Colavon Pty Limited trading as Thormans Transport v Bellingen Shire Council [2008] NSWCA 355 | Case summary

Colavon Pty Limited trading as Thormans Transport v Bellingen Shire Council [2008] NSWCA 355 | Case summary | Zoe

[14]

Circumstances of the Accident 6 The vehicle involved in the accident was a milk tanker. The road that it was travelling when it met its accident is a single lane road 3kms long called Billings Road. It leads to only two farms. One of those farms was at the relevant time a dairy farm, operated by a Mr Billings. The judge found that the road "is a dirt road with a gravel surface that is in places carved out of the side of a hill". At the place the accident occurred there was an embankment rising up on one side of the road, and an embankment falling away on the other side of the road. 7 Though there was a variety of evidence directed to the width of the road at the place the vehicle went over the edge, it was all dependent to some degree on estimation rather than measurement. The judge's finding was that the road was 3.6m wide at the most, and in some places narrower than this. There is no finding about the width of the road at the specific place where the tanker went over the edge. 8 The tanker was 2.5m wide, and its mirrors projected an extra 250mm on each side. It has three axles on the cabin, and three on the trailer. When fully laden it weighs 42.5 tonnes. 9 The Appellant was at the time the contractor to Dairy Farmers responsible for collecting milk from various farms and delivering it to a factory for processing. The accident occurred at 8:30pm on Saturday, 22 March 2003. It had been raining on the day of the accident although it was not raining at the time of the accident. The driver of the vehicle, Mr Mark Youdale, had driven the vehicle to the Billings farm, loaded milk into its tank, and was returning from the farm at the time of the accident. The collection of milk from the Billings farm was the last one of the day, and on the return trip the tanker was fully laden. When one is driving away from the Billings farm, as Mr Youdale was at the time of the accident, the embankment that falls away from the road is on the left-hand side. 10 Mr Youdale had worked as a tanker driver for many years. Mr Youdale was described by Mr John Thorman, the man who effectively controlled the Appellant, as "a top class driver". 11 Mr Youdale started collecting milk from the Billings property in about February 2001, when Mr Billings ceased dealing with Norco and began dealing with Dairy Farmers. He collected milk from the Billings property approximately three times a week. He had made about 300 journeys to the farm and back again, and thus had driven the vehicle along Billings Road "probably in excess of 600 times before the accident". 12 On the Thursday night before the accident happened, on his way into the Billings property, he noticed on the right-hand side as he drove in (ie the side that would become the left hand side as he drove out) that there were a couple of truck tyre marks. He described them as "what we call dual tyre marks, yeah, pushed into the ground, yeah." 13 On the night of the accident, as he was driving into the Billings property, he noticed the tyre marks again. On the trip out from the farm he felt the truck starting to pull to the left, was unable to correct it, and it rolled over.

[16]

Mr Knight's Report 15 On 27 March 2003 Mr W Knight, the Works Manager of the Council prepared a report to the Administration Manager of the Council, in response to a police request for an engineering assessment of the road at the location that the tanker overturned. He had attended the site of the accident on the day after the accident occurred, to inspect the site. That report included: "A check of Council's Service Request system and relevant files (L.9714 and R.1-133) indicated that there were no reports of problems associated with localised soft edges along Billings Road. Following the incident with the milk tanker Council carried out some widening of the cut batter opposite the location where the subsidence occurred to provide additional width and installed 3 guide posts on the embankment side of the road so that traffic would be able to pass clear of the localised verge subsidence." 16 He reported: "The edge of the gravel pavement is not clearly defined and loose material from the gravel pavement surface has spread over the verge. There is some low vegetation growth along the verge. The wet weather at the time of the incident would have contributed to the softening of the verge. Council's Dorrigo Overseer, Mr Norm Johnsen, has advised that one of the property owners along the road, Mr Tim Billings … indicated, after the milk tanker incident, that a truck delivering grain to his property during the week preceding the milk tanker incident encountered a localised subsidence at the location where the tanker overturned. This subsidence was not reported to Council." 17 Mr Knight was not called as a witness. While I deliberately refrain from expressing any concluded view on it, inferences that might possibly be drawn from the way he expressed himself in this report are that he saw practical point in recording that the Council's records contained "no reports of problems associated with localised soft edges", and that he was of the view that it was the verge of the road that subsided.

[18]

Mr Shipway's Report 21 The Appellant tendered reports from three experts. One of them was from Mr Ian Shipway, a geologist from Coffey Geosciences Pty Ltd. He visited the site of the accident on 16 April 2003 and investigated the surface condition, but not the subsurface conditions, of the road and the banks on either side of it. He said that the repairs conducted by the Council after the accident: "… appear to have involved widening the roadway by cutting into the uphill face, placement and shaping of some fill on the crest above the downhill face, and installation of guideposts above the crest of the slope." 22 His observations of the ground conditions included: "The materials in the cut face comprise an upper zone of loose boulders in a soil matrix, over a lower zone of granite blocks separated by joints and seams of soil strength material. We identified several sets of persistent defects within the rock mass. The most well defined of these defect sets dips down to the east at about 40º and may define the natural angle of slope. This set included zones of extremely weathered granite (a soil in engineering terms) up to 300mm thick. Some staining was evident suggesting past movement of groundwater, but no seepage was observed. Materials forming the surface of the lower slope appeared to comprise a mixture of rock fragments and soils with the remains of some fallen trees. Some fill appears to be present at the crest of the slope, but the extent is difficult to assess without subsurface investigation. Projection of the line of the upper slope to the crest of the roadway suggests that some fill may be present (as shown on the attached field sketch), but this cannot be considered to be conclusive. The observations above relate to the condition of the slope after the completion of repairs and maintenance by Council. We have no way of knowing how representative these conditions are of those prior to the incident." 23 His opinion concerning stability of the slope was: "The natural slope of the hillside of about 40º appears to be at least partly controlled by the angle of the main set of defects in the rock mass. Some of these defects consist of soil strength seams, which if saturated would have an angle of friction (similar to the angle of repose) less than that of the overall slope. Consequently, instability in parts of the slope could be triggered by ingress of water from rainfall. The potential for such instability would be exacerbated by a surcharge loading from above. We noted above that there is the potential for soil fill beneath the crest of the embankment. Good engineering practice in such circumstances generally requires that soil fill is placed with a batter slope no steeper than 2H:1V (27º), and is keyed into the natural slope below in series of horizontal benches. Fill placed at the observed angle of about 45º could exhibit instability under a relatively modest surcharge load, particularly if ingress of water had occurred prior to loading and the fill was not keyed into slope." 24 He expressed the view that there were two possible mechanisms by which the embankment could have failed: "1. Filling placed at the edge of the embankment failed when the truck surcharged the crest of the slope. 2. The crest of the embankment slipped along a defect in the rock mass when surcharged by the truck. In either case the crest of the embankment is likely to have been close to failure prior to the truck passing over the failure zone. This meta-stable condition may have been caused by ingress of water into the slope either from rainfall seeping through the unsealed roadway, or from groundwater originating from further upslope. Whilst we understand that the edge of the roadway moved under the load imposed [by] the vehicle, there is the possibility that part of the crest of slope may have failed prior to its arrival. Research into rainfall records for the month leading up to the incident may be beneficial in establishing whether saturation of the embankment crest could have occurred." 25 He reported: "The width of the roadway in most of the repaired section is about 4m, although we measured widths as narrow as 3.4m towards the north western end." 26 He included a diagrammatic cross-section showing potential failure mechanisms. It showed the tanker with its wheel closest to the downhill slope resting on a "possible zone of overly steep soil fill which may have become wet and failed". 27 Mr Shipway concluded: "Information provided by Signature Investigations indicates that the truck had a gross mass of 43 tonnes and a wheel base of 2.4m. Assuming that at the time of the incident the road was about the same width as it is at present, there may have been as little as 0.5m clearance either side of the wheel track of the tanker truck. Under such circumstances the truck may have difficulty avoiding the crest of the road, even if the driver was aware that it may have become weakened." 28 Mr Shipway was not supplied with photographs that had been taken of the road on the day after the accident. 29 Mr Shipway's report was tendered without objection, and he was not required for cross-examination.

[19]

Mr Hazel's Reports 30 Mr Bruce Hazel, an engineer with particular experience in road design and construction, expressed the view that on Billings Road: "… in many places the slope of the downhill batters or embankment batters are too steep for safety and were bound to fail at some stage. …. Billings Road is of such a low standard as to be unsuitable for use by very heavy tankers such as [the vehicle involved in the present case]. The use of such tankers increases the risk of slope failure. This risk increases during extended periods of wet weather." 31 Mr Hazel said that the cause of the collapse was slip circle failure of the embankment: "The cause of this is that the loads on the road surface plus the soil loads causes stresses in the soil which exceed the sheer strength along the slip circle. Hence failure occurs and part of the embankment slides downhill. When heavy vehicles are called upon to travel close to the edges of embankments the probability of failure is increased." 32 Within two days of the accident occurring, the Council had removed a part of the uphill embankment at the site where the vehicle had gone over the edge, thereby increasing the available pavement width. Thus Mr Youdale was able to go to the Billings farm to collect the milk on the Monday following the accident. A Council record notes that work of "road widened - regravelled - g/posts" was completed by 27 March 2003. Mr Hazel measured the available pavement width after this modification to the uphill bank had occurred as being 3.6m. The Council also installed three guideposts at that site, on the side where it sloped downhill. The cost of the modifications to the uphill embankment was $2,910. The evidence about the cost of the guideposts was that they would cost about $40 or $50 each. 33 Mr Hazel expressed the view, in a report of 7 October 2006 that: "The installation of the guideposts prior to the accident may well have been an inexpensive way of improving the safety by keeping vehicles away from the edge." 34 In that report he also stated: "With guideposts placed 1 metre inside the outside edge and vehicles advised to stay close to the uphill side the safety could have been improved. However with continued use by very heavy vehicles this may not have stopped the slope from eventually failing."

[21]

Mr Stuart-Smith's Report 40 The Council qualified one expert only, Mr Roger Stuart-Smith, a traffic engineer. He was provided with the reports of Mr Hazel and Dr Yeaman, and the statement that Mr Youdale had made to the insurance inspector on 3 April 2003. He also made a site inspection. His report said: "It is likely that, over the years of the road being used, maintained and resurfaced, pavement material has migrated to the side and spilled over the eastern downslope, causing a slight building-up of less well compacted fill material on this side of the formation. The author was also able to detect soft material in this area, consistent with material migration from the surface. The likely fill material on the side of the road would have had a slope in excess of the natural slope. This characteristic can be seen at locations of the road that were unaffected by the slippage. It is possible that this softer fill has been gradually incorporated into the overall formation width to some degree as a result of continuous use over a long period of time. However, given the steep terrain and steep accumulation slope of the fill, it could be expected that the edge of the formation was not compacted to the same extent as the original formation cut into the hillside." 41 His hypothesis about pavement material migrating to the side is consistent with the observation of Mr Knight, immediately after the accident, that "loose material from the gravel pavement surface has spread over the verge". 42 Mr Stuart-Smith included a diagram of a probable cross-section of Billings Road. It showed the horizontal surface between the outside wheel path and the commencement of the downhill slope as consisting of "fill material (possibly not fully compacted)". 43 He estimated, from photographs taken on the day after the accident, that "the overall width of slippage of the carriageway and adjacent fill appears to be up to 0.6m". He expressed the view that the likely width of initial slippage was less than 0.6m, because the amount of slippage that was eventually evident arose partly from the lateral movement of the vehicle to its left, after the initial slippage, resulting in "the new edge of the intact pavement being scoured and dragged down the slope with the semi-trailer". He expressed the view that "there is a reasonable likelihood that the complete left wheel path was initially unaffected by the slippage". He says: "Since it was likely that only the part of the formation between the left wheel path and the edge of the embankment initially slipped, the semi-trailer was most likely travelling on the fill material on the very outside of the overall formation." 44 Mr Stuart-Smith recognises that having the semitrailer travelling in that position is inconsistent with the statement that Mr Youdale made to the insurance investigator: "… that he "moved across" (to the right as he approached). Had Mr Youdale travelled as close as possible to the cliff, he would have travelled on the unaffected surface shown in the photographs and most likely would not have slipped." 45 It will be recalled that Mr Shipway had proposed two mechanisms by which the collapse could have occurred (para [24] above). Mr Stuart-Smith said, concerning those two mechanisms: "Based on the nature of the constructed roadway, it is the author's view that the first option was the most likely mechanism causing the slippage. There is no evidence that the second mechanism (involving a rock mass defect) was the case. The photographic evidence is more consistent with failure of the "filling" at the edge of the embankment. Whilst symbolically likely to be correct, the diagram provided by Coffey Geosciences Pty Ltd … is potentially misleading. The photographic evidence shows the main wheel paths to be intact after the slippage occurred. This is not apparent in the diagram. The diagram does not show the correct relationship between the natural and the cut slopes. As a result, the gap between the tanker and the cliff was likely to have been under-estimated. … Notwithstanding these variations in presentation, the author is in agreement that the semi-trailer surcharged the edge of the fill area (noted in the Coffey Diagram as steep soil fill), causing it to slip."

[24]

Evidence Concerning Council's Knowledge of Road Condition 48 Prior to February 2001 Mr Billings supplied his milk to Norco. Originally Norco collected the milk in rigid vehicles which had a gross weight when fully laden of 20.4 tonnes. In 1995 it decided to commence collecting the milk in larger tankers that were articulated vehicles. In May 1995 Norco wrote to the Council advising of this proposed change. On 6 June 1995 Norco wrote to the Council again, stating that a recent survey had "disclosed problems involving Council roadways particularly in the Dorrigo area". That letter attached "a list of roads, intersections and bridge approaches that will need roadworks to enable safe and reliable articulated milk tanker passage". There was a list of 14 roads, one of which was: "Billings Road from Prakes Road to Little Falls Creek Bridge along the Beilsdown River will need to be widened for access to TJ & VG Billings." 49 A meeting of the Council on 20 June 1995 resolved: "… that Norco be informed that Council does not have the funds to upgrade the roads in the manner requested and that Council takes exception to the short notice given of the proposed changes." 50 The General Manager of the Council wrote to Norco on 27 June 1995 saying: "The reality is, that Council simply does not have the financial resources to effect the improvements suggested following the survey by Norco personnel and the successful contractor." 51 He suggested that if Norco could make the funds available for the work, the Council would be able to carry them out. 52 Norco had, by September 1995, identified to the Council three particular locations where it had problems. One of those locations was "widening of a narrow cutting along a section of Billings Road". The Council's estimate for the cost of that work was $10,000. The Works Manager, Mr Knight, reported on that request to the Council, and made a recommendation: "1. That Council reconsider the priority of upgrading works to alleviate problems with milk tanker deliveries; 2. That the three (3) projects as listed in the report be included in the Shire Roads Upgrading Programme, and that the Works Committee review the priority of works at its next meeting." 53 At the Council meeting on 19 September 1995 a motion was carried that Norco be requested to make a fifty percent contribution towards the cost of the works. Norco was informed of that request, but on 3 November 1995 declined to provide the money. 54 In December 1995 Mr Andrew Fraser, the local Member of State Parliament, wrote to the Council, at Norco's instigation. His letter spoke as though the requested works were road maintenance, and he requested the Council to carry it out. 55 Mr Doyle, the General Manager of the Council, replied to Mr Fraser in January 1996, saying that there was no flexibility in Council's budget to meet unexpected costs, and that the works were construction projects, not maintenance. That letter described the work involved as being: "Billing's Road - widening of cutting, up to five metres high, including the removal of the spoil from the site to a location to be determined and duly approved. Land acquisition matters had not been fully investigated. Works are required to enable the tanker adequate road pavement width." 56 That letter shows that by January 1996 the Council was aware that the vehicles Norco was using to collect the milk were tri-axle tankers, that weighed 42.5 tonnes laden. 57 The General Manager's report to a Works Committee meeting on 13 February 1996 recommended: "2) That Council determine which project(s), as requested by NORCO, may be added to the Priority List of Shire Road Improvement Works. 3) That Council reaffirm its earlier decision not to upgrade any of the Norco requested works until Norco contributes 50% of the cost." 58 The last Council resolution in evidence is one of 20 February 1996: "That it be noted that Council is unable to fund the requested road works to accommodate the articulated milk tankers on the plateau;" 59 A Priority List of Shire Road Improvement Works dated 5 February 1996 includes an item for "widening of milk tanker collection routes", but the column of that list headed "Plans" has a dash in it, and the column to show the estimated cost included in the allocation for 1995-96 was blank.

[26]

The Appellant's Case as Presented Below 65 It is common ground in counsel's addresses in the court below that the cause of the road collapsing was slip circle failure. The way in which Mr McGillicuddy, counsel for the Appellant in the court below, put that proposition was: "… what we say, that [is] what Mr Stuart-Smith says, and it becomes a question of semantics as to where the slip circle failure occurred. Mr Smith in his report agrees it was like a slip circle failure, but he says it was at the edge of the road, that soft edge that failed, it wasn't - he seems to distinguish between the pavement itself and that edge." 66 Later in his address, he put it this way: "Where the experts do agree is that there was slip circle failure. The question is what part of the road failed? Was it - Mr Stuart-Smith draws the distinction between pavement, a solid pavement which is compacted and a soft edge." 67 Both Mr Hazel and Dr Yeaman had expressed the view that the road was so dangerous that the Council should not have permitted vehicles as heavy as the vehicle involved in the present case to use it. By the time addresses came, Mr McGillicuddy was no longer relying on a case put that way, as cross-examination had established that the Council could not enforce any such restriction. 68 Mr McGillicuddy submitted to the judge that "there was a soft edge and we say it's a soft edge that failed". He also submitted that: "… as at that period from approximately September '95 when Mr Johnson went out and inspected and he would've been aware of the soft edges, the narrow width of the road, the semi articulated vehicles ... … the Council were aware, are aware that the road was narrow, it's a gravel road, soft edges built up by grading the road, they're aware that there is potential damage to the pavement and so on and so forth." 69 Mr McGillicuddy submitted to the Judge that the pre-accident width of the road was somewhere between 3.2m and 3.6m. He went through the arithmetic, whereby when the evidence was that the tanker was 2.5m wide, if the road was 3.2m wide there would be only 350mm of clearance on either side of the truck, while if the road was 3.6m wide there would be 550mm on either side of the truck, assuming in each case that it was in the middle of the road. (Those clearance figures are obviously less if one allows for the mirrors on the truck, even recognising that it was only the mirror on the uphill side that would require a clearance of its own and, depending on the steepness at which the bank rose, that extra clearance might be less than the 250mm width of the mirror itself.) Mr McGillicuddy referred to Mr Youdale's statement concerning the manner in which he drove immediately before the accident, and, in relation to the tyre marks on the road: "What Mr Youdale said was that he attempted to steer away from them, but because the width of the road was so narrow he couldn't really be absolutely sure that he would have missed them. That's in para, either 16 or 17 of his statement. So when he's coming back out, he tries to steer clear of them, whether he did or not is questionable because of the width of the road." 70 His submissions included: "… by grading the road on a regular basis, they have inadvertently created an unusual danger, being the soft edge at the side of the road. Just in simple terms, what I say and I'll take it, it steps on, the simple way to avoid that, having created that danger, is to put guide posts in to take people away from that soft edge." 71 Mr McGillicuddy submitted that the present was a case of misfeasance, rather than nonfeasance, because the Council had created the danger by the manner in which it graded the road and contributed to the soft edge. Hence, he submitted, section 45 Civil Liability Act did not apply. Another strand of his argument was that in any event the Council had knowledge of the soft edges, so section 45 would not protect it. He submitted that the comparatively small cost of the modifications that the Council actually made to the road immediately after the accident showed that making modifications of that type was a reasonable response to the known danger. He submitted that installing guideposts was appropriate in light of the Council's knowledge of the soft edges, that a guidepost would have kept the vehicle from the soft edge. He also submitted: "If it turned out that as a result of putting in these guideposts that a truck could not fit through, then that's what it would mean, a truck could not fit through. Now, if that was what it meant and we don't know because it's hard to know if a truck could have got through when you put guideposts there. But keep in mind your Honour, when they repaired this road after the accident, it cost them $2,910 and that included widening the road, not just putting in guideposts. So if doing their job responsibly, having been involved in creating this soft edge, if they put in guideposts - it appeared when the guideposts went in delineating where the soft edge was, and that this would be a danger to semi-articulated vehicles, which they were aware of and I take you back to a letter from Mr Doyle to Mr Fraser dated 10 January '96, then the next question is, well how much more would it cost to just take out the edge, take out that embankment which as at - the estimate that the Council put on it back in '95 was $10,000. Now I'm not saying they had $10,000 in their pocket to do it, because they asked Norco to contribute 50 percent and Norco said no. Inferentially it might suggest that the Council either had $5,000 or was in a position to try to find $5,000 in 1995 to do the works that were required as at that date. In fact we know that after the accident it cost them $2,910. So we're not talking about rebuilding a road, we're talking about warning people, having created the danger."

[27]

The Judgment Below 72 The judgment below, excluding its heading, is seven pages of double-spaced typing. After a page and a half of statement of basic facts that are uncontentious (save for the clearly inaccurate statement that Mr Youdale had collected milk from the Billings "between 1995 and the time of the accident") there appears a two-page section headed "the Experts Reports". I set it out in full: "11 It is common ground that the technical description of the road collapse was due to slip circle failure and this was initiated by the mass of the plaintiff's truck, which I find and is also accepted, was at or near its forty two and a half ton full weight. 12 There were three experts who were called upon to give an opinion on this and they were Mr Hazel, Dr Yeaman and Mr Stuart-Smith. Dr Yeaman was quite firm in his view that the road was totally unsuitable for such heavy vehicles. In fact, he believed that the road should be restricted to light vehicles. 13 After having the RTA Heavy Vehicle Drivers' Handbook pointed out to him, that allows heavy vehicle drivers to disregard signs forbidding use of the road when they are making a pickup or delivery in the road in question, Dr Yeaman quite rightly conceded that in the circumstances of the milk pickup in Billings Road the driver would be entitled to lawfully disregard the sign and continue to use the road. 14 However, it was his view, since he came to the conclusion that the road was totally unsuitable for heavy vehicles, that no heavy vehicles ought to be allowed and that only passenger vehicles or station wagons and utilities should be allowed. 15 The experts were also unanimous in believing that the total reconstruction of the road for this one property could not be justified on economic grounds. To make it suitable for the kind of vehicle that the milk tankers were, would be prohibitively expensive. 16 There was a suggestion that guards or rail guards should be put in place. However, the driver, who, as I've said, was a perfectly truthful witness, said that he had traversed the road six hundred times and he didn't need any guidance from signs saying "Soft Edges" or railings. He was perfectly capable of negotiating the road himself. 17 I'm not convinced that the plaintiff has proved on the balance of probabilities that the defendant has breached a duty of care owed to the plaintiff. I'm not satisfied that any reasonable remedial action taken by the defendants could have averted the accident. 18 I find that a total reconstruction of the road would have been prohibitively expensive. 19 I am conscious of the fact that the owner of the cartage business has now made Mr Billings the first pick up, that is to say, he has reduced the weight of the vehicle to its unladened weight, rather than the last pick up. 20 He continues to use that road to pick up Billings' milk in a semi trailer. 21 Dr Yeaman is of the belief that it is bound to happen again; one cannot say that the owner is not on notice." 73 By the time of addresses, it was no longer a live issue that there should have been a sign forbidding heavy vehicles from using the road, and it had never been any part of the Appellant's case that total reconstruction of the road should have taken place. No expert suggested that, "guards or rail guards should be put in place". Rather, both Mr Hazel and Mr Stuart-Smith had suggested the installation of guideposts. No submission was put that guards or guard rails should have been put in place. 74 The Judge did not deal in the section headed "the Expert Reports" with Mr Stuart-Smith's opinion that it was a soft edge, rather than the pavement itself, that failed, nor with the expert evidence that guideposts were a reasonable way of keeping vehicles away from the soft edge. 75 If para [17] of the judgment were intended to be a conclusion based upon the reasoning that had preceded it in the judgment it would manifestly not follow, and the judge's reasons would clearly be inadequate. However, I shall proceed on the basis that para [17] is intended rather to be the announcing in advance of a conclusion reached by reasoning appearing later in the judgment. 76 In another section of his judgment headed "Liability" the Judge said that Mr Youdale "gave excellent evidence and he was a person of peerless credit". In that section of the judgment he said: "28 The plaintiff put an alternative hypothesis, that it was the soft edges that had built up over the years (as a result of the regular grading of the road); it came to a point that when the driver drove on it and it became unsafe, and that guide posts would have prevented the driver from going over the edge. 29 The driver denied this. 30 He said that he could see the edge all of the way and that he kept as far to the mountain side as he could, rather than the drop off the side. 31 However, the vehicle was pulling to the left and he had a struggle to keep it to the right. 32 In the end it came down to a question of costs. The plaintiff's experts believe that the only way of rectifying the road would be by completely rebuilding it. It wasn't put in any other way, other than that this would be too expensive for the council and it was an unreasonable burden on the defendant's ratepayers. 33 The defendant used the solution of Mr Hazel, that it would require various agencies of the state to alter legislation to address the problem, if Mr Billings was to continue to have his milk picked up by semi-trailer tankers. 34 Indeed, I'm not sure if the grain trucks that are referred to in the evidence are bringing in grain to feed the cattle or transporting harvested grain. Whatever is the case, there are grain trucks using the road and the driver, Mr Youdale, said that these are heavier than the milk truck. 35 I find that the defendant owed a duty of care to reasonable road users. 36 I find that the use of the road by the plaintiff was unreasonable due to the sheer mass and poor manoeuvrability of the articulated forty two ton semi-trailers. 37 I find that it would be unreasonable to expect the defendant to completely reconstruct Billings Road because of the great cost to the ratepayers. 38 I further find that signs prohibiting access would be ineffective. 39 I find signs alerting the plaintiff to soft edges or railings denoting soft edges would have not averted the cause of actions because of the familiarity of the plaintiff's driver to the road. 40 I find, therefore, that the defendant did not breach a duty of care owed to the plaintiff." 77 The way the Appellant put its soft edge case was not really an "alternative hypothesis" to the evidence that the accident was caused by slip circle failure. Rather, Mr McGillicuddy's case was that there had been a slip circle failure, but occurring in a soft edge. 78 It is not clear what the "this" was in the finding "the driver denied this", in para [29] of the judgment. Mr Youdale gave no evidence about whether soft edges had built up over the years (whether as a result of the regular grading of the road or in any other way), and gave no evidence specifically directed to whether guideposts would have prevented him from going over the edge. The only mention of guideposts by Mr Youdale was in re-examination: "Q. What do guideposts on the side of the road mean to you? A. That you keep to the road side of the guideposts."

[28]

Mr Youdale's Evidence 79 Evaluating paras 16, and 29-31 of the judgment requires a closer examination of Mr Youdale's evidence. Mr Youdale was called as a witness by the Appellant. His evidence in chief about how the accident occurred was: "Q. As you drove back out, the tyre marks being on the downside slope, would have been on the passenger side of the truck? A. That's correct, yeah. Q. So the driver's side, you're up against the uphill slope of the road or cut? A. That's correct yeah the cutting, yeah. Q. Was there vegetation on the side of the road? A. Yeah, both sides, yes. Q. And so as you were driving along you were what concentrating on your mirrors, keeping them within the road and missing vegetation? A. I was just driving along, yeah. Q. Did you look out for these tyre marks? A. I don't recall looking out for them, no. Q. Tell his Honour what happened. A. Well I was casually driving along making my way back out to the bitumen and I felt the truck start to pull to the left and you know I mean it all happened fairly, well it probably seemed long at the time, but it all happened fairly quickly, the truck was pulling to the left, I didn't really know why and I was trying to correct it to the right and then within a few seconds or whatever, the tanker rolled." 80 In cross-examination Mr Youdale said: "Q. As you drove in on each occasion you could see how wide the road was? A. Yes. Q. You had no difficulty with that did you? A. No. Q. You didn't need anyone to tell you how wide the road was did you? A. No. Q. You could see that the road had been cut into the hillside? A. Yes. Q. And you could see on the downside that there was an edge to the road? A. Yeah. Q. You could see that couldn't you? A. Yeah. Q. As you drove in and out the edge of the road was clear to see wasn't it? A. Yes. Q. You didn't need anyone to tell you where the edge of the road was did you? You could see it? A. Yeah. Yeah, there was vegetation growing up to it, saplings, and. …. Q. And I take it as you drove in and out you were reasonably acutely aware of keeping away from the edge of the road? A. Yeah-- Q. When I say the edge of the road I mean the downhill edge of the road? A. Yeah. Q. That's right? A. Yeah. Q. You didn't need anyone to tell you to keep away from the edge of the road did you? A. No." 81 In cross-examination he also said: "Q. So the position then is, as you left the Billings' property on that night you saw these tyre marks which you took to be a soft area of the road? A. Hmm. Q. You moved your vehicle to the right? A. Hmm. Q. As close as you could to the bank? A. Hmm. Q. To avoid those marks? A. Hmm. Q. When you've said, "Hmm"? A. Yes. Q. All those "Hmm's" I take it are yeses? A. Yes, sorry. Q. That's what you did? A. Yeah. Q. And that's what you'd done-- A. I mean I'm not saying that I had the mirror dragging along the other side bank. Q. I understand that. A. I moved to what I thought would have been far enough to be clear of the - well to stay on the road." 82 A few questions later the cross-examination continued: "Q. Again, you moved towards the bank away from the tyre marks? A. Yes. Q. And you did that because you were attempting to avoid what you perceived-- A. Well there wasn't much road on the other side of those tyre marks. Q. I understand that, but you're moving as far-- A. So you're certainly not going to move left. Q. Yes. But you were moving as far as you could possibly move to the right to avoid the soft area? A. Hmm, yes. Q. You didn't need anyone to tell you to move to the right? A. No." 83 His cross-examination also included: "Q. … I think you described this road as "a typical narrow, gravel country road cut into the side of a hill" ? A. Yes. Q. On such a road you don't need to be told that the edges can from time to time be soft? A. No, that Dorrigo Mountain is notorious for it, yeah, [bits] fall off it all the time. Q. And I take it when the road is wet it indicates to you that it's been raining? A. Yes, yeah. Q. And the time that the edges of the road often are softer than other times, is after rain? A. Mmm. Q. Is that yes? A. Yes. Q. Sorry -- A. Yes I should image so, yes. Sorry. Q. So you didn't need anyone to tell you as you drove along Billings Road that the edges of the road at times were soft? A. No, no. Q. You didn't need a sign up saying, Mr Youdale, the edges on Billings Road might be soft if you go too close to them, did you? A. No. Q. You knew that? A. Yes." 84 The judge's finding that Mr Youdale said he kept as far to the mountainside as he could has a basis in the evidence Mr Youdale gave in response to leading questions in cross-examination. But that cross-examination was on behalf of the Council. Other parts of Mr Youdale's oral evidence do not have the same flavour of keeping as close to the uphill bank as possible. His statement to the investigator (para [19] above) talked about "automatically" moving across towards the bank, but it did not talk about, on the trip out from the Billings farm, driving as close as possible to the bank. His own perception of his manner of driving was that when he felt the vehicle start to pull to the left, he thought it was a realistic possibility that in fact he had not succeeded in avoiding the wheel tracks.

[29]

Did the Judgment Deal with the Submissions? 85 It was part of Mr Stuart-Smith's opinion, on which the Appellant relied below, that Mr Youdale must have been mistaken in saying that he moved across towards the bank. That opinion of Mr Stuart-Smith was based upon an analysis of the photographs that were taken the day after the accident. Of those photographs, ones that were tendered as exhibits C1, C2 and C3 show tyre tracks that go along the road for some distance, then disappear over the edge of the downhill embankment. The Judge gave no consideration to whether those tyre tracks provided a basis for not concluding that Mr Youdale "kept as far to the mountain side as he could". 86 As well, the judge says nothing in his reasons about the submission that the extremely narrow clearances meant that there was a real possibility of even a good driver like Mr Youdale coming to be too close to the edge. 87 While it is true that the Appellant's experts believed the only way of rectifying the road would be by completely rebuilding it, the case that the Appellant put to the Judge at the end of the trial was not based on the views of its own experts, apart from possibly Mr Shipway and one aspect of Mr Hazel's evidence. Further, there was no live issue about whether there should have been signs prohibiting access. To the extent to which the reasons for judgment dealt with the topic of reconstruction of the road, or signs prohibiting access, it was dealing with matters that were no part of Mr McGillicuddy's final submissions. Rather, the Appellant's case was founded primarily on the views of Mr Stuart-Smith. There was a submission put to the Judge that the Council should have installed guideposts, and that if installation of the guideposts did not leave enough road width for a tanker to pass along then it should also have removed some of the uphill embankment. The Judge did not deal with that way of putting the case. 88 In the course of address the following exchange occurred between the judge and Mr McGillicuddy: "HIS HONOUR: Is anyone, any of the experts said getting it graded to widen the road as they did do was the solution, has anyone said that that was a solution? Aside from that's the fact, but has any of the engineers saying that's a solution? McGILLICUDDY: Well I think Mr-- HIS HONOUR: None of them, they've all gone for more drastic solutions. McGILLICUDDY: Well the plaintiff's experts, Dr Yeaman and Mr Hazel, have the drastic solutions-- HIS HONOUR: Well they're the only experts in your case. McGILLICUDDY Yes, that's right. Mr Stuart-Smith says there's no pavement failure here, what failed was the edge of the road which was caused by or created by - the soft edge of the road which was created by, on the balance of probabilities, grading of the road on an annual basis and pushing the soft dirt to the side." 89 The judge's remarks in that exchange seem to be echoed in his observation, in para 32 of the judgment, that "the plaintiff's experts believed that the only way of rectifying the road would be by completely rebuilding it. It wasn't put in any other way …". 90 It is true that the submission that the Appellant put was not based on its own expert evidence, except to the extent that Mr Shipway's report had identified one possible "mechanism of failure" of the type the Appellant ultimately relied upon, and Mr Hazel had favoured the use of guideposts. However, a plaintiff is entitled to rely in submission on any evidence that has been given in the course of the trial, in support of any issue that arises on the pleadings, or that has in fact been litigated in the course of the trial.

[30]

Were the Appellant's Submission Open to it? 91 Mr Polin, counsel for the Council on the appeal, submits that, in light of the pleading and the course of the trial, it was not open to the Appellant to put the submissions that it ultimately sought to rely upon at the hearing, and hence it was of no significance that the judge had not dealt with those submissions. That requires some attention to the pleadings, and the manner of conduct of the trial. 92 The Particulars of Negligence in the Second Amended Statement of Claim included allegations that the Council: "(h) Regularly graded and maintained Billings Road, Dorrigo concealing an unsafe road; (i) Regularly graded and maintained Billings Road, Dorrigo so as to leave road users with the impression that the road was being properly maintained and was safe in the absence of any warning to the contrary; … (l) Failed to install guide posts to guide heavy vehicles away from the edge of the downhill slope particularly at night and/or during wet weather. (m) Failed to install guide posts in the vicinity of the accident site to guide heavy vehicles away from the edge of the downhill slope particularly at night and/or during wet weather. … (p) Failed to widen Billings Road to protect the integrity of the downhill slope and in the absence of widening Billings Road failed to impose load restrictions on Billings Road and prohibit use by heavy vehicles. … (t) Failed to warn users of the road that the road had soft edges." 93 The Appellant tendered evidence at the hearing, without objection, of Council records relating to the work the Council had done on the road over relevant years. Those records established that the following work had been done on Billings Road: March 1988 Graded and rolled March 1989 Graded March 1991 Graded and rolled February 1992 Graded and rolled December 1992 Graded 1993 Graded and rolled August 1995 Graded and rolled June 1996 Graded November 1996 Graded July 1998 Graded April 1999 Graded May 1999 Placed gravel July 1999 Patch gravelled April 2000 Graded and rolled February 2001 Graded and rolled March 2002 Graded and rolled December 2002 Graded and rolled

[31]

94 The Appellant also submits that two loads of gravel were placed on the road in March 2001. I would not conclude that the records of the Council lead to that conclusion. There is a record of work done by Council staff on 19 March 2001 that states that several workmen were engaged in work called "move slips MR 120", and another workman was engaged in work recorded as "two loads gravel 120 backhoe Billings" 95 I would infer from the Council's documents that each road is given a number. Billings Road is road number 1133. I would read the entry relied upon as saying that two loads of gravel were placed on road number 120, not on Billings Road. Mr Knight's report of 27 March 2003 identifies Coramba Road as being main road 120. 96 During the cross-examination of Mr Stuart-Smith the Appellant was seeking to advance the case that it ultimately put to the Judge. Mr McGillicuddy questioned Mr Stuart-Smith concerning the means by which the road material came to be accumulated on the outside edge of the road. In particular, it was suggested to Mr Stuart-Smith that in the normal process of grading the road excess loose material would be pushed to the side of the road, and that that provided one explanation for how the batter may have been created in the present case. Mr Stuart-Smith was cross-examined concerning the purpose of having guideposts. His cross-examination included: "Q. And the effect of the guideposts would be to keep vehicles away from that soft edge? A. It would have - yes, I think so. I think it would have - a driver would have been more likely to have driven further away from the guideposts than otherwise." 97 Section 45 Civil Liability Act 2002 provides: "(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (2) This section does not operate: (a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or (b) to affect any standard of care that would otherwise be applicable in respect of a risk. (3) In this section: carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993 . roads authority has the same meaning as in the Roads Act 1993 ." 98 If a plaintiff wishes to put a case that a roads authority is liable for harm arising from a failure to carry out road work or to consider carrying out road work, the plaintiff must assert and prove facts that take the roads authority out of the immunity that section 45 creates. The facts by virtue of which the plaintiff seeks to establish that the roads authority "had actual knowledge of the particular risk the materialisation of which resulted in the harm" are facts that must be established before the plaintiff's cause of action is complete. Thus they are "material facts" within the meaning of UCPR 14.7, and hence must be pleaded. 99 In Porter v Lachlan Shire Council [2006] NSWCA 126 at [41] Hodgson JA (with whom Beazley JA and Giles JA agreed) said, concerning section 45: "When a plaintiff alleges actual knowledge of something in a defendant, the defendant is entitled to particulars of any communication of that information that the plaintiff relies on, and if the actual knowledge is alleged by the plaintiff to be a matter of inference from certain circumstances, the defendant is entitled to particulars of the circumstances relied on." 100 There was no pleading by the Appellant that the Council had knowledge of any condition in the bank that made it prone to failure. While a submission was put that the Council's grader driver would inevitably know that the way he had carried out the grading had caused gravel to go over the edge, the evidential base for that submission arose only indirectly and tangentially in the course of the trial. It could not be said to be an issue that had been litigated, even assuming for present purposes that the knowledge of the grader driver would count as knowledge of the Council for the purpose of section 45 (cf North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240). Thus, to the extent to which the case that the Appellant wished to make against the Council was one arising from its failure to carry out road work, it was not open to the Appellant.

[32]

Is Installation of Guideposts "Road Work" ? 101 The Appellant submits that, to the extent to which its case was based upon the failure of the Council to install guideposts, section 45 does not apply because installation of guideposts is not "carrying out road work" within the meaning of section 45. 102 Section 45(3) makes the meaning of "carry out road work" depend upon what counts as a "road work within the meaning of the Roads Act 1993". 103 The dictionary of the Roads Act 1993 provides: " road work includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transitway station or service centre) that is constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work." 104 Thus, a "traffic control facility" is not a "road work" within that definition. The dictionary to the Roads Act 1993 defines "traffic control facility": " traffic control facility has the same meaning as it has in Part 6 of the Transport Administration Act 1988 , and carry out traffic control work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control facility." 105 In Part 6 of the Transport Administration Act 1988 section 45E defines "traffic control facility": " traffic control facility means: (a) traffic control lights on roads or road related areas, and equipment used in connection with traffic control lights, or (b) any sign, marking, structure or device containing or relating to a requirement or direction, contravention of which is an offence arising under: (i) this Act or the regulations, or (ii) any other Act, regulation or by-law prescribed for the purposes of this subparagraph, or (c) any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn, advise or inform the drivers of vehicles , or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards , or (d) any bridge or subway or other facility for use by pedestrians over, across, under or alongside a road or road related area, or (e) any other thing prescribed as a traffic control facility by the regulations." (emphasis added) 106 Mr Stuart-Smith gave evidence that guideposts were installed for reasons including as an "indicator of the road width", and also to indicate soft edges on the road. On the basis of that evidence I would hold that the guideposts are a "traffic control facility" and hence any case that the Council had been negligent in failing to install guideposts does not fall within the ambit of section 45. 107 On the other hand, removing part of the uphill bank to create a wider road is in my view carrying out road work within the meaning of section 45. To the extent to which the case of the Appellant involved an allegation that the Council was negligent in failing to remove part of the uphill bank, that case was not open on the pleadings. However, insofar as the Appellant's case was one of misfeasance in grading the road, and of nonfeasance consisting only of failure to install guideposts, it was open.

[34]

Is a New Trial Needed? 112 That the judge's reasons are inadequate is not enough to necessitate that there be a new trial. In Monie v The Commonwealth of Australia [2007] NSWCA 230 I said at [226], with the agreement of Mason P and Beazley JA: "Part 51 Rule 23 Supreme Court Rules 1970 requires that a new trial not be granted because of an error in the court below unless the court is satisfied that some substantial wrong or miscarriage of justice has been thereby occasioned. As explained in Richard Martin Tory v Michael Megna [2007] NSWCA 13 at [28]-[30], in deciding whether the court is so satisfied, the principles on which the proviso is applied in criminal appeals, as explained in Weiss v The Queen (2005) 224 CLR 300, should be applied. Weiss had stated the principles using the procedural langauage appropriate to a criminal trial by judge and jury. Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 at [23]-[27], stated what those principles are on an appeal from a single judge exercising civil jurisdiction: "First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. … That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence [ Driscoll v R (1977) 137 CLR 517 at 524-525 per Barwick CJ; R v Storey (1978) 140 CLR 364 at 376 per Barwick CJ; Morris v R (1987) 163 CLR 454; M v R (1994) 181 CLR 487; Festa v R (2001) 208 CLR 593 at 631-633 [121]-[123] per McHugh J] and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record [ Fox v Percy (2003) 214 CLR 118 at 125-126 [23] per Gleeson CJ, Gummow and Kirby JJ] …" [the Court of Appeal is satisfied that the decision reached by the trial judge was the correct one]."" 113 Mr Polin submits that this Court should be satisfied that the trial judge reached the correct conclusion. 114 He submits that, even on the assumption that the trial judge was in error in failing to deal with the misfeasance case, no miscarriage of justice has occurred, and hence there is no occasion for a new trial, because the misfeasance case could not have succeeded. He submits that it was only Mr Stuart-Smith who gave evidence about the possible role of the Council's maintenance activities in the building up of a soft edge on the road. Mr Stuart-Smith's cross-examination included: "Obviously, at the time of the construction some fill would have gone - a little bit would have accumulated there and then over time, with more and more gravel being put on the road as it's being maintained, more gravel spilled over the edge and so you actually do get some what we call fill material, which is a slightly [sic - slighter?] slope than the natural slope of the bank. Now to determine whether or not that was put there at the time of the construction or whether it accumulated over time is really a moot point and it is not really significant." 115 The uncontested evidence was that the road was constructed before the Council was in existence. 116 Mr Stuart-Smith also said: "Q. … Now just in the normal process of grading the road, you fill defects in the road itself? A. Yes. Q. And any excess, loose material whether it be gravel or loose soil or deposits on the road surface would also be pushed to the side of the road? A. I mean the grader driver would be trying to utilise the material and trying not to push it to the side of the road, but some could. Q. But that's what often happens? A. Yes. Q. And that's an explanation for how this batter may have been created in this instance? A. That's one explanation, yes." 117 Mr Polin submits that this evidence does not rise to the level of saying that it is more likely than not that it was the grading of the road that created or contributed to formation of the batter that was not compacted as well as the rest of the road. 118 In my view, the portions of Mr Stuart-Smith's evidence upon which the Council relies for this purpose are not sufficient to lead to the conclusion that the Appellant's misfeasance case was clearly not made out. There are portions of Mr Stuart-Smith's report (para [40]-[44] above) that are expressed in terms of it being likely that maintenance of the road had a role to play in the building up of the less well compacted batter. As well, Mr Knight's report refers to gravel spreading over the verge, though without saying how it came to do so.

Colavon Pty Limited trading as Thormans Transport v Bellingen Shire Council

At a glance

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Judgment (40 paragraphs)

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Cases Cited (15)

Cited By (7)