendant submitted that whatever duty it had to the plaintiff had been discharged by the selection of the first defendant as an apparently competent subcontractor. It submitted that there was no duty imposed on the second defendant to ensure that the employees of the first defendant did not behave carelessly: see Montgomery at [27]. 152 Accordingly, the first defendant sought to argue that the second defendant was directly in breach of its own duty to the plaintiff as a result of its independent failure to erect proper or adequate warning signs. However, clause 14 of the tender deals specifically with the responsibility for signs. It is in the following relevant terms: " 14. CONTROL OF TRAFFIC

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Any temporary warning signs required after the work is completed shall be erected and maintained by [the second defendant]. In this regard, the [first defendant] is required to give [the second defendant] at least seven (7) days notice of intended sealing dates and the order of work." (Emphasis added). 153 Although there was considerable evidence, and although I was referred to a number of general provisions, about road signs (see, for example, the report of Mr Johnston exhibit 7-1), my attention was not drawn to any other provision said to be relevant to the allocation of responsibility as between the defendants for the erection or maintenance of appropriate signs. (This is so notwithstanding a specific pleading in the first cross claim that the second defendant breached its contract with the first defendant by failing to have appropriate temporary signage in place to inform the plaintiff of the changed traffic conditions expected to be found at the site of the works or to erect signs "in accordance with AS1742.10", (whatever that may mean)). Even if there were room for argument that the plaintiff's accident did not take place "during the execution of the works", there is no room for argument that it occurred before completion of the work that the first defendant was required to perform. Any obligation upon the second defendant to erect any temporary warning signs "after the work is completed" had obviously not arisen. The allocation of contractual responsibilities between the defendants is of course neither necessarily co-extensive with nor determinative of the scope and content of their respective independent duties of care to the plaintiff. However, in the absence either of evidence or a submission that the second defendant was negligent in the choice of the first defendant as its contractor, the second defendant was not in the circumstances of this case in breach of a duty of care that it owed to the plaintiff by failing to second-guess the adequacy of the first defendant's performance. 154 Rather than attempting to confront this reasoning, and arguably in anticipation of it, the first defendant sought instead to rely upon a conversation between Mr Parsons and Mr Hayes as having the consequence that the second defendant was thereby inculpated, with the result that the first defendant's liability to the plaintiff was either excluded or reduced. That conversation emerged in the course of evidence given by Mr Parsons in the following terms: "Q. (Exhibit N shown) Pardon me for being so unhelpful Mr Parsons, but it is usually preferable to see how much anybody can remember before they refresh their memories. Is exhibit N a copy of your diary for 10 May? A. Correct.

[164]

164.7 Failing to keep a motor vehicle on the correct side of the road. 165 The first defendant submitted that one unambiguous and uncontroversial factual circumstance bespeaks contributory negligence. That was the movement of the plaintiff's vehicle from the correct side of the road to the incorrect side of the road and into the path of Mr Bailey's semitrailer. According to the first defendant's submission, unless the circumstances, or other evidence, provide a logical and acceptable reason for the course taken by the plaintiff's motor vehicle, the fact of her moving to the incorrect side of the road is strong evidence of contributory negligence. There was no acceptable explanation for the plaintiff's car following the course that it did, other than her failure properly to manage and control it. 166 I disagree with that submission. It amounts, in effect, to a plea of res ipsa loquitur by a defendant against a plaintiff. There was an acceptable explanation for what occurred. I have described it above. 167 However, I do consider that the plaintiff's speed contributed to the accident and that it was negligent in the circumstances for her to have driven in excess of 40km/h. I have already decided that the speed signs were inadequate to warn the plaintiff of the risk that she encountered. Limited to the provision of information about speed, however, the signs were unambiguous and perfectly adequate. If the plaintiff was travelling, as I have found, at somewhere between 60km/h and 65km/h at the point when she lost control, she was clearly in excess of the posted speed limit of 40km/h, and therefore driving at, or slightly in excess of, the usual speed limit for the road at that location of 60km/h. 168 All of the expert evidence confirms that speed was a relevant contributing factor to the plaintiff's initial loss of control, to the behaviour of her vehicle from the point where control was lost until the point of impact with Mr Bailey's semitrailer, and to the extent of the damage caused by reason of the speed at impact. It is inaccurate to describe the plaintiff's negligence in terms that she lost control of her vehicle or drove onto the incorrect side of the road. Nor in the context of a consideration of the extent to which her own negligence contributed to her loss and damage is it accurate to say that the plaintiff failed to drive according to the prevailing road conditions. Her negligence was driving in excess of the prevailing speed limit. The plaintiff's accident may well have occurred at speeds lower than 60km/h or 65km/h. At those speeds, however, I am satisfied that the plaintiff negligently contributed to her own loss and damage. 169 I assess the plaintiff's contribution at 15%. Cross claims 170 There are three cross claims. By the first cross claim the first defendant sued the second defendant seeking both damages for breach of contract and contribution or indemnity in accordance with s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. 171 The breach of contract claim relied upon clause 2 of "a written contract dated 14 August 2001" entered into between the defendants for the performance of resurfacing works at Lovedale Road on 10 May 2002: see par [30] above. The first defendant alleged that pursuant to that contract the second defendant was the superintendent of the works responsible for erection and maintenance of temporary warning signs required to be erected each day outside of the hours of work and after resurfacing works were completed by the first defendant, and responsible for the inspection of the works upon completion. Particulars of the alleged breach of contract by the second defendant, which it denied, were as follows: (a) Failing to have any [sic] place temporary signage adequate to inform the plaintiff of the changed traffic conditions expected to be found at the site of the works.

[171]

(iii) Against any injury to any third party or parties or damage to any property whatsoever caused during the course of the [first defendant's] business by the [first defendant] or his employee under a public liability policy. Such policy shall contain a cross liability clause and a principal's indemnity noting the [second defendant] as Principal and shall have a limited indemnity of not less than $10 million. The [first defendant] shall ensure that any subcontractor used by him shall have in force a similar liability policy noting the [first defendant] and the [second defendant] as Principals. (b) . . ." 174 The second defendant alleged that by reason of the provisions of clause 6, the first defendant was liable to indemnify it in respect of any liability it may have to the first defendant under the first defendant's cross claim against the second defendant and any liability it may have to the plaintiff for damages. The second defendant alleged further that it had asked the first defendant to take over conduct on its behalf of its defence of the proceedings commenced by the plaintiff pursuant to the agreement to arrange insurance but that in breach of that agreement the first defendant refused to do so or to arrange for the conduct of the second defendant's defence to be assumed by and at the cost of the insurer. 175 By the third cross claim the second defendant sued Boral Insurance Pty Limited ("Boral Insurance") alleging that a contract of insurance between Boral Insurance and Boral Limited (of which the first defendant is alleged to be a subsidiary) extended indemnity to the second defendant in relation to the circumstances in which the plaintiff claimed to have been injured and in relation to the proceedings brought by the plaintiff against the second defendant, including the first defendant's cross claim against it. The second defendant alleged that by reason of clauses 1, 3.1 and 8 of the policy, the second defendant was an "assured" and that in breach of the contract of insurance, Boral Insurance has refused or neglected to indemnify the second defendant in respect of the plaintiff's claim. The second defendant alleged further or in the alternative that by reason of s 48 of the Insurance Contracts Act 1984, the cover provided by the policy issued by Boral Insurance extended to cover the second defendant. 176 The defence to the third cross claim denied that the contract of insurance between Boral Insurance and Boral Limited extended indemnity to the second defendant. It also denied the second defendant was an "assured" within the meaning of the policy that it had issued. It denied that in breach of the contract of insurance it had refused or neglected to indemnify the second defendant in respect of the plaintiff's claim. Finally, it denied that the cover provided by the policy that it had issued extended to cover the second defendant by reason of s 48. (The extent of these denials must be taken to be limited or qualified in light of the concessions referred to below). 177 It follows from my earlier findings, that the second defendant is not a joint tortfeasor within the terms of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The first defendant has not established that the second defendant was either in breach of the terms of its contract with the first defendant or in breach of any duty of care owed to it by the second defendant. 178 The second defendant made the following submissions with respect to its cross claims (and as I have understood it, to its defence of the first cross claim). It submitted that there were two concepts expressed within clause 6. First, that the first defendant agrees to accept the whole of the risk of carrying out the contract and secondly that it agrees to indemnify the second defendant. In construing the clause the first concept informs the purpose of the balance of the clause and assigns the risk to the first defendant. As Kitto J said in Davis v Commissioner for Main Roads (1967-1968) 117 CLR 529 at 533: "The dominant purpose of the indemnity clause is announced by its opening words..."

[172]

179 The opening words of clause 6 are the same as the opening words in Davis. Menzies J, with whom Barwick CJ agreed, said at 537 that negligence of the party in the second defendant's position was the very thing to which the indemnity clause was directed. 180 The second defendant then submitted that the second concept has two aspects of operation. First, it provides for an indemnity in furtherance of the purpose of the assignation of the risk of the contract. Secondly, it provides for an indemnity, bearing in mind the party bearing the risk of the contract, where there is: (i) loss or damage (ii) arising out of or by reason of anything done or omitted (iii) intentionally or negligently (iv) in the course of the contract. 181 According to the submission, there is no issue in relation to (i). With respect to (ii), either the first defendant failed to sweep (something omitted to be done) or it placed too much aggregate on the road (something, in the sense of "anything", done). "Arising out of" would encompass performance of work generally under the contract and anything incidental to it. With respect to (iii), the first defendant either did or omitted to do the things mentioned intentionally or negligently. With respect to (iv), there could be no doubt that what was done or not done was done or not done in the course of the contract, which was the only explanation for the first defendant's presence at the site. 182 The second defendant argued that it follows, therefore, that the ordinary and natural meaning of the clause entitles it to an indemnity. According to the second defendant, given the fact that the parties agreed that the risk should lie with the first defendant, that is by no means a surprising outcome. The outcome accords with Davis. 183 For reasons put in the primary case, the first defendant did a number of things and omitted to sweep the road. Even if none of those things was done or omitted negligently, they were certainly done intentionally. For example, spray was sprayed intentionally, aggregate was spread intentionally and the road was not swept intentionally. The existence of an intention with respect to those matters, which were matters within the contract, means that the loss or damage suffered is the subject of indemnity under clause 6.

[185]

193 The second defendant submitted that it is either specified or referred to in the contract and hence has a right to recover its loss. It is entitled to be indemnified in one or both of the ways nominated. According to the submission, the extent of the indemnity would include the second defendant's costs on an indemnity basis irrespective of the outcome of the primary proceedings, any apportionment or otherwise. 194 Counsel for the first defendant also represented the third cross defendant. No separate submissions were made by the third cross defendant with respect to the issues raised in the third cross claim on whether or not the second defendant is an assured under the policy entitled to indemnity, including the payment of its costs, or on the operation in this case of s 48 of the Insurance Contracts Act. Submissions were, however, made by the first defendant in response to the second cross claim and, so it would seem, in response to the third cross claim as well. To some extent this tended to conflate the matters raised in defence of the second and third cross claims. Those submissions were as follows. 195 The first defendant conceded that the second defendant was entitled to indemnity because clause 3.1 of the policy engaged the second defendant and extended the benefit of the policy to it. (This concession did not seek to discriminate between either of the bases upon which the second defendant claimed the benefit of the policy, i.e. because of the terms of clause 6 or the operation of s 48 of the Insurance Contracts Act 1984). It follows from that concession that the second defendant is entitled to indemnity under the policy, subject only to consideration of the following submissions. 196 The first defendant argued that entitlement to indemnity was limited. It argued that clause 6 provided for a risk allocation to the first defendant, then for an indemnity in favour of the second defendant, in each case for negligent acts by the first defendant, and then for insurance to be arranged for those two identified purposes. The provisions of clause 6 relating to insurance are prefaced by the words "for which purpose", which operate, according to the first defendant, so as to limit the nature and extent of the insurance required to be obtained. That view is said to be reinforced by clause 6 (a)(iii), which restricts the obligation to insure to injury or damage "caused . . . by the contractor or his employees". 197 The first defendant submitted that the insurance, if it is to benefit the second defendant at all, can only respond to a liability for a negligent act or omission of the first defendant for which the second defendant is liable vicariously, or if it is not the same thing, because the second defendant is fixed with a non-delegable duty of care. The obligation of the first defendant pursuant to clause 6 is said to be the protection of the second defendant from claims arising out of or by reason of the negligence of the first defendant, and so to obtain a policy which includes "a Principal's indemnity noting the [second defendant] as Principal . . .". Whilst conceding that what is meant by "Principal's indemnity" is not entirely clear, being neither defined nor a term of art, clause 3 of the policy extends cover to the first defendant "but only to the extent required by such agreement to grant such indemnity". 198 In the first defendant's submission, this provides a very limited extension of cover. It is a cover in respect of loss or damage for which the first defendant is legally liable to a third party and which might also be visited upon the second defendant. The cover provided by the policy does not, on the first defendant's argument, extend to the second defendant's own negligent acts. 199 On the question of whether or not the second defendant was entitled to an indemnity from the first defendant having regard to the terms of clause 6, the first defendant again argued that the second defendant could not rely upon clause 6 only if it was, or at least to the extent that it was, itself negligent. 200 In the events that occurred, resolution of this dispute in the present case is of theoretical interest only. I have found that the second defendant was not negligent and no part of the first defendant's legal liability to the plaintiff was a liability that might also be visited upon the second defendant. 201 If it had been necessary to decide the issue it would have been my opinion that this is a case like Davis v Commissioner for Main Roads (supra) in which the contractor undertook the whole risk of carrying out the contract. The terms of clause 6 are clear and unambiguous. In the circumstances of the present case the first defendant undertook the whole of the risk of carrying out the contract and was required by the clause to hold the second defendant indemnified against, relevantly for present purposes, the costs of defending or settling any action or claim. This all arose out of what the first defendant did or omitted to do "in the course of the Contract". 202 The first defendant referred to Lipman Pty Ltd v McGregor & Ors [2004] NSWCA 6. However, Gzell J at [31] said: "[31] The clause is infelicitously drawn. The first head of indemnity must be read down. It could not have been the intention of the parties that the second respondent assumed liability for any liability of the appellant to the principal. There is no reason to suppose that the second head of indemnity should be given an extended meaning. This is not a case like Davis v Commissioner for Main Roads. " (Emphasis added)

Browning v Bitupave Limited

At a glance

Court

Decision date

Before

Source

Judgment (188 paragraphs)

Parties

Cases Cited (7)

Cited By (1)