Mansfield v The Great Lakes Shire Council

District Court of NSW|2014-11-07|Before: Mr P

Solicitors: CMC Lawyers (Plaintiff) Mills Oakley (Defendant) File Number(s): 2011/00171609

INDEX The Accident Scene - paragraph 7 The Accident - paragraph 11 Accident Scene - paragraph 45 Expert Evidence - paragraph 56 Section 43A - paragraph 88 Section 45 - paragraph 101 General Principles - paragraph 123 Section 42 - paragraph 146 Nuisance - paragraph 155 Contributory Negligence - paragraph 157 Damages - paragraph 158

Judgment

The Plaintiff brings proceedings pursuant to a Further Amended Statement of Claim filed in Court on 4 November 2014 against Great Lakes Council in respect of an incident, which occurred on 1 January 2010.

The Accident Scene

Greens Crossing Road is a public road, which commences at the intersection of Buckets Way at its eastern end and runs to the west. The public road reserve extends to the west, past the Booral-Washpool Road and crosses the Karuah River at about mid-point of that length. The road provides access from Buckets Way to rural property, a water pump house and an electricity supply line crossing the Karuah River.
At the time of the accident Ms Sandra Shoobridge resided at 2849 Bucketts Way Road, Stroud. She stated in evidence that to access her property it was necessary to drive down Greens Crossing. [4] Her evidence was that the vehicles that used Greens Crossing Road were "a variety of vehicles, private vehicles, water board trucks, council trucks, electricity trucks and the fire brigade." [5] In cross-examination she conceded that Greens Crossing was not a heavily used road in comparison to Bucketts Way. She agreed that it was a laneway used by two landholders and that, from time to time, a water truck goes to collect water and "frequently used to access the Karuah River." [6]
According to evidence given by the Defendant's expert Mr Jackson Clark, [7] the length of the road from Bucketts Way to the pump house is about 600 metres and has been formed and sheeted with a thin covering of pit run gravel. At the end of that length of road, access to the pump house is closed by a gate, which is shown in photograph A of Exhibit 2. Beyond that gate the road is a track to the Karuah River Crossing. At about 40 metres to the east of the pump house gate there is a track to the rural property to which the road provides access. [8] Photograph B in Exhibit 2 looks east from the pump house gate towards the bend where the property access track joins the road. About 90 metres to the east of the property a drainage culvert carries a watercourse across and under the road. That culvert is not the culvert at the accident location and is about 300 metres to the west. [9] Photograph C of Exhibit 2 shows the road to the west of the culvert and photograph D shows the road where it crosses the culvert with white guide posts marking its position on either side. The accident culvert is located about 100 metres from the fence line along Bucketts Way. In an aerial photograph referred to at [25] of Exhibit 2, Mr Clark marked on a Google map the accident location, the accident culvert, the second culvert, the access turn-off to the property and the pump house gate. A gate is located at the commencement of Greens Crossing at the intersection with Bucketts Way. [10]
A somewhat more brief description of Greens Crossing Road is also to be found in the report by the Plaintiff's expert Mr John Jamieson at [4] of Exhibit F. To the extent described above, I do not regard anything in Mr Jamieson's report to be inconsistent with that of Mr Clark.

The Accident

The Plaintiff's evidence was that at the time of the accident, being 1 January 2010, there was a heavy cicada plague and the Plaintiff had been asked by a Mr Kent to bring a water cart down to clear out the gutters which were infested with dead cicada and flush out the water tank, as Mr Kent had no drinking water. [11] Mr Kent lived at the property at the end of Greens Crossing.
The Plaintiff at the time was an owner-driver of trucks and had in mid-2009 purchased a vehicle, being a Mitsubishi model GMV2500. The vehicle was a rigid tip truck with a fitted tank. [12] He was employed by his own company, which was known as Jay-Vac Pty Ltd.
On New Years Day 2010 at around 10-10.30am he drove down Bucketts Way and turned onto Greens Crossing. He gave evidence that the weather was fine although there had been some rain previously. [13] He described the visibility on the morning of him driving into Greens Crossing as "crystal clear." [14]
The Plaintiff states that: "I proceeded down Greens Crossing at a slow pace as you would do with a full load. I went to go across the culvert between the two wide posts. The front of the truck went through without a problem and then the truck reared up that way, and it … reared up, and sort of virtually stopped half way up so I thought I was going to be okay, and I started to take my seat belt off, and then, all of a sudden it just flicked over." [15] He stated that it flipped over to the left hand side and he was flung to the other side of the truck, onto the floor and onto the left hand side driver's door. The truck remained lying on its side. He stated that he did not notice anything about the truck being at risk while driving down to the crossing. He said that he had been there once before "months earlier without any problem." [16] On the occasion in question it appeared to the Plaintiff that there was plenty of room as he transited the road. He said he went through 2 white posts, which seemed wide enough. [17] He rejected the suggestion that he might have driven outside the graded carriageway on the grass and outside the posts because: "I would say impossible because if I did that I would have been tipped over before I got to the culvert". [18]
After the accident, the Plaintiff was breath tested and had a zero alcohol outcome. He was treated for his injuries and his vehicle was written off by his insurer. [19]
In cross-examination the Plaintiff conceded that, as he approached the culvert, he was aware of its presence because there was a stream or water flow that fed into a dam. He conceded that he knew that if he went off-road he was likely to fall into the stream. [20] He acknowledged the presence of the 2 white posts on the southern side (left hand) and one on the northern side. He stated they were positioned up against the verge on either side and that the back wheel came off the road on the left hand side. So far as the white post on the left hand side, he stated that it was "right on the edge of the grass growing around it." He conceded that a similar white post on his right hand side was pretty well on the point where the gravel meets the green. [21]
His evidence was that his truck was dual axle, with 10 wheels and 2 wheels on each side. [22] He reiterated that his truck passed the marker on his left without touching. The truck then came to a stop, bogged down and lifted up. [23]
At TP 34.28-.40 this exchange took place:- "Q - So if the outside wheels on the 2 rear axles come up for some reason or other, lose support underneath them, the inside wheels, if they're still supported, would still hold the truck up, is that your understanding? A - Well I don't really know. I don't think so, I don't - depending on the weight you've got on the truck it would become unstable. Q - If that all the right hand wheels are supported by the road, but only the inside left wheels are supported, there'd be no reason for the truck to tip at that point, would there? A - Probably not no."
It was suggested to the Plaintiff that as he came down the road he allowed his truck to drift a little bit onto the grass verge. [24] The Plaintiff rejected this, stating: "…a truck driver looks in his rear vision mirrors where his back wheels are going, and they were inside the white post." [25]
The Plaintiff was then shown various photos taken by Senior Constable Brad Smith and contained within Exhibit 2, being the report dated 26 March 2012, from the Defendant's expert, Mr. Clark. Upon being shown photo 6, he maintained that his rear wheels were on the inside of the white post despite the post being depicted as inside the wheels in the vehicles resting position. [26]
Ms. Shoobridge described the grading works that the council is said to have performed in response to her 2008 request in these terms:- "The council came down and graded the road and on the causeway part, the part that I was concerned about, they put one white post on either side of the crossing and that was - their maintenance of it. They did grade the entire road, but they just put white posts across the crossing." [27]
Ms. Shoobridge stated that she had driven down the road subsequent to the white posts being installed and "you had to drive between them because council had put them on the very edges of this - the crossing way." [28]
Ms Shoobridge was asked whether she recalled, immediately prior to 2010, driving her car with the horse-float down the crossing way at the point of the culvert where the pipes are. She answered "yes", [29] adding: - "It was a very tight fit and it got to the stage where I was so concerned about I wouldn't even drive my horses on that side of the crossing. I'd take my float across first and load my horses on the other side." [30]
Ms. Shoobridge gave evidence of conversations with Ms Kathy Dennis at the Defendant's Stroud office, on which she was not directly challenged. Her request was for the Defendant to come to grade the road and to do maintenance as it was deteriorating- there were potholes and erosion. She stated that she mentioned that the erosion was occurring across the causeway. [31] She conceded that she cannot be sure when she made the complaints, however, her best recollection was that it was both before and after the grading of July 2009. [32] She disagreed that grading had been done 3 to 4 times between 2008 and 2009. [33] She reiterated that the guideposts had been put in and stated that they were inserted at the very edge on either side of the culvert and the grass on both sides of the driveway was overgrown. [34] She confirmed that the white post location was "roughly in the area where you can see the brown where the green is interrupted" in Exhibit 2 photo 2. [35] She further reiterated that it was not possible to drive where the posts were because you would go into the culvert. [36] After the grading occurred it was easier to drive her vehicles and horse-float down that road but not across the crossing. [37]
In the Defendant's case Mr Peter Margery, Assistant Asset Engineer of Great Lakes Council, gave evidence. The council has employed him for 30 years and as at the date of the accident he was the Stroud Depot Co-ordinator. In that position he was the supervisor for matters in parks, gardens, cemeteries, road matters and responsible for bridges for the whole of the shire except for those maintained by the RTA. He stated that he commenced his current position in August in 1994. [38]
Mr Margery confirmed that maintenance on Greens Crossing Road was routinely carried out once per year and maybe "after a rain event or some other thing, depending, that may have got an inspection just for a safety thing." An inspection, according to Mr Margery, entailed him using a piece of paper onto which he wrote evidence. He would start at the side of the road, zero a trip meter and would take measurements along the road. As he found an item that concerned him he would make a comment as to what it was and a rough estimate as to the quantity of repair work that was involved. He described this as an "ancillary road inspection," dictating the type of hazards identified. It entailed looking for potholes, lack of gravel, guideposts on culverts and dangerous trees on the side of the road that could drop a limb. [39]
Maintenance included the grading of the road which involved a grader, a roller and a water car that would cut material from one side of the road across the water table, cleaning the water table out and spilling material back across the road so that it filled any pot holes, cutting off corrugations and making the road smooth. [40]
In addition, Mr Margery gave evidence that if he received a verbal complaint about a road he would have a look at the road but routinely complaints were registered on a request for service system, which ultimately resulted in him being notified of an inspection before carrying out necessary repairs. [41]
He stated that he received a complaint from Mrs Shoobridge in June 2007 regarding the condition of the road. [42] He did an inspection, issued instructions to the team leader of unsealed roads to carry out maintenance as he was next in the area and he thought that such instructions were actioned towards the end of the next month (that is July 2007). [43] He otherwise denied receiving complaints about the culvert prior to 1 January 2010. [44]
Sometime before 19 January 2009, however, an ancillary inspection took place. The defects work schedule, which was Exhibit M in the proceedings, noted a defect score of 13, relating to the Greens Crossing/ MR90-Y Junction. The rating of 13 identified said defect as a high priority. Mr Margery described said defect as "lacking gravel on a section of road that required gravel." [45]
Despite the high priority attached to the work, it was not attended to until July 2009. So much is clear from Exhibit O, which shows that in July 2009 maintenance grading and hand patch gravel to pavement work was planned and apparently performed. Timesheets, which are Exhibit 4, showed that the equipment used on Greens Crossing in July 2009 included a vibrating smooth drum self-propeller (plant number 442), a caterpillar 12H grader (plant number 401) and a tip-truck with a slip in water tank (plant number 379). [46] They further show that what was carried out in July 2009 were "a maintenance grading, unsealed road."
Commencing at TP180.47, Mr Margery was asked questions and gave replies as follows: "Q The maintenance was carried in July 2009, how does that relate to what is written under the heading, "Defects Type physical description", in Exhibit M in front of you? A How does it relate to it? Q Well, is there any relationship between what was carried out and what is written there? A Upon the maintenance grading, yes. Q How is it graded? A Part of the works for the maintenance grading, due to budgets are used to combine two job numbers together to try and get a maximum benefit, so the men charge their time and machines to maintenance grading, and resources to supply the gravel to complete the defect were funded from the gravel re-sheet programmes."
On 2 September 2009, Mr Margery carried out a further ancillary roads inspection at Greens Crossing. [47] He described it in these terms: "I pulled up at the start of the road, zeroed my trip meter, I drove the road at approximately 20-30kms/ph, visually observing anything that concerned me. When I took a reading of the trip meter, gave it to the penciller, he wrote down the comments I wanted to make in relation to the location." [48]
The types of items for which the ancillary inspection in 2009 were specifically looking were stated by Mr Margery to be guide posts, dangerous trees, pavement lacking gravel, depth of gravel, large potholes and corrugations. [49] Mr Margery carried out an inspection and made observations from a car window while an assistant pencilling in what he saw. He did not consider it part of his duties to get out of the car and have a look at a particular thing on the road. [50] He stated that he only listed those items for him to observe unless he saw something that he felt may need attendance and may make a specific note about. [51]
In that context, the comment, "widen culvert" in Exhibit L was outside the list.
After this inspection Mr Margery completed a defect works schedule. The defect work schedule, dated 28 September 2009, was Exhibit 5 in the proceedings. It noted, in relation to Greens Crossing/ MR90-Y Junction, 120 kilometres from the start of the segment, that the defect type/ physical description was: "Culvert obstructed > 40 % of depth. Misalignment or settlement". Details were described as " Widen culvert (375 pipe)."
When he was asked about this notation and that Greens Crossing was given a defect score of 8, [52] he stated: " As I drove along the road, in the longitudinal direction I noticed that there was a slight curve over the culvert, and I considered that it needed to be slightly straightened, but it was not a safety issue, so the number was not given a high priority." [53]
He confirmed that this was the same culvert where the accident occurred and then stated that medium priority: "… does not stipulate a time. The higher the number the higher the priority, and with budgets, we are supposed to identify the highest priorities. Our budgets fund to remove the most hazardous issues that we have out in the field, and work our way down in priority, so at a priority 8 that had not come up." [54]
Mr Margery was asked whether he had any anticipation when he gave it a category 8 as to when that work would be carried out. He responded stating: "I would have liked to have thought that the work may have been carried out in the current financial year." [55] (meaning 2009 - 2010 financial year)
He was then asked whether there was any reason why it could not have been done immediately. [56] He responded "No" although conceded that there were other higher priorities. [57]
There is no evidence that any further inspections were carried out by the Defendant between 3 September 2009 and 1 January 2010 not hat he passes the information to anyone else in the Council.
Whilst Mrs Shoobridge gave evidence that she called on Ms. Dennis at the Defendant's Stroud office after July 2009, it is unclear whether this was before or after the 3 September ancillary inspection. The fact of the call was not challenged and the Defendant did not call Ms Dennis. What is clear is that Mrs Shoobridge was concerned about getting her horse float across the causeway for the reasons outlined earlier [58] and that she complained that the pipes were deteriorating or very deteriorated. [59]
Even if what was observed by Ms Shoobridge was incorporated in the aforementioned defect works schedule it appears that the practice even for high priority works, such as that ascertained in January 2009 and described in Exhibit M, was as described by Mr Margery at TP 181.6. [60] The co-ordination of maintenance grading and hand patch gravel pavement is also confirmed by Exhibits P & Q.
There was some evidence that the area, in which the culvert was located, was subject to heavy rainfall in the lead up to the accident. The Defendant submitted that Exhibit 8 showed that the two heaviest periods of rain appeared to have been the beginning and the end of December when the Plaintiff's truck drove over there and other trucks would have driven there without apparent complaint to council. [61] On the other hand the Plaintiff submitted that the figures show downpours in September, October and in November 2009 and that it was not just the incidence of rainfall that caused gutters to overflow and drains to fill up, but the period of time in which rain occurs. On this basis, it is said that Exhibit 8 does not by itself inform when it was the erosion commenced or concluded. [62]

Accident Scene

Ms. Shoobridge attended the accident scene on 1 January 2010 and took photographs, which were Exhibit G in the proceedings. When the Plaintiff's truck was removed following the accident she took a photo Exhibit H. At the time of taking Exhibit G, she noticed that the embankment had the culvert immediately adjacent to the wheels of the truck being to use her words "just a sheer drop." [63]
Police also attended the scene and relevant records have been tendered as Exhibit 7 in the proceedings. These photographs were appended to the expert's reports in Exhibit 2 and (in part) in Exhibit F. As is clear from the Police site diagram prepared by Senior Constable Brad Smith, dated 5 January 2010, and from the photographs themselves, the Plaintiff's vehicle landed on the left hand side at an angle with the front closer to the roadway surface than the rear.
On 4 January 2010 Mr Margery visited the accident, following a return to work. It is not clear as to whether this was in response to a service request made to the Stroud district office by Sandra Shoobridge, as recorded in an email dated 4 January 2010 at 11.31am. [64] In any event Mr Margery confirmed that the truck was not there, however, on inspection he stated: "I saw a slight edge break away from the edge of the pavement, like it had been torn away in the incident and the guide post was still embedded into the embankment, but leaning over, over the waterway." [65] He stated that in 2009, in relation to Greens Crossing, the post would have been a steel post embedded into the ground approximately 350-400mm and appeared to be attached into the ground and bent leaning over towards the inlet of the culvert. [66]
On 5 January 2010 Mr Margery attended the accident site with Mr Bruce Anderson, the asset engineer of the Defendant. Both took measurements and Mr Anderson took photographs and collected evidence. [67]
The measurements are recorded in Exhibit 6 in the proceedings. The available roadway between one shoulder of the road and the other, before the road dropped away to the culvert, was marked on Exhibit 2 of the proceedings and measured 2.6 metres. [68] The other measurements noted in Exhibit 6 related to the width distances before and after the subject culvert and were 50 metres to the east of the culvert, 3.2 metres and 25 metres to the east of the culvert, 3.2 metres, 50 metres to the west of the culvert, 3.8 metres and 25 metres to the west of the culvert 3.8 metres. Accordingly, the widths at the measured locations other than the culvert were 0.6 metres to 1.2 metres greater than the culvert following the accident.
On 6 January 2010 Mr Margery forwarded an email relating to the service request from Mrs Shoobridge to Mr Bruce Anderson, requesting him to size the waterway for culverts and let him know. [69] Mr Anderson responds in his own email stating: "We have a problem with the first culvert crossing on Greens Crossing Road. An accident occurred at the site at 2.30pm 1st January. A water tanker attempting to make a delivery rolled off the edge of the road after placing a wheel on the edge of the road shoulder. As a result of the accident the road width at the site of the culvert has been reduced to 2.6 metres. After carrying out an inspection of the site with Mr Peter Margery it was decided that the existing 450 RCP which was in a state of disrepair needed to be replaced and extended to achieve a suitable road width. The existing pipe size (450 mm) is inadequate and it should be replaced with twin 750's to accommodate a 1 in 5 year event. As this was a safety issue that required immediate attention I instructed Peter to remove the existing 450 RCP and replace it with a 600 RCP with head walls which were readily available."
In an email between Bruce Anderson and Greg Pitt on 6 January 2010, the former stated that he had spoken to a "Ron" regarding the pipe replacement referable to Greens Crossing. He noted that he had preferred to "place a set of twin 600's and sandbag until such time as we can acquire the head walls. [70]
Mr Margery confirmed that the replacement pipes to rectify the culvert came from the works department. Invoices for repair works following the subject accident were produced in response to a subpoena and marked Exhibit T in the proceedings. Pipes referred to in that exhibit were used to replace those installed immediately following the accident from the works depot. [71]
In cross-examination, Mr Margery agreed the council was sufficiently resourced to carry out repairs except for the purchase of the headwalls, which council did not have and needed to purchase. [72] He acknowledged that the total cost recorded by the council under its Costs Centre 329, in relation to repairs carried out to repair the damage at the culvert at the crossing, was just over $5,000.00. [73] In re-examination Mr Margery indicated that said figure may have only been some of it and he indicated that he was not sure whether the installation of the headwall was included. [74]
Mr Margery agreed that the council used contracted labour from time to time and that Advantage Recruitment was used for the week of 7 and 8 January 2010 for the provision of works. [75] He also agreed that the council could have hired equipment from outside its own resources. [76] In fact, following the accident a larger pipe was installed as detailed earlier in examination in chief. [77] Mr Margery conceded that if a complaint about erosion to the embankment and batter beside the trafficable surface was made prior to 1 January 2010, it would have been reasonable to go out and inspect the culvert and see whether it needed the works that were ultimately done. [78]
He also stated that, at the end of 2009, the council had sufficient resources to place signage on Greens Crossing, restricting use of the road. [79] However this was the responsibility of a particular team, as determined perhaps by the traffic engineer. [80]

Expert Evidence

A report was tendered as Exhibit F in the proceedings from Mr John Jamieson, principle of Jamieson Foley, Consulting Forensic Engineers. Mr Jamieson appears to have inspected the site in the presence of Mr Mansfield on 2 November 2011. [81] He stated at page 8 of Exhibit F: "The width of the road at the time of the crash was not measured, although in 2009 from the aerial photograph, the edges of the roadway approaching the culvert (noting previous culvert design did not feature any headwalls) was about 2.2 - 2.5m. The eroded width of the culvert itself in 2009 was scaled to be about 2.0m. It is not known if the old culvert had been repaired in the period between 2009 and 2010."
At page 10 of Exhibit F he then stated: "It was noted that at the time of the crash, rainfall runoff was directed to the adjacent damn shown in the aerial photograph by several pipes under the road (following the original creek line) but did not feature any headwall. The self- evident function of headwalls is to create a 'mini damn' and protect erosion of the roadway, embankment and/or fill from the road. In the absence of a headwall, flooding of a waterway would inevitably lead to erosion of the road structure, as the rainfall runoff is trying to make its way through the piping. It was evident from the aerial photograph taken in 2009, shown on Figure 2, that this previous culvert design had resulted in the road structure eroding to the point where it was only about 2 metres wide, which was effectively too narrow to carry vehicles with a track width greater than about 1.8 meters (that is, anything over the size of a van)."
Details of the works that were undertaken in 2009 to the date of the accident have been referred to earlier. [82]
At page 12 of Exhibit F, Mr Jamieson stated that, after the on-site viewing, photographs taken by Mrs Shoobridge, which were Exhibit G in the proceedings, and reproduced in his report as Figures 5 and 6: "Technically, the reason engineers construct "slope batters" (embankments) is to prevent this kind of incident occurring - by providing structural strength to the road's edge. If an embankment has eroded to a point where the embankment's slope is almost vertical, then any vertical loading from the top would result in the sheer forces applied to the road base spreading out and collapsing as shown. Therefore from an engineering viewpoint, it would be foreseeable that:- - any culvert without a headwall would inevitably result in the road's batter slope being eroded from regular flooding, - the developments of the vertical batter slope immediately adjacent to the travel way, - the road being susceptible to edge collapse if loaded with a heavy wide vehicle."
At page 13 of Exhibit F Mr Jamieson concluded: "In the absence of a headwall, this report discussed that the roadway embankment is vulnerable to become eroded after flooding as indeed this section clearly was - as shown by the photographs. The embankment to the left of the roadway for the truck was about vertical, which would not have provided any significant structural strength to resist the vertical loading placed on the roadway by the laden tanker. From an engineering viewpoint, the result was predictable, with the edge of the roadway collapsing and the truck rolling over to its side."
Jackson Clark of Jackson Clark Pty Ltd also prepared a report which was Exhibit 2 in the proceedings. Mr Clark reviewed various documents including the report of Mr Jamieson, dated 3 November 2011. He conducted an inspection on 17 February 2012 and took several photographs, which were appended and marked "A" to his report. In paragraphs [42] - [49] of his report, he discussed the gravel on the date of the accident. He formed the conclusion that the gravel width between the grass edges at the date of the accident was no less than 2.5m. On the basis of items of equipment used by the council in July 2009 to perform maintenance work as described in [45]-[47], he formed the view that the council did carry out grading maintenance and were able to get a grader over the culvert and hence the minimum width of the gravel resulting would be about 2.6-2.7m. It was clear from Mr Jackson's report that he was asked to assume that 3 vehicles were used during the grading process, which include: - Caterpillar - 16.2 tonne grader with wheelbase of 6.09m and a width of 2.44 metres; A steamroller - 12.47 tonnes and a length of 5.8m with a width of 2.25 metres; and Truck and water tank- 6.78 tonnes with a maximum weight (depending on how much water was being carried) of 15 tonnes and a width of 2.4m and a wheelbase of 4.5metres. [83]
In fact this was the equipment that was used as identified in cross-examination by Mr Margery at TP178:
Mr Clark was questioned in relation to his assumption that repairs were carried out consistent with the use of the equipment referred to in his report. [84] He stated that, on the basis of the police photographs, to the extent that there was any encroachment on the side of the embankment that had been removed in the July 2009 work. [85] He was then questioned as to whether if the only maintenance carried out was routing grading, whether his report would be undermined. He rejected this view. [86] He maintained that the police photographs did not show erosion of the embankment. If any of the assumptions in paragraph [4] of his report were not correct they do not undermine his view as to the effect to the July 2009 repairs, as the police photographs show no narrowing or necking. [87]
At [47] of Exhibit 2, Mr Clark noted that it would not have been possible for a grader with an overall width of 2.44 metres to have worked over a section of the road, eroded or washed out to a width of 2 metres, without that erosion or washout being filled. On the basis of the police photographs, Mr Clarke concluded at [65] of Exhibit 2 that the Plaintiff followed a path which caused the left side dual rear assemblies on the rear bogey cage of the truck to travel completely off the edge of the gravel and along the grass verge and embankment. At [68] he states that the truck must have travelled along a path with its left hand wheels for some distance before the ground collapsed. However at [94] he concluded that the appearance of the ground did show that the upper level of it, in the area of the culvert adjacent to the gravel sheeting, was softened. He considered that any flooding of the watercourse would cause softening of the road embankment. Then at [97]-[98] he stated as follows: - "97. Jamieson described the photographs at his Figures 6 and 7 as showing details of embankment failure. Those photographs were not part of the 13 photographs of the site taken by police and I do not know their source. They may be compared with police photographs numbers 1, 2, 3, 6, 7, 8, 9, 10, 11 and 13. 98. I do consider that the photographs show the embankment edges as being almost vertical." [88]
Referring to Mr Jamieson's report, at [106]-[107] of Exhibit 2 Mr Clark stated: - "[106] Jamieson also described the road as being susceptible to edge collapse if loaded with a heavy vehicle. I do not consider that the photographs show the edge of the road, being the trafficked way, as having collapsed. [107] The collapse occurred to the grass verge at the outside of the embankment and not to the gravel sheeting of the travelled way." Then in summary, at [109]-[110]: - "[109] No reason has been provided as to the reason or need for the truck to be driven on a path off the trafficked way. [110] I do not agree that the embankment to the left of the roadway (the trafficked way) was about vertical and thus failed to provide support for the edge of the roadway. The outside wheels of the truck were not on the edge of the roadway, but some distance off it."
Mr Jamieson in his evidence before me disputed Mr Clark's evidence stating: - "WITNESS - JAMIESON :…..We know from the aerial photograph in 2009 that there was severe erosion there. We - I now understand there has been maintenance following that photograph in 2009. We don't know what happened between 2009 and 2010. Sorry, after, following the repairs in 2000… TURNBULL: You mean after July 09… WITNESS - JAMIESON: July, yes. TURNBULL:… up to the day of the accident? WITNESS - JAMIESON :Yes, yeah. In other words there could have been another erosion event." [89]
Mr Jamieson disputed that the width of the gravel road at the time of the accident was at least 2.6 metres, disagreeing with the way Mr Clark derived it and stating that it appeared, from Exhibit G of the Police photographs, to be narrower than 2.6, given the track width of the truck which was just over 2 metres. [90]
Mr Margery, however, gave evidence, as referred to earlier, that he and Mr Anderson measured 2.6 metres, which he marked on photo 2 of Exhibit 2. [91]
Mr Anderson prepared the document, Exhibit 6, which contained the measurements. Mr Margery stated that he did not write on the form at all. Exhibit 6 does not disclose Mr Anderson's name but rather that of Mr Wayne Blows, and states that the date of arrival at the site was 4 January 2010. Mr Margery's evidence was that Mr Anderson did not attend the scene on 4 January 2010. Nevertheless, the same measurement is to be found in Exhibit U, being an email from Mr Anderson, where the reference is to "the road at the site of the culvert has been reduced to 2.6 metres".
The width of the truck was 2.37 metres according to Mr Jamieson. [92]
I accept that there is a level of imprecision involving identifying what the distance at the accident site in the culvert area was before, as compared to after, the accident. Nevertheless, I accept that the pre-accident width must have been at least 2.6 metres, on the basis of the measurements referred to at [68] and Mr Clarke's evidence at [61]. It follows that I do not accept Mr Jamieson's evidence in this regard.
At [28] of Exhibit 2 Mr Clark refers to extracts from s 1 Introduction and s 4 Geometric Design of Australian Roads Research Board Publication Unsealed Roads Manual - Guidelines for Good Practice. That report noted in the introduction: "The vast majority of the unsealed road network of Australia has most likely developed from the horse and cart days with little technical input applied to its ongoing construction and maintenance. This results in often-higher maintenance costs and poor safety performance, as past road standards are no longer suited to current vehicle use and driver expectation. The roads have not in most cases been constructed to any standard and improvements that have resulted over the years have been from increase maintenance, a form of creeping improvements based on reactive needs. … Experience has shown that most practitioners are offered upon traditional practices developed by field staff. Field staff often handed down from past practitioners with little critical review of the methods and standards applied and without much technical input."
I can form no firm view as to the precise width of the carriageway at the culvert following the works, which were carried out in July 2009, beyond that which I have expressed at [71]. However, the critical question is determining whether the Plaintiff was travelling on the gravel surface between the posts, which were installed following the remedial works in July 2009 over the culvert. The Plaintiff gave clear evidence that he did. [93] The experts, Mr Clarke and Mr Jamieson, were both questioned on this and their answers appear at TP146.30-152.15. The assertion by the Defendant at [20] of its submissions, that "the Plaintiff was able to drive his truck over the culvert safely as long as he maintained his truck "in the middle of the road," in my opinion misstates the issue.
Mr Clarke appeared to concede that if the front wheel of the Plaintiff's vehicle did hit the post, the wheel closest at the front would hit the post and send the post in the direction closest to the front, knocking the post forward, parallel to the surface of the road generally. [94] It was then put that, if the truck was inside the posts and tipped from left to right, the posts would wind up parallel to the truck, not at right angles but perpendicular to the road. Mr Clarke appeared to accept this as falling within the range of possibilities. [95]
When Exhibit G was shown to him, Mr Clarke admitted that the post was at a right angle to the road. Thereafter he was repeatedly asked whether this was consistent with the truck having stopped or become slow moving and knocking over the post by tipping rather than colliding with the post. In the exchange, that appears at TP149-50, it is fair to say that Mr Clarke was hesitant in his answers before finally saying: "No, I, I, I, I don't think you can draw that conclusion. The, the, the, the post is not in a position it would be if one, if a truck along side it suddenly rolled over the top of it." [96]
Then referring to the post he stated: "…. If it had been struck by the front wheel of the bogey tandem, you don't know what would have happened to it after that. You know, when something gets hit like that it can move anywhere." [97]
Mr Jamieson was asked to comment on Mr Clarke's responses and stated:- "I think Mr Clarke's - you know, that's possible, I suppose. I think you got to remember that this is a flexible plastic guidepost; it is not a rigid wooden one and, secondly, especially in the photograph with the man with the jeans put his hands on the knees in Exhibit G the post is mounted in a sod of earth which has, moved downhill, so everything is moving. So the static photograph list in Exhibit G is - I won't say its misleading so much but you've got to understand that the post was in a moveable downhill moving sod of earth. So its, I, I believe that the, the truck started to list, as the driver said it was probably a little ahead of the post and the, the truck collapsed into the creek and brought the sod down behind it." [98]
Then further Mr Jamieson stated:- "No, the, the photograph - shown in Exhibit G was the man that hit with the hands on his knees is more consistent with the collapse occurring on the gravel part just ahead of the posts and, and on the gravel side of the post. Its clear. I think the photograph's self evident, frankly and, the whole thing is just sort of ground down in slow motion." [99]
Both Mr Clarke and Mr Jamieson assumed reference to a flexible post. The evidence of Mr Margery was that it was a metal one. I do not regard this as detracting from Mr Jamieson's opinion as it appears to me that the reference to the flexible post related more to the view expressed by Mr Clarke.
Both experts were cross-examined. Needless to say both maintained their positions. [100]
I prefer to accept Mr Jamieson's evidence on this issue. It was given in a forthright manner and I found it persuasive. The view expressed by Mr Jamieson was also consistent with the evidence of Mr Mansfield, which I also accept. I accept the analysis of photograph in Exhibit G, to which Mr Jamieson refers. [101]
The evidence of Mrs Shoobridge as to observations made on the date of the accident are consistent with the contention that the embankment near the culvert had insufficient batter to support the weight of the vehicle on the roadway. [102]
Mr Clarke rejected the suggestion that photograph 2 in Exhibit G showed an absence of batter and the existence of a vertical slope. [103] However, he acknowledged that there was a vertical slope after the accident and an absence of batter where the wheels are because of the collapse. [104]
I am also satisfied that there was, as at the date of the accident, a deterioration in batter at the culvert site that most likely occurred due to erosion after the July 2009 works. I accept that the erosion occurred due to the inability of the culvert to dissipate the water as described by Mr Jamieson in his evidence due to the dimensions of the pipes. Mr Jamieson's report does not mention deterioration of the pipes. Mrs Shoobridge's gave evidence about deterioration of the culvert pipes. [105] Exhibit U suggests some deterioration. [106] However the nature of this deterioration and how it may have affected discharge was not explained beyond the reference in Exhibit 5 [107] .
On the evidence I cannot find that such erosion, as occurred before Mr Margery carried out his inspection on 3 September 2009, made the inspection and report prepared by him inaccurate as to the observations undertaken. In this respect Mrs Shoobridge could not identify whether her post-July complaint was made before or after Mr Margery's inspection. However her evidence regarding the difficulty taking her horse-float across the culvert was a response to a question as to the position immediately prior to 2010. [108]
Otherwise the evidence provided to me described that other vehicles including used the culvert without complaint [109] before the subject accident and there was significant rainfall in the latter months of 2009, without knowing the intensity.
I now turn to consider the various statutory provisions. In doing so I first consider the application of ss 43A and 45 of the 2002 Act which effectively constitute gateways through which the Plaintiff is required to pass.

Section 43A

The Defendant's Amended Grounds of Defence assert that by reason of ss 71 and 138 of the Roads Act 1993, the council was exercising special statutory power and accordingly pursuant to s 43A (3) of the 2002 Act, any act or omission involving the exercise on, or failure to exercise, a special statutory power, does not give rise to civil liability unless the act or omission was in circumstances so unreasonable that no authority having a special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
On the first date of the trial Mr Wheelhouse SC, counsel for the Plaintiff, objected to the proposed Amended Grounds of Defence paragraphs [17]-[18] on the grounds that the paragraphs did not particularise the special statutory power for the purposes of s 43A and, further, that it was not responsive to the Plaintiff's claim. I allowed the amendment for reasons set out in my judgment of 4 November 2014. The Plaintiff then sought to rely on a Further Amended Statement of Claim filed in Court on 4 November 2014. Following argument, the Plaintiff did not pursue the proposed amendment to paragraph [2] [110] and the Defendant did not object to the proposed additional paragraphs 6 (w) and (x). [111] These later paragraphs read as particulars of negligence: "w) Failed to place a warning sign on the roadway to the effect that the culvert was narrow or narrower that the rest of the road leading to it; x) Failed to place, in light of the condition of the culvert in that it lacked a header wall to prevent erosion and was in fact eroded, a load limit on the road to restrict and/or warn drivers of heavy vehicles not to traverse the culvert."
Whilst not opposing this amendment, the Defendant did not seek to expand the particularisation of its s 43A defence. The issue therefore will be determined by the pleadings as they stand.
S 43A reads as follows: "43A Proceedings against public or other authorities for the exercise of special statutory powers (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority. (2) A "special statutory power" is a power: (a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority. (3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. (4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."
The first issue that arises is whether the Plaintiff's claim gives rise to the exercise or failure to exercise a special statutory power. It is not in issue that the Defendant is a public authority for the purposes of the section.
The Plaintiff's submissions, simply stated, were that s 43A does not deal with the general power of a roads authority as an owner of land to have care, control and maintenance of a road. [112] In written submissions at [148]-[153] the Plaintiff contends that s 138 Roads Act 1993 is concerned with prohibiting persons from carrying out works or erecting structures on public roads without the consent of the roads authority and s 71 is a general power permitting a roads authority to carry out roadwork on public roads under its control. Reference is also made to RTA v Refrigerated Transport Pty Ltd. [113]
In written submissions, the Defendant contended otherwise and stated at [27] that the failure of the council to carry out work on the culvert will not give rise to a civil liability unless such failure was so unreasonable that no authority, such as a council, having a statutory power in question could properly consider the omission to be a reasonable exercise of power. The submission cites Curtis v Harden Shire Council. [114]
S 71 of the Roads Act 1993 states: "A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control." The Dictionary defines: ""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 or rail infrastructure) that is constructed, installed or relocated 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."
S 138 of the Roads Act 1993 states; "138 Works and structures (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty: 10 penalty units. (2) A consent may not be given with respect to a classified road except with the concurrence of RMS. (3) If the applicant is a public authority, the roads authority and, in the case of a classified road, RMS must consult with the applicant before deciding whether or not to grant consent or concurrence. (4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person. (5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section." The Dictionary defines: ""road" includes: (a) the airspace above the surface of the road, and (b) the soil beneath the surface of the road, and (c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of the road."
In my view s 138 is clear in that it requires that only someone with authority could carry out the works described therein. The need for this is obvious in circumstances involving public infrastructure. It is not a power that persons are authorised to exercise without specific statutory authority. Consistent with the decision in Curtis v Harden Shire Council, [115] the prohibition on any person carrying out works, as defined, combined with the requirement for statutory authority to undertake such activity places the grant of authority within the meaning of a special statutory power.
The Plaintiff's submissions do not address the decision in Curtis. The matters raised in the particulars of negligence, with the exception of w and x, in my view are based on an exercise or failure to exercise a special statutory power within s 43A as particularised in the Amended Grounds of Defence. It follows that pursuant to s 43A (3), liability will not arise unless the act or omission was so unreasonable that that no authority, having the special statutory power in question, could properly consider the act or omission to be a reasonable exercise of power or a failure to exercise the power. This issue was also considered in Curtis (see Bathurst CJ at [6], Beasley P at [224] and Basten JA at [227]- [279].
As the Defendant correctly points out in its submissions, the Plaintiff submitted no evidence to engage the exception in s 43A(3). [116] To this extent its action must fail. However, as pleaded, s 43A cannot extend to a traffic control facility, as defined in part 6 of the Transport Administration Act 1988, as it is excluded from the definition of roadwork under the Roads Act 1988. [117]
It is appropriate that I address this and other matters raised by the parties.

Section 45

This section reads as follows:- "45 Special non-feasance protection for roads authorities (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."
At [159] of the Plaintiff's Amended Submissions dated 10 November 2014 it is contended that, to the extent that the Defendant's breach of duty arises from non feasance, it arises from: "The failure to carry out an adequate inspection and maintenance programme; The failure to replace the culvert pipes with adequate width and diameter; The failure to add a headwall; The failure to restrict the usage of Crossing Road to light weight vehicles"
The failure to restrict the usage of the road to light weight vehicles does not appear to fall within the definition of carrying out roadwork.
In response to the Defendant's reliance on s 45, the Plaintiff puts its case at [163] of its submissions by stating:- "a) The Defendant through its employees had, 'actual knowledge of the particular risk the materialisation of which resulted in harm to the Plaintiff; or b) The Defendant had inferred actual knowledge."
In determining the specific harm to which s 45 is addressed, Adamson J in Botany Bay City Council v Latham [118] (with whom Ward and Leeming JJA agreed) stated: "[45] Ground 3 raises the application of s 45 of the Act. The "harm" referred to in the last words of s 45(1) is a reference to the "particular harm" which has resulted from the materialisation of the "particular risk", being the "particular harm" to which the determination of causation in s 5D is addressed. [46] It follows that "the particular risk" is s 45(1) is at the same level of generality. In this case, given the way Ms Latham put her case that a particular paver that was uneven or irregular caused her to trip, the actual knowledge required is actual knowledge of the particular risk posed by the unevenness or irregularity of the very paver that caused her to trip and fall. It would not be sufficient for the Council to know of the more general risk that she might trip and fall on an area of irregular pavers between the tree and the adjacent building, as was contended on her behalf on the appeal."
The particular risk in this case was the risk that the carriageway over the culvert at Greens Crossing would give way due to the erosion of batter slopes, resulting in it being unable to take the weight of heavy vehicles.
Reference is made, in the Plaintiff's submissions, to the decision of the Court of Appeal in North Sydney Council v Roman [119] and in particular to the decision of McColl JA at [255]. This was a dissenting decision. Basten JA gave the majority decision, with whom Bryson JA agreed. At [156]-[157] of His Honour's decision, it is clear that the exception to that section is activated where there is actual knowledge of an officer within the council having delegated (or statutory authority) to carry out the necessary repairs. His Honour stated:- "156.In Hodgson, knowledge reached the level of the Shire Clerk (the equivalent of the general manager under the Local Government Act) and the Council itself, which had instructed the Shire Engineer to undertake certain work. In Hill, it would seem that the Commissioner, or an officer with authority to undertake the repairs, had actual knowledge of the problem. Because the need to demonstrate misfeasance relied on evidence of repairs having been undertaken (though inadequately) those cases will inevitably involve knowledge, at least at the level of an officer with authority to undertake appropriate works. To the extent that s 45 was designed to "reintroduce a protection for certain 'non-feasance' on the part of road authorities", being the language of the Minister, it would seem that actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs. 157. This conclusion is consistent with the language of s 45(1). The section confers an immunity on a roads authority where harm arises "from a failure of the authority to carry out road work". The exception only arises where "at the time of the alleged failure" the authority had actual knowledge of the particular risk. A purposive construction would require that the relevant knowledge exist in an officer responsible for exercising the power of the authority to mitigate the harm. The existence of the power is only coupled with a duty to act in circumstances where such knowledge exists. Accordingly, the knowledge must exist at or above the level of the officer responsible for undertaking necessary repairs. The knowledge of others without such responsibility will not, relevantly for the purposes of the provision, constitute "actual knowledge" of the roads authority itself; at best it could give rise to "constructive" or imputed knowledge. The use of the term "actual" precludes reliance on constructive or imputed knowledge. It follows that, even if a street sweeper having a duty to note and report defects, was aware of the pothole, the immunity is engaged absent proof on the balance of probabilities that the officer in charge of maintenance works received that information."
His Honour further noted, without expressing a firm view that where the question of onus in relation to the exception arises, that his tentative view was that onus rests with the Plaintiff stating at [185]:- "As noted above, questions of onus were not addressed in any detail in argument. The passage from Serratore set out at [174] above appears to assume that the Plaintiff bears the onus of proving the facts necessary to engage the exception to the immunity. My tentative view is that that approach is correct…….."
Whilst special leave to appeal was granted by the High Court on 3 August 2007 the appeal was ultimately not proceeded with. Roman remains the law in this State. [120]
In my view, this is not a case where the facts are analogous to those in Angel v Hawkesbury City Council. [121] As the law stands, engaging the exception to s 45 is a matter for the Plaintiff to establish.
Even if I was to accept Mrs Shoobridge's evidence of complaints to the Defendants employee, Kathy Dennis, as detailed earlier in the reasons, I am not satisfied that those complaints amount to actual knowledge on the part of the council, such as would bring up the exclusion to the defence in s 45.
The evidence relating to Ms Dennis, was that she was positioned at the Stroud office of the Defendant Council and stated that she would pass on information. The complaint made, particularly after July 2009, where Mrs Shoobridge stated that she told Ms Dennis that the causeway was getting eroded and the pipes were deteriorating, very deteriorated. [122] Ms Shoobridge further mentioned her horse-float and that she was concerned about towing her horses across the crossing or the culvert. [123] Whilst Ms Shoobridge did state that immediately prior to 1 January 2010 she noted that the culvert was a tight fit and would she take the float across and load her horses on the other side, it was not clear that this was communicated to the Defendant at that time. [124]
The process for acting on complaints was outlined by Mr Margery in his evidence, although as was noted, he denied receiving any other complaint regarding the subject culvert, with the exception of a complaint in 2007. There is no evidence that Ms Dennis had delegated or had statutory authority to carry out necessary repairs. There was no evidence given at the trial relating to Ms Dennis' duties beyond working at the Stroud office and she was not called. The relationship between Ms Dennis and others to whom she may report was not explored.
The plaintiff also asserts that actual or inferred knowledge can arise from the inspection system adopted by the Defendant. Specific reference is made to Exhibit K which arose following the ancillary inspection. In evidence in chief Mr Margery was asked whether, following the July grading, [125] he subsequently attended Greens Crossing Road before the incident in January 2010. He stated, "No, not that I can recall. Sorry, I think that I attended for an inspection in September." [126]
Details of that ancillary roads inspection are outlined in [33]-[39] of these reasons. Mr Margery's knowledge was as described in [36]-[40] of these reasons. Mr Margery conceded in questioning that there was a risk that if there was a high intensity water flow coming into a culvert and if the culvert was insufficient to dissipate the water, the water flow would erode the batter above the pipes and further this was a risk of which he was acutely aware. This would of course occur over a period of time in the absence of other maintenance.
Mr Margery did give evidence that he was authorised, when he received a formal service request, to do an inspection and carry out necessary repairs. [127] His role however seemed to be confined to carrying out inspections and authorising maintenance and grading repairs as described earlier in these reasons. His inspection regime was clearly based on his responsibilities. The evidence does not support that he had authority within the Defendant to authorise the expenditure or approve necessary works of pipe replacement and headwall installation at the culvert site. Whatever his notation may have been on the defect form, which formed part of Exhibit 5, it appears that the person who had authority at least at the time of the accident, was Mr Bruce Anderson, who worked for the manger of Transport Assets. [128] Indeed it was not suggested that Mr Margery at any time had the control of the cost centre 329 from which it appears the necessary repairs were ultimately funded [129] . Nor was he asked to establish the cost of repairs. Mr Anderson's email referred to at [50] of these reasons and Exhibit U in the proceedings does not suggest any prior knowledge of the situation regarding the culvert. Only following the accident did he approve what he deemed appropriate. It was clear from Mr Margery's evidence that he did not regard the situation as he found it on 3 September 2009 as safety issue nor any higher than a medium priority. This would not support an inference of him passing the information of the particular risk to Transport Assets at the time. In the circumstances without further evidence I cannot accept that his knowledge of amounted to actual knowledge within the terms of s45 and nor can I infer actual knowledge in accordance with Roman on the part of the officer charged with authorising the expenditure and approving the installation of the larger pipes and headwall.
The Defendant's placement of white posts at the extremities of the road adjacent to the culvert was as suggested by Mr Wheelhouse in [165b] of his submissions. All the evidence supports that the posts were designed to delineate the trafficable surface from the adjacent grass.
The works carried out on 7 and 8 January need to be viewed in light of the provisions of s 5C(c) of the 2002 Act.
Similarly, I do not consider any implication can arise from any knowledge of the driver of the grader in July 2009. His position would be similar to Ms Dennis.
I do not accept that the s45 exception is engaged by a suggested inference of actual knowledge from the factors identified by the Plaintiff, either individually or collectively.
In the circumstances, I am satisfied that s 45(1) applies to exclude liability for non-feasance except in respect of the matter identified in [102] of these reasons. I am not satisfied that the Defendant had actual knowledge of the particular risk as required by the section.
The Plaintiff in the alternative puts its case in negligence on the basis of misfeasance based on a failure to carry out an inspection of risk programme and a failure to properly carry out a maintenance programme from 2007-2010. Although a failure to inspect is covered by the s 45 immunity, a failure to discover a defect because of a negligently conducted inspection does not fall within that immunity. The Defendant, through Mr Margery, knew of the risk of erosion and identified the culvert as one of four to be widened on 3 September 2009, shortly after it had already carried out maintenance grading on the roadway. However, in my view the immunity protects the Defendant from the failure to carry out the road works in the absence of actual knowledge of the particular risk at the time, as I have found. Further, s 43A would further protect the Defendant in the circumstances referred to earlier in these reasons.

General Principles

In addition to relying on statutory defences, the Defendant also made a general denial of liability.
The duty of care of a roads authority was stated in Stojan (No. 9) Pty ltd v Kenway [130] by McColl JA at [118] as follows: "As a roads authority, the Council was obliged, if the state of the stairs [road], whether from design, construction, works or non-repair, posed a risk to road users, to take reasonable step by the exercise of its powers within a reasonable time to address the risk."
S 5B does not define when a duty of care is owed but rather when it is breached. [131] It reads as follows: - "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
I have noted in particular the comments made by Mr Jamieson in his report, Exhibit F at p 10, quoted at [59] herein.
Mr Clarke in his report, Exhibit 2, at [43]-[44] disputes Mr Jamieson's assessment as being relevant to the road at the date of the accident as well as the assessment by scaling from the photo. Nevertheless he accepts that figure 2 in Mr Jamieson's report "shows some erosion or washout of the road formation."
As noted Mr Margery himself acknowledged the risk of high intensity water flows coming into a culvert and that, if the culvert is insufficient to dissipate the water, the water flow would erode the batter above the pipes. [132]
On the evidence I would be satisfied that the risk of harm was foreseeable, having regard to what the Defendant knew, or ought to have known. I do so notwithstanding the Defendant's response on 3 September 2009. The history of erosion has been earlier referred to in these reasons. Bearing in mind the downward slope of the roadway, the absence of a larger pipe and a headwall would appear to have inevitably resulted in the roads batter slope being eroded, with flooding making the road susceptible to edge collapse if loaded with a heavy wide vehicle, given the features of the roadway. [133]
The speed with which the Defendant carried out the remedial works and the modest cost persuades me, bearing in mind the consideration in s 5B(2), that a reasonable person would have taken those precautions. For the purposes of s 5D I would have found the council's breach was the factual cause the Plaintiff's injury.
I turn to consider the position with respect to the Plaintiff's case regarding signage as contained in its particulars of negligence x and y. As I have already found, these are not matters covered by s 43A as pleaded, nor s 45.
The Plaintiff's submissions on this issue were: " We submit that this road should have been detected and signposted as unsuitable for heavy vehicles and the application of signposts would have been a minimal expenditure. The council had a specific department set up for the purpose of erecting and determining where the signs should be placed…" [134]
It was not clear from this submission whether the Plaintiff was maintaining its pleaded position of the need for a warning sign and/or a prohibition of heavy vehicles. In his Amended Submission, dated 10 November 2014, the Plaintiff however appeared to contend that there should have been a weight restriction. [135]
The Defendant's case on this matter draws attention to the fact that the Plaintiff gave evidence that he was aware that, if he drove off the road at the point of the culvert, he would end up in the stream beside the road. [136] The submission appears to presuppose a finding on its submitted version of the facts.
In the circumstances, whilst I am satisfied that the Plaintiff has met the requirements of s 5B(1)(a) and (b), I am not satisfied that the Plaintiff has met the requirements of s 5B(1)(c). The Plaintiff's submissions on this issue focussed on the cost and ability of the Council to erect signage but not the practicalities of it doing so. The significance of Greens Crossing as a thoroughfare is detailed in [6] and [7] of these reasons. Bearing in mind the fact that it was a necessary access for service vehicles and rural landholders and was the access road for a pump station, I do not consider that the Plaintiff has established breach. [137] The Plaintiff's argument at [128(d)] of its Amended Submissions says that there is a powerful or high public utility that users of public roads are safe from harm. So much can be accepted. However, the requirement of s 5B(2)(d) is a consideration of "the social utility of the activity that creates the risk of harm".
Even if I am wrong in this view I am not satisfied that causation would have been established for the purposes of s 5D.
In Chappel v Hart [138] McHugh J stated at p 246, fn 64: "Human nature being what is, most Plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the Plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the Plaintiff's evidence. It may be a ground for rejecting the Plaintiff's evidence. But given that most Plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the Plaintiff at or about the time when the breach of duty occurred."
The Plaintiff has not particularised the precise form that any sign would take, beyond the particulars referred to in the pleadings. However, the Defendant did not take issue with this. [139] Beyond this, the Plaintiff did not articulate what evidence it relied on to establish causation on this pleading.
Insofar as particular (w) is concerned, there is no evidence that the failure (to place a warning sign on the roadway that the culvert was narrow or narrower than the rest of the roadway) caused the occurrence of the harm. The Plaintiff's own evidence was that "there appeared plenty of room" and in the area where the white posts were "it seemed wide enough." In neither the Plaintiff's oral or written submissions has a contrary case been put.
The position as to imposing a load limit to restrict and/or warn drivers of heavy vehicles not to traverse the culvert raises (particular (x)), raises different considerations.
In this case the evidence was that that the Plaintiff was attending to Mr Kent's property, which was in Green's Crossing to deliver water to clean gutters and flush the water tank as there was no drinking water. The urgency of the situation was that the delivery had to be undertaken on New Year's Day. It is clear on the evidence that there was no alternative access other than through Greens Crossing. There is no evidence of any alternative delivery means. The Plaintiff's own evidence was that he had been there "months earlier" without any problem. Any such sign would have only been brought to attention at the time the Plaintiff was attempting to traverse the culvert, when the need to effect the delivery was identified and when he already had a full load of water. There was no evidence given that he would have abandoned the journey in the face of a sign.
On the other hand a description of how he traversed the roadway indicated that he took care to travel between the posts. The Plaintiff had a truck that he had purchased for $15,000 and had spent $10,000 fitting it with wheels, brakes, paintwork, a fitted tank and registration and depended on the vehicle being intact for his livelihood.
Without any further evidence I am left in a position of conjecture and I am not satisfied that the Plaintiff has discharged the onus. [140]
Bearing in mind my findings on liability earlier I do not consider that the risk as found was obvious to a reasonable person in the position of the Plaintiff within the terms of ss 5F, 5G and 5H of the 2002 Act.
Whilst this is sufficient to support a verdict in the Defendant's favour, I should state my views on the s 42 defence should I otherwise be wrong in relation to other aspects of the Plaintiff's argument.

Section 42

The Defendant in its submissions raises s 42 of the 2002 Act. Specifically it states: [141] "One is the resources…. section, as it were, s.42 of the Civil Liability Act, not the Civil Claims Act. S.42(a) firstly notes that at P465 if your Honour, it - the section is in terms of principles that your Honour applies in determining whether the Council had a duty or has breached a duty. The first one of those is "(a) the functions required….and other resources." hardly a surprising matter but it is something that your Honour is mandated by Parliament to take into account - "(b) the general location….of its activities." Mr Margery gave evidence about the amount of money on roads they have, the amount of materials that they provided and the process that they have for viewing the road. So it is clear, and clearly enough there is not the evidence, I am not suggesting this is how much the Council had; this is how much money is spent on this, that and the other things. It is the allocation of resources in the sense that it has machinery and meant to carry out a system of inspection in maintenance in maintaining the road. Given that there are finite resources, what Mr Margery says is "well, we prioritise things. Yes, of course we could do things at any particular time. We have the resources to do that but ultimately you need to prioritise these things." I submit that s.42 is satisfied because the prioritisation is an allocation essentially of resources at particular times and that is what is not to be challenged."
The Defendant reiterated the submission in its written submissions at [25]-[26] stating: "[25] The Defendant relies upon s42 of the Civil Liability Act. Section s42 mandates that the allocation of resources by the Council is not open to challenge. In that regard the Defendant relies upon the evidence of Mr Margery that whilst he was aware that the road needed grading its status as a relatively quiet minor road meant that it did not receive immediate attention. He is not aware of any particular problem likely to lead to the imminent collapse of the road when he went there in September 2010. In deed there is no evidence that the Council knew or ought to have been aware of the imminent collapse prior to the collapse. [26] Accordingly, the suggestion by the Plaintiff is that something ought to have been done earlier, and thus utilising council resources, cannot be maintained. It is a matter of common knowledge, and the Court would be well aware, that all councils operate under budgetary constraints. In those circumstances it cannot be said that the decision making processes and expenditure priorities is adopted by the Council could be analysed to suggest that council failed to take reasonable care to protect motorists such as the Plaintiff."
During the course of the trial I asked the counsel for the Defendant how it intended to advance the s 42 argument. Mr Turnbull stated at TP 169.10-.20 as follows: "The evidence that I am going to seek to adduce is how many roads there are under his Stroud area, what resources are available in the sense of personnel to inspect and carry out maintenance of those roads, the frequency with which that is done and so on and so forth. Now, the evidence goes to perhaps to s42; it also goes to 43A, the reasonableness. But of course, there are other aspects to that as well. I will not have voluminous financial records of the Council. What I will say is the evidence of the Defendant is that it had personnel to carry out inspections. It has machinery to carry out maintenance and personnel and that, inferentially of course, it has to do that within its budget, and to suggest that it should have been done more frequently - I am not quite sure what the suggestion will be from the Plaintiff - would clearly involve greater capital expenditure by the Council…"
The Defendant, in its written submissions, referred to Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [142] in particular at [300]-[311] Campbell JA (with whom McColl JA and Sackville AJA agreed in fact stated at [299]: "[299] …... When the court makes a finding that a public instrumentality has failed to take reasonable care, by failing to spend money in some particular way, it is not finding that the officers of that instrumentality ought to have ignored the budgetary context within which they worked. After all, the rules concerning the way in which public money is raised, appropriated, spent and then accounted for are themselves rules of law, and it would be a rare case indeed (if it could ever happen) when a court could properly make a finding that performance of one legal duty required a public official to ignore another legal duty that he or she was subject to. Rather, the finding is one that has implicit in it that the ordering of priorities for expenditure of money ought, if reasonable care was to be taken, have been different to what they actually were. In fairness to the judge, it should be said that it is not at all clear that he was intending to say that the public officials involved in the present case should have ignored the budgetary constraints on them and simply spent the money."
In Bathurst Regional Council (as trustee for the Bathurst City Council Crown Reserve Trust) v Thompson [143] Hoeben JA with whom Meagher JA and Tobias AJA agreed) stated in relation to s 42 at [46]: "[46] Implicit in the appellant's submission is an assumption that the trial judge was obliged to take into account those "principles" even if no evidence of any of the matters in s42 was adduced. That is not so. A simple reading of the section makes that clear. There has to be evidence of "the financial and other resources" that are available to the authority and "the general allocation by it" of those resources. There needs to be evidence as to the range of the authority's activities. Without that basic material, a court has nothing upon which to apply the principles in the section."
At [47] - [50] Hoeben JA reiterated the principles, which underlie the correctness of the approach to s 42 as stated in the decision of Campbell JA in Roads and Traffic Authority of (NSW) v Refrigerated Roadways Pty Ltd at [395] - [450]. Those principles have been reinforced recently in Holroyd City Council v Zaiter. [144]
The evidence presented by the Defendant on this issue was that the Defendant had 460 kilometres of unsealed road with 183 kilometres being in the Stroud region. [145] Mr Margery advised that there were seventeen staff to look after maintenance in the Stroud region but he was not aware of the number in the three other zones that the council had. [146] He indicated the different types of machines which the council had for the purposes of road grading. [147] He outlined the categorisation of roads into categories, 1, 2, 3, and 4 and a 6th category of not maintained roads. Of the four maintained road categories, he indicated that Greens Crossing Road was the least maintained, being a Category 1 road. [148] The type of traffic, the volume of traffic, the importance of the road in relation to whether it was a link road or a no-through road determined the difference between the categorisations. Being in the least maintained category, the roadway was generally subject to maintenance once per year, and the inspection was looking for severe amount of potholes, a general lack of gravel, guide posts on culverts, dangerous trees on the side of the road that could drop a limb. [149]
The Plaintiff disputed the Defendants reliance on s 42 asserting that this does not meet the Plaintiffs case on negligence. At [146] Mr Wheelhouse, senior counsel for the Plaintiff states: - "The Plaintiffs case on negligence was not directed to a challenge to general allocation of resources by the Defendant; this would be contrary to s 42(b). The Plaintiffs case was directed towards the failure of the Defendant to adequately inspect for hazards that caused risks to users, adequately maintain Greens Crossing and control usage of Greens Crossing where it had adequate resources to do so, in the context of the foreseeability of harm, the risk to the Plaintiff and the burden of taking precautions reasonably necessary to avoid the harm."
Consistent with the authorities referred to above, I do not consider that the case advanced on behalf of the Plaintiff raises an issue of the general allocation of resources under s 42. Rather the issue goes to the particular allocation of resources, in terms of council priorities. The Defendant's case in my view has not engaged s 42.

Nuisance

The claim in nuisance was pleaded at [5] of the Further Amended Statement of Claim but not particularised as required by UCPR 15.1(1). No details as to how the claim is put were provided in the Plaintiff's opening. In closing submissions it was reactivated in a three paragraph submission by the Plaintiff referring, at [172], to the fact that, historically, obstructions and subsidence were considered nuisances. The Plaintiff maintained the claim without particularising it and asserting (relying on Brodie at [129]) that it has been absorbed into the law of negligence although not abolished. In Rickard v Allianz Insurance Limited and Ors [150] Hoeben J referred to Brodie at [129] stating: "[186] While there are good reasons for believing that this is a correct statement of the way in which the law is developing, in the absence of a clear statement to that effect by the High Court or an intermediate appellate Court, I am not prepared to accept the submission. Moreover, what was meant by their Honours when they referred to "highway cases" is not clear. Statements by the majority at other places in Brodie suggest a more limited application of the principle: "(50) These applications for special leave to appeal from decisions of the New South Wales Court of Appeal were heard consecutively and raise a fundamental question respecting the common law of Australia. This is the applicability of the principles of the torts of negligence and of nuisance in actions against public authorities on which statute confers powers for the construction, maintenance and repair of public roads, including bridges, culverts and footpaths" (emphasis added)."
In the circumstances and bearing in mind my earlier findings, it is unnecessary to consider this matter any further.

Contributory Negligence

Consistent with my earlier findings, no issue of contributory negligence arises under s 5R of the 2002 Act.

Damages

Should I be wrong on the issue of liability, I set out below my view on the damages I would have awarded had the Plaintiff been successful.
Following the accident and the roll-over of the Plaintiffs truck, the evidence disclosed a dislocated right shoulder as the Plaintiff held on to the steering wheel with his right arm. He was apparently able to self reduce the shoulder with difficulty. [151]
An ambulance was called and a sling was provided.
Five days after the accident the Plaintiff saw Dr Patel who noted localised tenderness around the right elbow and restricted movement of the right shoulder. [152]
An x-ray of the elbow was carried out on 7 January 2010 by Dr Barry Soans, which showed abnormality of bone architecture and demonstrated no fracture. [153]
The Plaintiff's insurance provider, CGU, referred him to Work Focus Australia for occupational rehabilitation assessment. [154] On 22 January 2010, Megan Taylor for Work Focus Australia reviewed the Plaintiff. Her report noted that the end date for total incapacity was 4 February 2010, and Mr Mansfield was considering engaging an additional staff member to assist with duties outside his physical capabilities, if financially viable. The report further noted that the Plaintiff had right shoulder pain with resulting functional restrictions in relation to overhead movement, lifting and supporting weight to the right upper limb (eg; ladder climbing). [155]
The Plaintiff saw Dr Patel on 3 February 2010 when it was noted that his shoulder movements were of a full range but clicking at times. There was no significant pain. He was advised to have a further x-ray and an ultrasound and was declared fit for suitable duties for 4 February 2010 to 25 February 2010 with a further review scheduled for 25 February 2010. It was noted that the Plaintiff's restrictions included not to lift more than 12kgs, no climbing and to avoid heavy use of the right shoulder. [156]
Dr Patel saw the Plaintiff on 20 March 2010, at which stage he was recorded as mentioning that he was back at work on suitable duties. He had apparently purchased another truck and was doing different work. [157]
The Plaintiff explained this in his evidence at TP 24.10 2.30. He stated that he did not do any sort of water truck work that involved the delivery of fresh water. His vehicle in any event was not usable. This he described as follows; - "A. It was bowed in the middle and had a crack down one side, which I tried to fix by putting a - I drilled it out and put a plate with a valve on it, and I did put it on another truck for a little while, but it wasn't that successful, and so, I sold it, I sold it at the auctions." [158]
Whether or not the Plaintiff intended to return to water trucks, if he could have repaired it, is unclear. However, what is clear is that he gave up water truck work that involved the delivery of fresh water, although he stated that there was a bit of "dust suppression" work and in which case he mainly used tippers, where he was able to operate virtually everything from the cab. [159]
The Plaintiff then changed his work practices stating at: - "I changed it in the way that I would not have to be so physical, but most of the operations were done from the cab. I, I did, I sourced tipping work, where you get loaded by a machine, you, you open the tailgate from inside and so you're virtually in the cab most of the time, much less physical." [160]
On 26 March 2010, Dr Lai performed an x-ray and ultrasound of the right shoulder. This noted a subluxed biceps tendon, painful bunching of the subacromial bursa and a bony defect corresponding to the Hill Sach lesion on x-ray. He was considered for an ultrasound guided injection of local anaesthetics and steroid and referred to Dr Posel. [161]
In the meantime, a Work Focus report by Megan Taylor of 22 April 2010 noted that the Plaintiff was coping with current suitable duties, despite ongoing symptoms and functional limitations. [162]
The Plaintiff saw Dr Posel on the 23 April 2010. Dr Posel's report noted that the assessment of the right shoulder revealed a glenohumeral joint discomfort. The shoulder had a full range of motion with circumduction exercises, a clunk was noted at 45 degrees. [163] Dr Posel concluded: - "John has almost certainly suffered an anterior - inferior labral tear to his right shoulder with his shoulder dislocation on 1 January 2010. In order to assess the size of such and whether a debridement and /or repair of the lesion is required, I have arranged an MRI arthrogram of the right shoulder and will review John subsequently." [164]
An arthrogram was carried out on 20 May 2010 by Dr Yousaf. The report stated: - " Medially displaced LHBT. Subscapularis tendinopathy and delamination centrally. Small anterior labral tear extending from approximately 1 o'clock to 4'clock positions. No substantial labral tear. No inferior labral tear but there is heterogeneity to the inferior labrum consistent with likely previous injury. There is no bony Bankhart lesions. There is no supraspinatus or infraspinatus major tear, but there is evidence of mild bursitis and impingements." [165]
Dr Posel saw the Plaintiff again on 20 May 2010 and recommended an arthroscopic debridement of the shoulders, tenotomy and subsequent tenodesis of the dislocated long head of biceps tendon from the bicipital grove, arthroscopic acromioplasty and, in the unlikely event that there was deep partial thickness rotator cuff tear, associated mini open rotator cuff repair. [166]
The Plaintiff was advised post-surgery that he may require formal physical therapy once a week for 6 weeks. He would be immobilised in a sling for three weeks to protect the biceps tenodesis. Following such, he could drive a car but it would be two to three months before being able to drive his heavy rigid truck and associated duties once again. [167]
In the meantime the Plaintiff's evidence was that he was off work for a total of seven weeks due to a combination of his injuries, not having a truck and looking for new work. [168] To fit in with his work commitments, however, surgery was delayed until the 16 September 2010 at the East Maitland Private Hospital. [169] The operation did not take place on that occasion as the Plaintiff went to the Northern Territory to supervise the shutdown of a uranium mine. He was away for three weeks and the operation came to be postponed until 9 December 2010.
By December 2010, however, his work had apparently built up to the point where he could not afford to take time off. Apparently, work had started at the Bulahadelah bypass and the Plaintiff was, to use his terms, "put on the books' and "it was like being at home." [170]
The Bulahdelah job went for approximately one year. [171] The Plaintiff asked Dr Posel to postpone the surgery again. The work ultimately concluded towards the end of 2011. [172]
The Plaintiff did not have the surgery until 21 August 2013. He stated in his evidence that the reason for this was not because he did not want to give up work, but rather, the Workers Compensation Insurer wanted to have him reassessed and it took time. [173] A further referral was made to Dr Posel on the 29 April 2013 from Dr Patel. [174] That referral noted that the Plaintiff had seen his General Practitioner in March 2010. On 5 April 2013, CGU wrote to Dr Posel about participating in a consultation to discuss potential surgery and ongoing injury management. Dr Posel saw the Plaintiff on 2 May 2013 and rearranged to perform the operation on 12 June 2013 at Lake Macquarie Private Hospital. His report noted, "ongoing ache in right shoulder and difficulty surfing as well as discomfort when using a heavy hammer out to the side or overhead." [175]
It was at that point that there were delays in approval by CGU as evidenced in correspondence with Dr Posel. [176]
The operation report is to be found at p 124 - 25 of Exhibit E. It noted the rotator cuff was in tact on its bursal surface. The report of Dr Posel (p 125, Exhibit E) states: - "Post operatively, John won't be required to keep his right arm immobilised in a sling for long and he should aim to regain a full passive range motion of his right shoulder in all planes as soon as possible and then aim for a full active range of motion in all planes. It should be feasible for John to return to work next week in a suitable duties supervisory capacity, aiming to resume all of his usual truck driving duties, etc. by three months post surgery."
The report of Dr Posel, dated 18 February 2014, [177] noted that the Plaintiff had been reviewed by him on 15 October 2013 and that he reported that he was happy with his right shoulder progress and had already regained full active forward flexion, abduction and internal rotation of the right shoulder. Dr Posel noted that there was still a loss of ten percent of full shoulder external rotation, however, no residual supraspinatus tenonopathy or impingement syndrome. The long head of the bicep muscle contour was good and the bicep stress test was negative.
Ultimately Dr Posel opined "Prognosis for the right shoulder was good; - he did not for see that early degenerative would preclude a return to work as a boilermaker, truck driver nor labourer in years to come; - he placed no restriction on Mr Mansfield's work activities by reason of the right shoulder; - he considered Mr Mansfield would be able to sustain a full working life for the next fifteen years as a boilermaker, truck driver and labourer; and - has not recommended further monitoring of Mr Mansfield's right shoulder for medical management."
When Dr Posel asked the Plaintiff in evidence about his ongoing disabilities post the operation in 2013, he stated, a bit of stiffness and soreness with overhead operations, anything holding and working overhead. He stated he would not try to lift weights overhead and though he climbed once very carefully, it was not recommended. [178] The Plaintiff stated that at the present time he was working at the Byron Bay bypass using tip trucks. He had been working there and came back home every two to four weeks. He had apparently been working there for a year and three months before the trial and his presence depended on weather. If not required for Saturday work, he would return to Stroud in accordance with the sequence previously described. [179]
Dr Champion saw the Plaintiff on 3 August 2011 and 25 February 2014. Three reports are in evidence dated 8 August 2011, 25 February 2014 and 17 June 2014. [180] In the report of 25 February 2014, Dr Champion opined: - "On present assessment, Mr Mansfield is probably fit for long term truck driving, although it would be wise for him, given the degenerative changes in his shoulder and the risk of exacerbation of pain, to minimise lifting and carrying. If he were required to be involved in repeated lifting and carrying, very likely there would be a return to significant pain which could put him out of work, at least for some weeks or months. It would be unwise for him to take that risk. Otherwise the long-term prognosis seems not too bad, mainly more of the same, that is residual discomfort and slight reduction of full function of the shoulder. Provided the minor restrictions are maintained there is a reasonable probability that Mr Mansfield could continue working as a tip truck driver long term. However, one cannot be certain about the long-term prognoses. There may be some progression of the aggravated osteoarthritis of the acromioclavicular joint and osteoarthritis and other degenerative changes in the glenohumeral joint and the tendons of the shoulder joint complex." [181]
After having been provided with a copy of Dr Posel's report of 18 February 2014, Dr Champion stated in his report of the 17 June 2014: - "…. Our Orthopaedic colleagues do tend to be very optimistic which has numerous benefits, but in my view the statements by Dr Posel about fitness for work and prognosis were probably over-optimistic. I think it would be fair to say that we physicians do tend to be more cautious. In Mr Mansfields case specifically, there is a fair amount of damage to the right shoulder and I would be fairly confident that unrestrained use of the shoulder would lead to further degenerative changes and increase risk of pain-related disability." [182]
Dr Stephen Buckley, Consultant Physician in rehabilitation medicine on 22 September 2011, and 17 February 2014, also saw the Plaintiff. The reports are in evidence dated 2 November 2011, 14 February 2014, 7 March 2014 and 13 June 2014. [183] Dr Buckley noted that Mr Mansfield had had a good outcome from his shoulder surgery, however, there remained a mild restriction in the range of movement of the shoulder and that this was probably permanent. In his view there was a significant risk of further injury to the shoulder if the Plaintiff continued heavy manual work but that he was fit for light manual duties. He considered that the Plaintiff would require further modifications to his truck for power steering and automatic transmission. [184] Upon receiving the report of Dr Posel of 21 August 2013, Dr Buckley, in his further report of the 13 June 2014, did not change his opinion. [185]
Dr Harvey - Sutton, Consultant Occupational Physician on 2 December 2011 and 24 February 2014, also assessed the Plaintiff. The four reports were in evidence dated 16 December 2011, 10 April 2012, 28 February 2014 and 6 June 2014. Following the operation, Dr Harvey - Sutton opined that the Plaintiff was a hard working man from his clinical presentation, however she considered restrictions and modifications made to his work, including no longer having a water truck and doing water truck work and no longer performing swinger tailgate work, including rock carrying where required, because of the nature of his injury and subsequent surgery. [186] She also noted some recreational difficulties such as overarm swimming albeit she noted that he could paddle board ride. The Plaintiff gave evidence about turning down "rock work" at TP 45.5 -.32.
Finally, in the Plaintiff's case, a report was tendered from Dr Vijay Maniam, dated 17 April 2014, in which the view is expressed that in light of the Plaintiff's restricted range of movements, he will eventually develop traumatic arthritis in the glenoid humeral joints. It was noted that there would be an impairment of his physicality in view of the restricted range, noting that he is right hand dominant. Dr Maniam anticipated significant absences from work due to recurring pain.
Dr Anthony Smith examined the Plaintiff on behalf of the Defendant on 28 February 2012 and 13 December 2101. His reports dated 2 March 2012 and 13 December 2013, being Exhibit 3 in the proceedings.
In his report of 2 March 2012, Dr Smith found that the Plaintiff had pre-existing osteoarthritic change in the glenohumeral joint. He found that the Hill Sach's lesion was a result of the dislocation of the right shoulder. He stated that the symptoms came from a combination of osteoarthritic change and the glenohumeral joint. The Hill Sach's lesion was noted to normally produce any symptoms. It was stated that they can be part of a recurrent dislocation problem, but that does not occur very often in the Plaintiff's age group. Dr Smith opined that the prognosis for the shoulder was to remain much the same and gradually become worse through the passage of decades. He stated that he will not require any hospital, medical or pharmaceutical treatment.
Dr Smith's view was not supported by Dr Posel, who as I have already observed, operated on the Plaintiff on 21 August 2013, with the workers compensation insurer CGU agreeing to fund the surgery. Dr Posel's report dated 21 August 2013 [187] noted:- " Arthroscopy of the shoulder revealed anterio superior glenoid labral tearing with instability of the long head of the biceps insertion here. The glenoid labral tearing was debrided. The long heads of the biceps tendon was tenotomised at its insertion on the superior glenoid rim and allowed to retract down to the bicipital groove and out of the shoulder joint for tenodesis later in the operation. Mild tearing of the posteo superior glenoid labrum was also debrided. There was no evidence of a Bankart lesion anterio-inferiorly. There was evidence of very early degenerative change of the humeral head inferiorly. The rotator cuff was in tact. There was mild inflammation on the deep surface of the supraspinatus by virtue of the impingement syndrome."
Following the surgery, Dr Smith reported on 13 December 2013 [188] that the arm appeared to have improved, following the operation. He believed that the Plaintiff had pre-existing arthritic change in his glenohumeral joint but, contrary to his earlier report, opined that he was going to continue to improve.
Dr Posel in his report dated 18 February 2014 [189] noted that he last examined the Plaintiff on 15 October 2013. He stated that the prognosis for the right shoulder was good and that the Plaintiff had very early degenerative changes, but did not foresee that this would preclude a return to work as a boilermaker, truck driver and labourer. He stated that Mr Mansfield would be able to sustain a full working life for the next fifteen years and placed no restrictions on work activities by virtue of the right shoulder injury.
I prefer the views of Dr Posel to Dr Smith. I am satisfied that Mr Mansfield is an industrious and hard working individual who will be able to continue working till sixty seven, notwithstanding any residual effects of his injury. He is self-employed and, to his credit, is resourceful and has done well to get himself back to work. The operation appears to have been successful. Dr Posel's view that the degenerative change in the humeral head of his shoulder joint is very early and may or may not deteriorate. However, he did not foresee that the early degenerative changes would preclude a return to work as indicated.
On the evidence, I am satisfied that it would be appropriate to some allowance by way of buffer based on the Plaintiff's earnings due to residual disability. I am satisfied that that residual disability is likely to impair the Plaintiff's earning capacity in the future albeit to a modest extent.
Past economic loss, I would allow for the years from 2010 to 2013 as claimed (being satisfied that they are caused by the injury) as follows:- 2010-11 $8,777.38; 2011-12 Nil; 2012-13 Based on a net weekly wage of $1,150.42 minus $790 net weekly earnings a loss of $18,739; 2013-14 Based on a net weekly wage of $1,178.03 after deducting net weekly earnings of $499.17 an amount totalling $35,300.72; and making a total of past economic loss in the sum of $62,817.10
Adjusting for inflation and utilising the consumer price index for Australia, I find that the Plaintiff's net weekly earnings, based on a 2010 figure of $1,097.23, would be an amount of $1,206.30. Using this as a guide I would have proposed an allowance for future economic loss by way of buffer in the sum of $50,000.00 representing in broad terms around nine months of income.
Accordingly my allowance for past and future economic loss would have been $112,817.10.
In relation to Fox v Wood the agreed amount of $705.35 would have been allowed.
In relation to past loss of superannuation, I would have allowed 11% on net past economic loss being an amount of $6,910.00 pursuant to s 15C.
In relation to future medical expenses, I have noted that Dr Maniam gave an extensive list of future treatment estimates in his report, which is located at Tab 19 of Exhibit E. That assessment is based on the view that the Plaintiff will develop traumatic arthritis in the glenoid humeral joints. A different view is expressed by Dr Buckley in his report, dated 13 June 2014, where he opined that the Plaintiff would need two General Practitioner reviews and six physiotherapy treatments annually, which, based on the charge rates contained in the report of the 7th of March, 2014, would total approximately $798.00 per year.
The Plaintiff's evidence is that he does not have continuing medical needs in the form of physiotherapy or anything like it, although he does use Difflam and occasionally Dolaset.
Accepting that the Plaintiff may require occasional physiotherapy and some medication in the future I would have allowed a buffer for future medical expenses of $7,000.00.
In respect of past domestic care the Plaintiff relies inter alia on the reports of Trudie Walker, Occupational Therapist Exhibit E (16) and (17) and has particularised the claim of 987 hours of gratuitous care. It is clear from that evidence however that even accepting that it at its highest the Plaintiff does not meet the threshold in s 15(3). Accordingly no allowance can be made under this head.
In respect of future domestic care I have noted the report of Dr P L Harvey-Sutton, [190] dated 16 December 2011, in which she states that in the past, currently and in the future, the Plaintiff will rely on an average of four hours of assistance per annum and an increased amount of assistance in the post operative periods following surgery for the right shoulder. In a report, dated 10 April 2012, [191] she indicated that due to a typographical error, the report should have read per month, rather than per annum.
Dr Buckley in his report dated 2 November 2011, [192] stated that Mr Mansfield was unfit to undertake the ordinary outdoor handyman duties including, for example, truck maintenance duties and would have required the equivalent of four hours per week to continue these duties by a paid handyman.
After being supplied with the reports including those of Trudy Walker, [193] Dr Buckley, in a report dated 7 March 2014, stated that he now believed that the Plaintiff was fit to conduct his handyman duties.
Dr Harvey-Smith, in a report dated 6 March 2014, [194] noted that the Plaintiff was living away from home in a caravan and indicated that he was able to look after the caravan and return home on weekends. He used to have a gardener at a cost of $60.00 per session, about twice a month in the summer. As far as exercise was concerned, she indicated that he did the climbing up the wall exercises and was advised to be active. It was noted that he was driving a car with a manual transmission.
On the evidence, I am not satisfied that it is appropriate to allow domestic assistance at commercial rates for vehicle washing services. These are carried out on behalf of the Plaintiff's employer who remunerates the Plaintiff. As I understand the situation the cost is that of using a high-pressure hose to clean a commercial vehicle in Byron Bay. There is no evidence that the Plaintiff whose claim in made on an hourly basis for services incurs any personal expense in performing this task.
As to gardening, the evidence is that the Plaintiff is working away from home [195] and accordingly unable to attend to any task. He concedes that he could do lawn moving using the ride on mover. The Plaintiff's partner, Mrs Steel, gave evidence that she pays a Mr Luke Ray for gardening $60 per week but that includes lawn mowing. I accept that the Plaintiff may have difficulties doing pruning and whipper-snipping bearing in mind that the evidence supports the fact that he lives on a large property with a lot of trees. The Defendant does not dispute a commercial rate of $40 per hour. The precise extent of the work required however is not clear. I note that the figure given to Dr Harvey Sutton and referred to at [207] of these reasons is less frequent than weekly.
Taking all things into account I accept that the Plaintiff may require assistance with whipper-snipping and pruning of trees and I propose to would allow on an average basis one hour per week. Based on a life expectancy of 31 years and a 5% multiplier of 833.8, this equates to an amount of $33,352.
In respect of non-economic loss, I would have allowed an amount of 22% of the most extreme case, being $25,500.
Although the Defendant has raised the application of s 151Z (2) of the Workers Compensation Act 1987 and has suggested a reduction based on the employer's liability of 20%, it has not been articulated on what basis this is derived. In the circumstances I would not make any deduction.
Accordingly the damages calculation in summary totals $186,284.45
In the circumstances there will be a verdict and judgment for the Defendant.
The Plaintiff is to pay the Defendant's costs.

Endnotes

Hereinafter referred to as the 2002 Act.
(2008) 51 MVR 549; [2008] NSWCA 355 at [98].
TP 4.42.
TP 51.41.
TP 52.4.
TP 67.15.
Exhibit. 2 [15].
Exhibit. 2 [16].
Exhibit. 2 [17].
Exhibit. 2 [26] and photograph I.
TP 18.25.
TP 17.35-18.10.
TP 18.50.
TP 19.4.
TP 19.5-15.
TP 19.45.
TP 20.5.
TP 20.10.
TP 20.15-30.
TP 32.12.
TP 32.15-33.17.
TP 33.35.
TP 34.4.
TP 36.45.
TP 37.3.
TP 37.35.
TP 57.1.
TP 57.12.
TP 58.48.
TP 59.5.
TP 56.30-40
TP 64.10.
TP 68.5.
TP 65.1-66.10.
TP 66.15.
TP 68.22-.27.
TP 64.40-.42.
TP 162.17-25.
TP 175.10-30.
TP 175.35.
TP 176.5.
TP 189.50.
TP 190.5-.15.
TP 189.45.
TP 180.40.
TP 178.10-.35.
TP 181.35.
TP 181.50-182.4.
TP 197.50.
TP 198.20.
TP 198.5.
TP 182.27.
TP 182.35.
TP 182.45.
TP 183.20.
TP 183.30.
TP 183.35.
TP 55.35-.50 - see also [22] above.
TP 56.3.
See also [32] above.
TP 213.10
TP 221.38-.47.
TP 60.29.
Exhibit. U.
TP 184.35.
TP 201.14- 201.27.
TP 185.42.
TP 184.50-185.35.
See Exhibit. U.
Exhibit. U.
TP 189.1-8.
TP 191.35.
TP 191.32.
TP 207.5 - 10.
TP 194.5 -10.
TP 194.25.
see [50] above.
TP 196.36.
TP 198.28.
TP 200.20.
P2 of Exhibit.F.
See [30]-[32] above.
[4] Exhibit. 2.
TP 128.25-129.10.
TP 129.15.
TP 129.25.
TP 129.22-130.17.
References to photographs 6 and 7 are part of Exhibit. G and contained in Exhibit. F.
TP 124.17.
TP125.1.
TP185.35.
Exhibit 2 [52].
TP 19.5, TP 20.10, TP 37.34, TP 39.36 and TP 46.10-30.
TP 147.1-.42.
TP 148.36.
TP 150.15.
TP 150.23.
TP 150.45.
TP 151.12.
TP 164-161.
TP 132.45.
TP 60.30.
TP 139.45.
TP 140.14.
TP 56.4
See also [50] above
See [36] above
TP58.50-59-5.
TP 189.40
TP 13.20-30.
TP 12.15.
TP 226.25.
(2009) 77NSWLR360 at [363]-[376].
(2014) 68 MVR 1.
See Baseten JA at [248]-[254] with whom Bathurst CJ agreed at [4].
Defendant's written submissions at [32].
See [89] -[90] above.
[2013] NSWCA 363.
(2007) 69 NSWLR240.
TP see Cavric v Willoughby City Council [78] [79].
[2008] NSW CA130, Beasley and Tobias JJA at [46]-[48] (with whom Spigelman CJ and Giles and Campbell JJA agreed).
TP56.4.
TP55.38-50.
TP 59.5.
See [33]-[34] above.
TP 181.30.
TP 176.5.
TP190.50-191.
TP191.20
[2009] NSWCA 364.
Sheehan v State Rail Authority [2009] NSWCA 261, per Beazley JA at [55], (Giles JA agreeing).
TP 197.43.
See Bellingen Shire Council v Colovon Pty Ltd [2012] NSWCA 34.
TP 225.20.
Plaintiff's Amended Submissions dated 10 November 2014 [111]-113,[126] and 170.
[5] Defendant's written submission.
See Colovon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355 where a similar argument was abandoned by the Plaintiff.
(1998) 195 CLR 232. See also Kirby J at 272 and Gleeson CJ in Rosenberg v Percival (2001) 205 CLR 434 at [16].
Nagle v Rottnest Island Authority (1992-3) 177 CLR 423 at 431-2.
Luxton v Vines (1952) 85 CLR 352 at 358-360.
TP 214.1.
[2009] 77NSWLR360 .
[2012] NSWCA 340.
[2014] NSWCA 109 at [96].
TP 173.35 -40.
TP 173.10 -15.
TP 173.30.
TP174.
TP 175.25.
54 MVR 214 and [2009] NSWSC 1115.
See report from Dr Posel, 23/4/10 Tab 11, Exhibit. E.
Tab 15, Exhibit. E.
Tab 1, Exhibit. E.
Tab 15, Exhibit. E.
Tab 5, Exhibit. E.
Tab 15, Exhibit. E.
See report of Dr Patel dated 19/7/10 Tab 15, Exhibit. E.
TP 21.5.
TP 24.22.
TP 24.30.
Report of Dr Lai dated 26 March 2010 Tab2, Exhibit. E.
Tab 6, Exhibit. E.
Report of Dr Posel 23 April 2010 Tab 10, Exhibit. E.
Tab 10, Exhibit. E.
P104, Exhibit. E, Report of Dr Yousaf dated 20 May 2010.
P102, Exhibit. E.
P132 - 133.
TP 40.33.
P106-7, Exhibit E.
TP 41.28.
TP 41.37.
TP 43.10.
TP 43.17.
Tab 10, Exhibit E.
Tab 10, Exhibit E.
Tab 10, Exhibit E.
Tab 14, Exhibit E.
TP 27.35 - 45.
TP 30.12 - 30.
See Tabs 18,19 & 20, Exhibit E.
Tab 18, Exhibit E.
Tab 20, Exhibit E.
Tabs 21, 22,23 & 24, Exhibit E.
Tab 23, Exhibit E.
Tab 24, Exhibit E.
Tab 27, Exhibit E.
Tab 8, Exhibit B.
See Exhibit E.
Tab 14, Exhibit 14.
Tab 25, Exhibit E.
Tab 26, Exhibit E.
Tab 21, Exhibit E.
Located in Tab 17 & 18 of Exhibit E.
Located at Tab 28 of Exhibit E.
See TP 30.30-40. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2015

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