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."