Indigo Shire Council v Pritchard [1999] VSCA 77

10. The plaintiff sued the Council seeking damages for his injuries, contending that the Council's negligence had caused the incident and these injuries. By its defence the Council admitted that it was responsible for the construction, maintenance, care and management of the bridge, but denied that it had been negligent. At trial the plaintiff contended that the incident was caused by the Council's negligence in failing to provide appropriate signage in respect of the hazard created by gaps in the planks on the bridge and in failing to exercise reasonable care in the construction and maintenance of the bridge. The Council contended that the signs in the vicinity of the bridge were appropriate and that there had been no act or omission on its part which was capable of amounting to an act of misfeasance. The Council also contended that in any event the plaintiff had been guilty of contributory negligence by failing to keep a proper lookout and failing to heed the signs near the bridge and dismount from the bicycle so as to walk across the bridge.

13. After a trial lasting three days, the judge on 8 May 1998 delivered judgment for the plaintiff. His Honour found that the Council had not taken reasonable care to ensure that the plaintiff was suitably and sufficiently warned of the hazard created by the gaps in the planks on the bridge and that this negligence was a cause of the plaintiff's injuries. The judge was not satisfied that there was negligence on the part of the Council in the construction or maintenance of the bridge which was a cause of these injuries and also found that there had been substantial contributory negligence on the part of the plaintiff which was a cause of his injuries and held that the plaintiff's damages should be reduced by 60 per cent. The judge fixed the plaintiff's damages in all at $81,381 and entered judgment for the plaintiff in the sum of $32,552, together with $3,863 damages by way of interest.

16. The Council now challenges the finding that there was negligence on its part which was a cause of the plaintiff's injuries. In a cross-appeal the plaintiff challenges the findings of his Honour that there was contributory negligence and that his damages should be reduced by 60 per cent. The plaintiff also has given notice of contention that the judge was wrong in failing to find that there was negligence in the Council in the construction and maintenance of the bridge.

19. The evidence given during the trial was as follows. The accident occurred mid-morning on a fine day. The road was dry, flat and bitumenized. The plaintiff passed three road signs before riding onto the bridge. The first sign was at diagonal yellow and black sign which read "ONE LANE BRIDGE". The second sign was a black and white sign eight metres from the bridge which read "NO OVERTAKING OR PASSING". The third sign was located 3.4 metres from the commencement of the bridge decking. It was a yellow and black sign, almost square, and read "BEWARE OF GAPS IN BRIDGE DECK - CYCLISTS DISMOUNT". In these reasons I will call these signs the "first", "second" and "third" signs respectively. The dimensions of the third sign were 500 by 550 mm. It was considerably smaller than the second sign both as to its size and the lettering.

22. The plaintiff gave evidence that at the time of the incident he was riding a 12-speed road-racing bicycle, the width of the tyres being approximately three-quarters of an inch. As a result of his injuries he had no actual recall of riding onto the bridge, his last memory being of approaching the bridge. He remembered looking ahead to see if there was a vehicle coming from the opposite direction and recalled the first sign reading "ONE LANE BRIDGE", which he believed was approximately 55 metres from the bridge. He estimated his speed as then being about 25 kph. The plaintiff's evidence was that he had not ridden over the bridge before the incident although he believed that once, some nine years beforehand, he had driven up the road in question. He said that he had no recollection of ever previously having ridden a bicycle over a bridge decked with longitudinal timber planks and was unaware of the significant hazard to cyclists that such bridges often present. The plaintiff said he thought it was likely he did not see the third sign because, if he had seen and read it and understood it, he would have stopped. He said he was preoccupied with negotiating the bridge and the possibility of oncoming traffic. A number of photographs of the bridge, the bicycle, other bridges and the signs were tendered in evidence.

25. The plaintiff called an engineer, Arnold Mees Blackett, who gave evidence that he had experience in bridge design and construction beginning in 1950 and that he had supervised the construction of some 32 bridges. Mr Blackett's evidence was that the original construction of the deck of the bridge or its subsequent reconstruction or both were faulty in a variety of ways, for example, because deck planks were not cut near to size some planks were oversize in width, deck planks were not laid close and clamped together before bolting, and reconstruction of the deck was faulty because gaps were permitted between deck planks which were excessive, hazards, particularly to cyclists, resulting. Mr Blackett said that over the life of the bridge all the planks in it had been replaced, there was no evidence of bolting of the planks to the cross-members, which gave a potential for huge gaps, and when the bridge was repaired a number of alternative repair methods should have been used including placing the planks transversely across the bridge, decking the bridge with waterproof plywood, putting bitumen on the planks or using pre-shrunk timber.

28. As to the signage, Mr Blackett said the location of warning signs was not in accordance with Australian standards, the format of the third sign was in letters too small and, in particular, insufficient time allowance was provided for passing cyclists to read the sign. He said the second and third signs were located too close to the bridge for practical effect and that no sign should be closer than 20 or 30 metres from the bridge.

31. The Council called as witnesses Philip Jordan, the principal road safety engineer at VicRoads; Andrew Philip O'Brien, a consulting traffic engineer with 27 years' experience in traffic engineering and road safety fields; Anthony Gallagher, a civil engineer and manager of technical services of the Council; and Robert Meggs, a civil engineer with 30 years' experience in bridge works.

34. Mr Jordan gave evidence that the design criteria for a sign for cyclists were different from those for other road users, but there was no rule which required the third sign to be more than 20 metres from the bridge, that the legibility distance of the third sign was 36 metres and that it was in an appropriate location, and that the third sign was not covered under any Australian standards.

37. Mr O'Brien said that the third sign had an appropriate colour scheme, that the message displayed on it was clear and concise, and that it was theoretically legible at a distance of 36 metres. He said that it was assumed for sign design purposes that cyclists would travel at a speed of 25 km on the approach to the bridge and would stop within 10 to 15 metres. He said that the height of the third sign made it clearly visible and legible and that there were no significant safety problems existing with regard to the third sign warning cyclists about conditions on the bridge deck. He said the adoption of the height legend for the third sign was appropriate. In particular, Mr O'Brien gave evidence that a cyclist riding at 25 kph would take approximately 39 metres to stop after reading the sign on the assumption of a reaction time of 1.5 seconds and a deceleration distance of 15 metres. He also said that the positioning of a sign which instructs one to dismount would have to be close to the bridge if it were going to be usefully obeyed because cyclists would be unlikely to get off and walk 20 or 30 metres up to a bridge.

40. Mr Gallagher gave evidence that as at November 1994 there were 40 bridges on local roads within the shire, 18 of which were wooden ones and eight of which had longitudinal planks. Mr Gallagher said that routine maintenance in the form of day-to-day patching was a very expensive form of management and that it would be far more cost efficient and provide a better service to the public to arrange to have good quality infrastructure and carry out a sensible cyclical maintenance programme. He also said the bridge had been a source of some problems due to its age and that work had gone on continually but in more of a routine fashion.

43. Mr Meggs's evidence was to the effect that after the incident the deck had been overlaid with plywood panels to provide a smooth gap-free surface. He also was asked about Mr Blackett's evidence that the use of green (undried) timber had resulted in gaps appearing in the bridge. He agreed that the use of dry wood would have avoided this problem but said that the practice was to use green wood because of "the cost of drying, the time to dry, the fact that green timber is easier to cut and so on, cut and whatever".

46. The judge said in his reasons for judgment that there was no significant factual dispute. He said of the plaintiff that he found him to be honest, reliable, intelligent and impressive. He accepted that the plaintiff had never previously ridden a bicycle over a bridge with longitudinal timber planks and was unaware of the significant hazard to cyclists that such bridges present. His Honour found that the danger of a rider being dislodged on a timber bridge with longitudinal timber decking was high and that at speed the risk of injury was very high. His Honour said it was highly significant that most cyclists would be oblivious to this particular hazard unless they had encountered it. The learned judge accepted the plaintiff's evidence that although he had a good view of the bridge for several hundred metres, his principal concern as he approached the bridge was that he might encounter an oncoming car or truck. There were also rushes or reeds in the creek bed which would to some extent have impeded visibility of the road beyond the bend at the time of the accident. For these and other reasons his Honour accepted that the plaintiff's principal concern as he approached the bridge was oncoming traffic. As to the signs, his Honour accepted the Council's evidence that the third sign was capable of being read at a distance of 36 metres.

49. His Honour considered the question of why it was that the plaintiff had not dismounted but had ridden onto the bridge contrary to the instruction given by the sign. Three possibilities were considered by his Honour: the first that the plaintiff read and understood the sign but chose to ignore it; the second that he did not see the sign at all; and the third that he saw the sign and attempted to stop but was unable to stop in time. The most likely explanation his Honour thought to be that the plaintiff simply did not see the sign at all or saw it so late that he did not have time to brake before riding onto the bridge decking, at which point he could even have added to the risk of mishap by braking heavily.

52. The Council accepted before his Honour that in so far as the condition of the bridge deck presented a hazard to cyclists, it was under a duty to take reasonable steps to alert cyclists to that danger. The Council's expert witnesses, however, postulated that cyclists approaching the bridge would be keeping a proper lookout and would otherwise take reasonable care for their own safety. The judge expressed some misgivings as to the way in which both Mr Jordan and Mr O'Brien had given evidence. Mr Jordan was, he said, a little too keen to defend the responsible highway authority, while Mr O'Brien on the other hand, although more objective, had, in his Honour's view, given no value to the extent to which concern about oncoming traffic might preoccupy a cyclist approaching a one-lane bridge. Furthermore, Mr O'Brien's evidence that the obligation to give a sufficiently early warning to cyclists would be compromised by giving them that warning too early was regarded by his Honour as unrealistic.

55. The principal conclusions of his Honour are in my view to be found in the following three extracts from his reasons, which I must set out in full. His Honour said:

"I am strongly of the view that this bridge represented a hazard to cyclists which can be categorized as very high. I repeat, the front wheel of the plaintiff's bicycle dropped into a gap which was at least 80 mm wide, the wheel dropped down to the axle. The plaintiff broke his neck. The fact that the gaps on the bridge constituted a hazard was acknowledged by the local authority in erecting the sign. In fact it seems such signs are commonly erected in association with longitudinally planked timber bridges. But to my mind far too little value has been given by the defendant's experts and, for that matter, the local authority to the extent of the hazard which this bridge represented. Imagine what sort of signage would be erected if the bridge represented a hazard of equivalent proportions to motorised traffic."

"I have come to the conclusion that having regard to the speed of the plaintiff's bicycle (which, plainly, was within a foreseeable range), the proximity of the 'cyclist' sign to the bridge, the size and characteristics of the 'cyclist' sign, the proximity of the 'cyclist' sign to the 'NO PASSING OR OVERTAKING' sign, the fact that it was a one-lane bridge, the foreseeable preoccupation of a cyclist with the danger which would be created by oncoming traffic, the high risk of injury created by gaps in the planks, the possibility of rider inattention, the relatively low cost of placing appropriate signage at longitudinally planked timber bridges, that the warning given to the plaintiff in this case was inadequate and that the defendant did not take reasonable care to ensure that the plaintiff was suitably and sufficiently warned of the hazard created by the gaps in the planks."

His Honour said as to the issue of the Council's alleged responsibility for the condition of the bridge that -

"The whole issue of the condition of the bridge may indeed have been a red herring. If it is accepted on both sides, as it was, that cyclists shouldn't be on the bridge at all, the danger created by unusually wide gaps should be reflected in the quality of the signage. In other words, if, as a result of deterioration of the bridge and makeshift repairs, the gaps were unusually wide, the need for signage which would ensure as far as possible that cyclists dismounted was even more compelling. Spending money on closing the wider gaps was not really the answer. The answer was to endeavour to ensure that people didn't ride on the bridge".

63. As to the question of contributory negligence, the learned judge found that there was substantial negligence by the plaintiff himself which was a cause of his injuries, on the probable scenario that the plaintiff either did not see the sign at all or saw it so late that he was unable to reduce the speed of his bicycle before entering onto the bridge. His Honour put it that "The fact that the signage was inadequate doesn't excuse the plaintiff from failing to see it at all, if he had been keeping a proper lookout. That the signage was inadequate does not mean it had no utility at all." His Honour did not, however, criticize the plaintiff's speed.

66. In this Court Mr Curtain, for the appellant, submitted that the more likely conclusion was that the plaintiff did not see the sign at all rather than that he saw it so late that he did not have time to brake. On this basis, he submitted, the causation issue had not been made out by the plaintiff below. He relied on Romeo v. Conservation Commission (1998) 192 C.L.R. 431 and Pyrenees Shire Council v. Day [1998] HCA 3; (1998) 192 C.L.R. 330 in support of what he submitted was the extent of the duty of a public authority. He submitted that there was not sufficient evidence to draw the conclusion that in this case the injured party would have been deterred from riding onto the bridge had he seen the sign.

69. In my view, there is nothing in these arguments. The first two passages from his Honour's reasons for judgment which have already been set out are, in my view, free from error, and the findings of fact are impregnable. I have already recorded that the judge said of the plaintiff that it was highly unlikely that he saw the sign and chose to ignore it; that he had never previously encountered such a hazard; and most cyclists would have been oblivious to the danger unless they had encountered it. In these circumstances, the judge's conclusion that the warning given to the plaintiff was inadequate is plainly critical. It was amply supported by the evidence of Mr Blackett that the sign was too small and too close to the second sign. There was evidence (from Mr Blackett, and in my view also from Mr Jordan and Mr O'Brien) that the third sign was too close to the bridge. Mr O'Brien's evidence was that he would have placed the third sign a few metres further from the bridge even though he thought the position was in an acceptable range. From the photographs of the bridge and the signs and other bridges it was possible for the court to make some comparisons. From a perspective wholly unembarrassed by expert knowledge of signage, I should have thought it obvious that the plaintiff's criticisms of the third sign are fully justified, that is, that it is too small and too close to the bridge, but, worst of all, that its position close to the much more prominent second sign warning traffic "NO OVERTAKING OR PASSING" would have resulted in attention being attracted to the larger sign and diverted away from the smaller. In my view, his Honour was clearly correct to find that in the circumstances the bridge was a very considerable hazard to cyclists and that the warning given them was inadequate.

72. As to causation, Mr Curtain's argument was that if the plaintiff did not see the sign at all, and took no evasive action, the only explanation was that he simply failed to look at the sign because he was not keeping a proper lookout. The judge's conclusions that it was most unlikely that the plaintiff would wilfully ignore a road sign and that his principal concern as he approached the bridge was oncoming traffic, in my view provide the answer to this submission. If the third sign had been larger and placed further away from the bridge and the second sign, the plaintiff might well have seen it. His Honour's view was that he would not have ignored it.

75. It follows therefore that I think the Council's appeal should be dismissed.

78. I turn then to the cross-appeal. Mr Beach for the plaintiff submitted first that the judge had no basis for a finding of contributory negligence; secondly, that the apportionment of 60 per cent as the plaintiff's fault was wholly erroneous and unreasonable; thirdly, that there should have been a finding that the bridge was negligently constructed and/or maintained; and finally, that if the third submission was correct this Court must in any event reassess apportionment because the judge had not taken negligence in construction or maintenance into account in the apportionment he made.

81. There was an abundance of evidence that the bridge was in an unsafe and deficient condition so far as the surface was concerned, and that the bridge represented a very high hazard (the judge's words) to cyclists. That this was known to the Council was shown by the fact that the Council erected a cyclist's warning sign. Mr Curtain did not argue that the condition of the bridge was the consequence of nonfeasance on the part of the Council as opposed to misfeasance.

84. The judge was not persuaded that misfeasance had been established, in regard either to the original construction of the bridge or the periodic maintenance of it, saying that "In this regard the volume of traffic using the bridge, the necessary limitations in patch-up repairs of old decaying structures and so on are all relevant considerations." His Honour went on to treat the condition of the bridge as, in effect, a red herring, accepting the Council's submission that cyclists should not be on the bridge at all; that if, as a result of deterioration of the bridge and makeshift repairs the gaps were unusually wide, the need for signage which would ensure as far as possible that cyclists dismounted was even more compelling. His Honour said: "Spending money on closing up the wider gaps was not really the answer. The answer was to endeavour to ensure that people did not ride on the bridge." In this Court Mr Curtain's argument was that the plaintiff could not have it both ways and that although the judge had correctly accepted that the bridge surface was defective, the plaintiff's only proper complaint was of a failure to warn adequately and that he could not, in effect, accumulate the two suggested bases of negligence of the Council.

87. I do not, with respect, accept the judge's view that the condition of the bridge was a red herring. There was evidence given by Mr Blackett, as I have said, of at least five methods of constructing or repairing the bridge which would have removed the risk of injury to the plaintiff. Although his Honour said he was more impressed by the evidence of Mr Meggs than Mr Blackett, Mr Meggs accepted that some of these methods would indeed have removed that risk. Furthermore, the Council had, according to Mr Meggs, since the incident overlaid the deck with plywood panels to provide a smooth gap-free surface, that being the second of the alternatives suggested by Mr Blackett. There were only eight wooden bridges with longitudinally placed decking in the shire. It is of course necessary to examine the cost of any suggested precautionary measure for the purpose of determining whether the Council could reasonably have been expected in the circumstances of the known risk to have taken that particular precaution (cf. Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 C.L.R. 40 per Mason J at 47-48). But the Council called no evidence as to the cost of these alternatives, or to establish that they would have been more expensive or demanding than the constant patching repairs that were necessitated by the existing condition of the bridge (as to which see Nelson v. John Lysaght (Australia) Ltd. [1975] HCA 9; (1974-75) 132 C.L.R. 201 at 214-215).

90. Furthermore, again with all respect to the judge's careful reasons, I disagree with the statement that the solution was to endeavour to ensure that people did not ride on the bridge rather than spending money to close up the wider gaps. There are plainly foreseeable situations in which even a larger and adequate warning sign would not have prevented a cyclist from riding onto the bridge (two mentioned during argument were an illiterate cyclist, or a vehicle parked beside and obscuring the warning sign). An authority having responsibility for road signage must, as his Honour said, make appropriate allowance for driver/ rider inattention and could not assume that cyclists approaching the bridge would be keeping a proper lookout or otherwise taking reasonable care for their own safety; see, for example, Bus v. Sydney County Council [1989] HCA 29; (1989) 167 C.L.R. 78 at 90; March v. Stramare [1991] HCA 12; (1991) 171 C.L.R. 506 at 520.

93. In my view, the proper inference to be drawn from the facts was that the Council had been negligent in the maintenance of the bridge and that this also was a cause of the plaintiff's injuries. It was a matter which the plaintiff was entitled to have taken into account in assessing apportionment, part of the whole conduct of the Council in relation to the circumstances of the incident which must be subjected to comparative examination; Podrebersek v. Australian Iron and Steel Pty Limited [1985] HCA 34; (1985) 59 A.L.J.R. 492 at 494. On the question of apportionment, a judge's finding is not lightly reviewed; Podrebersek at 494. It was necessary for his Honour to consider whether the conduct of the plaintiff which the Council called into question was to be characterized on the one hand as contributory negligence or on the other as inadvertence, inattention or misjudgment not amounting to negligent conduct; Kulczycki v. Metalex Pty Ltd [1995] VICSC 22; [1995] 2 V.R. 377 at 410; Butler v. Rick Cuneen Logging [1997] 2 V.R. 99 at 102.

96. The judge said of the plaintiff that there was "substantial negligence" on his part, saying that -

"The probable scenario is that the plaintiff either didn't see the sign at all, or saw it so late that he was unable to reduce the speed of his bicycle before entering onto the bridge. The fact that the sign was inadequate doesn't excuse the plaintiff from failing to see it at all, if he had been keeping a proper lookout. That the signage was inadequate doesn't mean it had no utility at all."

His Honour gave no further reason for apportioning 60 per cent of the responsibility for the incident to the plaintiff.

101. Since the judge gave no consideration to the Council's negligence in maintenance of the bridge, it is necessary in my view for this Court to reassess the apportionment of contributory negligence. But even without that additional factor, I should myself have said that the amount by which his Honour reduced the plaintiff's damages was, with respect, neither just nor equitable, to an extent requiring this Court's intervention.

104. There were two principal criticisms of the plaintiff's conduct. The first was his failure to see the third sign and the inference that he was not keeping a proper lookout. The second was his failure on arriving at the bridge to observe what is apparent from the photographs tendered in evidence, the obviously defective nature of the surface and the gaps themselves. The second of these criticisms was not made by the judge. After accepting that the plaintiff was unaware of the risk presented by the bridge, not having previously encountered it, his Honour thought it highly significant that most cyclists would be oblivious to this particular hazard unless they had encountered it. This conclusion was no doubt based on the evidence of Mr Meggs himself who said that a motorist driving across the bridge would not even know there was a crack in the surface and that it was only when one stopped and either pushed a bike across or walked across the bridge that the gaps became apparent.

107. The plaintiff's explanation for his presumed failure to see the third sign was that he might encounter an oncoming car or, worse still, a truck. Other traffic was, he said, one of his great fears, a cyclist's main worry. The judge accepted that this was his principal concern. Any such preoccupation on the part of the plaintiff was, I think, not only understandable but also an essential precaution. The one-lane bridge was, of itself, a considerable hazard to cyclists. Beyond the bridge lay 200 metres of flat straight road. Whether the plaintiff could see beyond the curve of the road to the left would have depended on the height of the approaching vehicle and whether it was obscured by the rushes or reeds which grew out of the creek bed. A vehicle travelling at 100 to 120 kph would cover 200 metres in six or seven seconds. The plaintiff was travelling at approximately seven metres a second and was therefore at risk from a distance of some 50 metres or so before the bridge of meeting another vehicle travelling fast towards him while he was actually on the bridge, unless he maintained his concentration on the open road ahead.

110. In all these circumstances, while I accept that there was an element of negligence in the plaintiff's failure to see the warning sign, the responsibility of the Council in my view very substantially outweighed that of the plaintiff. I would allow the cross-appeal and, in lieu of the figure of 60 per cent, find the plaintiff 25 per cent responsible for his own injuries.

113. The appellant should pay the costs of the appeal and cross-appeal.

123. Originally I had considerable doubt as to the outcome of this appeal because the bridge appeared to me to be obviously dangerous. In the end, however, having regard to standards presently imposed by the courts, I fear my impression as to the obviousness of the danger was erroneous and I am content with the conclusion of Charles, J.A. and his reasons. I would add only that I consider that the third sign was manifestly deficient and expressed in archaic English so that one could not assume that all cyclists, whatever their age or language limitations, could understand it. A simple sign with perhaps a diagonal line across a picture of a bicycle with some further explanation ought to have been preferred.

128. I agree, for the reasons given by Charles, J.A., that the appellant was negligent towards the respondent. I agree also that the respondent was contributorily negligent, having failed to keep an appropriate lookout. Irrespective of the shortcomings of the third sign, the bridge was very plainly and obviously dangerous to approaching cyclists. I should not myself assess at 25 per cent the respondent's degree of contribution to the mishap. He was, I think, rather more responsible than that for his own misfortune, although not as much as the County Court judge attributed to him. Since, however, I am in a minority in this opinion, there is no purpose in my elaborating it.

131. The appeal must be dismissed and the cross-appeal allowed.

135. The judgment of this court will be in accordance with these minutes.

3. Order that the judgment below be set aside and that in lieu there be judgment for the plaintiff in the sum of $61,035.75 together with $7,245 damages in the nature of interest and that the defendant pay the plaintiff's costs of the action to be taxed in default of agreement on County Court Scale D.

4. That the appellant pay to the respondent interest on the judgment sum from 8 May 1998 until this day in the sum of $8,672.