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[2005] NSWSC 7
Supreme Court of NSW
2004-11-17
Studdert J, Exhibit P
Original judgment source is linked above.
CITATION : Watt v Copmanhurst Shire Council [2005] NSWSC 7
HEARING DATE(S) : 25 October-4 November, 8-11 November, 15-17 November 2004.
DECISION : (1) I find negligence to have been proved. (2) I find contributory negligence to have been proved. (3) Total damages are agreed at $6,500,000. (4) I find it to be just and equitable, having regard to the plaintiff's share in the responsibility for the damage, that the plaintiff's damages should be reduced by one-third. (5) Accordingly, (omitting cents) damages are awarded to the plaintiff in the sum of $4,333,333. (6) Costs are reserved.
Australian Capital Territory v Kitt [2004] NSWCA 444 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Manly Council v Byrne [2004] NSWCA 123 Nambucca Shire Council v Connor [2004] NSWCA 13 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 alr 532
Jon Watt (Plaintiff) PARTIES : Copmanhurst Shire Council (Defendant)
B.M. Toomey QC/M.A. Kumar (Plaintiff) COUNSEL : M.T. McCulloch SC/D. Villa (Defendant)
MBP Legal (Plaintiff) SOLICITORS : Phillips Fox (Defendant)
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
JUDGMENT 1 HIS HONOUR: In this cause the plaintiff, Jon Watt, sues Copmanhurst Shire Council seeking damages in respect of severe spinal injury suffered after a vehicle the plaintiff was driving left the roadway. 2 Proceedings were commenced against the Roads and Traffic Authority of New South Wales as first defendant and Copmanhurst Shire Council as second defendant. As against each defendant, the plaintiff's claim was pleaded in negligence, the central allegation being that the accident occurred by reason of negligence associated with the conduct of roadworks. Each defendant denied negligence and pleaded contributory negligence and cross claims were pleaded as between the two defendants. Settlement was reached in relation to the proceedings against the first defendant, judgment being entered in its favour on the plaintiff's claim, and the cross claims were accordingly dismissed. So it is that the action proceeded to trial only as between the plaintiff and the defendant council. 3 The parties have agreed that if the plaintiff is successful on the issue of liability, his damages should be measured at $6,500,000, subject to any deduction, if appropriate, for contributory negligence. That agreement is recorded in Exhibit P, and the parties are to be congratulated upon reaching it. 4 The accident giving rise to this claim occurred on the Summerland Way north of Grafton at approximately 4.00 pm on 24 March 1998. That road was described in the evidence as running generally north and south between Casino and Grafton. The road had a bitumen surface and gravel shoulders. The evidence established that the plaintiff's vehicle, after leaving the roadway, collided with an embankment on the eastern side and came to rest at a point approximately 200 metres north of the intersection of Summerland Way and Gurranang Railway Station Road. The latter road runs off Summerland Way on the eastern side. (I will refer to it hereafter as Gurranang Road.) 5 The evidence further established that roadwork was being done by the defendant at the time of the plaintiff's accident, but the precise nature and location of work being undertaken will call for close scrutiny later in this judgment. 6 What caused the plaintiff's accident was very much in issue at trial. Put shortly, it is the plaintiff's case that the accident was due to the sudden appearance of a kangaroo, necessitating evasive action and braking by the plaintiff, and because there was loose gravel on top of the bitumen surface, the vehicle fishtailed and loss of control led ultimately to the vehicle coming into collision with the embankment adjacent to the eastern shoulder of the roadway and overturning before coming to rest on its wheels. The defendant submitted that the plaintiff's version of the accident ought not to be accepted and denied that there was loose gravel on the roadway causative of the harm suffered. 7 Mr Toomey acknowledged that the appearance of a kangaroo and the presence of loose gravel on the bitumen surface of the roadway in the relevant location were crucial ingredients in the plaintiff's case. The evidence that bears upon these matters demands close attention. 8 The plaintiff was the only occupant of the car involved and there was no independent eye witness to what occurred. 9 The plaintiff is a young man who was born on 1 May 1979. At the time of the accident he had a provisional licence, and owned a 1981 Holden Gemini sedan which his evidence established to be in good order. The plaintiff had owned that vehicle for six months before the accident and the journey I am about to describe was the first long journey he had done in the car. On Monday 23 March 1998 the plaintiff left Sydney to drive to Bellingen where his father was living. He then drove to Grafton and stayed overnight there with his grandparents. The plaintiff then travelled on to Lismore to visit a friend, using the Summerland Way. He also visited his aunt in Alstonville before setting off to return to Grafton where he intended again to stay overnight with his grandparents. This return journey took the plaintiff back to the Summerland Way and he proceeded to travel along it in a southerly direction towards Grafton. 10 The plaintiff gave the following account of his accident in his evidence in chief (T 10-11): "Q. And what speed were you driving along it generally? A. 80 kilometres.
Q. In the couple of kilometres before your accident do you remember seeing any speed signs? A. No.
Q. Do you remember seeing any signs indicating roadworks? A. No.
Q. Before the general vicinity of the point where your accident happened was the sealed surface of the road clear of any material such as gravel or dirt or anything like that, the road generally ? A. Yes .
Q. Did that change at any point ? A. No .
Q. What do you remember about your accident? A. What do I remember? A kangaroo jumping from the right-hand side and then I - swerving to the left and going straight for a guide post and beyond the guide post an embankment.
Q. Did you do anything when you swerved? Did you only swerve or did you do anything else? A. Just braked.
Q. Is there any gap in your recollection or could you remember the whole of the time from the kangaroo coming out? A. Do you mean wake up?
Q. From the time you saw the kangaroo until the time that you hit the guide post do you have a complete memory? A. Not complete.
Q. When you were about to hit the guide post in what direction were you pointing in relation to the road? Were you parallel or not parallel? A. Not parallel.
Q. What was the terrain behind the guide post as you were heading towards it? A. Dust or dirt, loose gravel, not sealed material.
Q. Was it flat? A. Embankment beyond the guide post.
Q. So as you were heading towards the guide post behind the guide post was an embankment? A. Yes.
Q. And do you remember going up on that? You remember the car going up on the embankment? A. No, I remember the guide post.
Q. That's all you remember until you came to in the car? A. That's right.
Q. It was after your accident, after your injuries? A. Yes.
Q. Can you tell us what the nature of the surface of the road was in the vicinity where you saw the roo ? A. On embankments loose dirt, dust, gravel and on the road surface sealed but with gravel with track marks through it .
Q. How far back from the point where you saw the roo was there such gravel on the road? You are coming from the north, right? A. Yes.
Q. How far north of the point where you saw the roo was there gravel on the road ? A. Don't remember ." (Emphasis added) 11 I shall return to a consideration of the evidence the plaintiff gave about the condition of the roadway, but I address firstly the issue concerning a kangaroo.
Was there a kangaroo? 12 In cross examination the plaintiff said (T 69-70) that the kangaroo was fifteen to twenty metres ahead of his vehicle when he first saw it and was moving towards the road. He gave this evidence (T 70): "A. I remember seeing it jump onto the - like, from maybe the bush because that was where I saw it, was pretty - like a lot of trees and stuff, like it was pretty populated with, you know, like a lot of bushland and I remember seeing it come from the right onto the road and I immediately hit the brakes and then after that I remember just swerving, just going straight for the guide post but in relation to the kangaroo that was all I remember." 13 His evidence then proceeded at T 70-71: "Q. When you say 'swerving' did you steer your motor vehicle with the steering wheel by pulling it to the left? A. I can't remember.
Q. Well, when you said you veered to the left were you telling his Honour that or were you describing your steering of the vehicle? A. The vehicle's direction was in guide post and heading towards the guide post.
Q. I'll start again. When you saw the kangaroo you said you applied the brakes? A. Yes.
Q. How did you apply them? Did you apply them by just touching them or did you slam them on? A. Slam.
Q. And what did you do, if anything, with the steering wheel? A. I can't remember.
Q. Well, you said you swerved to the left. How did the vehicle come to swerve to the left? Did you steer it to the left using the wheel? A. I can't remember." 14 The plaintiff acknowledged in further cross examination that when he made a statement to his solicitors on 2 May 1998, which he signed on 8 June 1998, he described a kangaroo that jumped in front of his vehicle "on the left hand side". However, he said that he had "dreams and flashbacks" and can distinctly remember that it came from the right. He said that he first remembered this within months of making the statement to his solicitors. He said he first remembered the appearance of the kangaroo when he was in hospital. 15 The evidence that was introduced in the plaintiff's case satisfies me the accident happened in an area where kangaroos were frequently seen. Mr Cameron and his partner, Ms Mitchell, lived in a property immediately beside Summerland Way, with a frontage onto Gurranang Road, and the plaintiff's vehicle came to rest at a point adjacent to a boundary of their property. Mr Cameron said there were always kangaroos on his property and he had seen them crossing the road. He said they crossed to his neighbour every day. He described the period from 3.00 pm onwards as approaching a feeding time, which he associated with their movement. Ms Mitchell said she saw kangaroos on the property every day, morning and afternoon, and she said that they went to the side of the road to eat and to graze and crossed the road then for more grass and water. Mr Watt, the plaintiff's grandfather, who had occasion to travel along the Summerland Way frequently, said that he saw kangaroos and wallabies on the road frequently, particularly early in the morning and late in the afternoon (T 186-187). Mr Firman, a works overseer with the defendant whose duties took him to Summerland Way in connection with the roadwork that the defendant was doing at the time of the plaintiff's accident, said that he was aware that there were kangaroos in the area near Gurranang Road and "all along the road" (T 540). He agreed that they gathered in the morning and in the afternoon and that they sometimes jumped across the road. Indeed, Mr Firman said that they covered the whole Shire. 16 It is appropriate at this point to record my assessment of the plaintiff as a witness. Plainly he did not profess to have a complete recall of the accident. There were many, many occasions in cross examination where the plaintiff's response to questioning was that he did not or could not remember. He obviously gave an incomplete description of what occurred from the point where he first changed direction because there were markings on the road and the shoulder surface about which other witnesses gave evidence, in particular Constable Carroll and Ms Mitchell, which evidence the path taken by the vehicle onto and along the western edge of the bitumen. 17 Notwithstanding the shortcomings in his evidence, I did not conclude that the plaintiff was setting out to deceive the Court in any way. The plaintiff's lack of recall of details of the accident, and in particular the state of the bitumen at the point where he claims to have seen the kangaroo, did not advance his case. However, there were many shortcomings in his recollection and it seems to me, although there is no medical evidence before me, that these shortcomings are explicable by reason of probable head injury suffered in the accident. Ms Mitchell, who came on the scene whilst the plaintiff was still in the car, described him as being in and out of consciousness (T 135), and Mr Ingram observed the plaintiff to be bleeding to the head and he applied a damp cloth to the plaintiff's forehead whilst waiting for the ambulance to arrive. The plaintiff's grandfather saw the plaintiff that night at Grafton Base Hospital, at which time Mr Watt said his grandson was unable to carry on a normal conversation (T 181). 18 My conclusion concerning the plaintiff is that he gave his evidence truthfully and that his asserted lack of recollection was genuine. 19 As the plaintiff approached the point where he says he took evasive action, he was approaching a gradual right hand bend and the road had a moderate downhill grade to the south. These features alone called for no sharp change in direction by the plaintiff. The evidence satisfies me that the appearance of kangaroos on the Summerland Way, particularly at the time that the plaintiff's accident happened, was an event that might reasonably be expected to occur, and whilst the plaintiff's recollection has altered as to whether the kangaroo came from the left or the right, I do find myself satisfied on the balance of probabilities by his evidence that a kangaroo did appear. I also accept that this prompted the plaintiff to act to avoid a collision, although I am unable to determine precisely where the kangaroo was in relation to the plaintiff's car when the plaintiff first saw it.
The expert evidence 20 Two engineers were called in this case: Mr Hespe was called by the plaintiff and Mr Keramidas was called by the defendant. The reports that were written by the experts, forming Exhibit K and Exhibit 10, were written on entirely different factual assumptions. 21 Mr Hespe proceeded upon the assumptions that the road pavement was in very poor condition and was covered with a loose layer of soil and gravel (see report of Mr Hespe dated 23 January 2003, part of Exhibit K). Mr Keramidas based his report on a number of expressed assumptions, amongst which were that no work was carried out on the pavement or shoulder during the batter widening process and that all loose material which found its way onto the pavement or the shoulder was removed immediately in conjunction with the loose material from the batters (see report of Mr Keramidas dated 2 September 2003 and in particular assumptions 11, 18 and 19, part of Exhibit 10). It is not surprising therefore that the experts, in their written reports, expressed different conclusions as to why the accident occurred. 22 Mr Hespe was of the opinion "that loose gravel left on a road surface creates a situation of extreme danger…even at speeds as low as 60 kph only the most experienced driver would be able to recover from a skid on loose gravel. Furthermore, the presence of loose gravel on the road reduces the coefficient friction to such an extent that any disturbance of the uniform motion of the vehicle is likely to cause the friction demand of the tyre/road interface to exceed that of the available limiting friction, so that sliding is induced and a skid starts." 23 Assuming the sudden appearance of the kangaroo, Mr Hespe attributed the accident to a combination of that appearance, the presence of loose gravel on the road surface and the failure to provide appropriate warning signs. 24 On the other hand, Mr Keramidas wrote his report on the basis that: "At the time of the accident and the following day an inspection of the roadway revealed the site to be in good condition and free of dirt, gravel and/or other residue." 25 Based upon the tyre marks observed by the police, it was the opinion of Mr Keramidas when he wrote his report that the plaintiff must have been travelling at a speed approaching 90 kph or even above that when he applied "a heavy right steer action to his vehicle". Mr Keramidas was critical of the methodology adopted by Mr Hespe and was of the opinion that the accident could have been avoided had the plaintiff been travelling at 60 kph when approaching the accident scene. 26 The broad overview of the reports of the experts only highlights the necessity to determine the actual condition of the roadway at the point where I accept the plaintiff applied his brakes and changed direction to avoid the kangaroo. 27 Consistently with the opinion expressed in his report, Mr Hespe said in evidence that loose gravel left on a road surface created a situation of extreme danger, and his evidence was that such presence greatly reduced the coefficient of friction. Indeed, his analysis of the effect of the loose gravel led him to conclude that the tyre marks on the road and the distance travelled from the time that they first appeared was consistent with the vehicle travelling at only 60 kph when the brakes were first applied. This was an opinion not shared by Mr Keramidas. 28 Mr Hespe reasoned that the coefficient of sliding friction for a vehicle travelling at 60 kph in the conditions he assumed prevailed at the time of the accident was only 0.1144. Travelling at 80 kph, the coefficient of sliding friction would have been 0.089. 29 Mr Hespe gave evidence of his methodology in arriving at those coefficients on a number of occasions in his evidence. I refer in particular to evidence given at T 344. His approach drew upon research done in England by Grime (see Exhibit R and Exhibit 13). Mr Hespe said very little work had been done in this country concerning the coefficient of friction on gravel roads and the only reference in the RTA guide to gravel roads was derived from the DMR standards of 1941. Mr Hespe outlined the task he set himself and the method he used to arrive at the coefficient of friction of 0.1144 as follows (T 344): "…there's been no work done anywhere on the subject of loose gravel on a sealed pavement. And there's been very little work done in this country on gravel roads as such. The only reference in the RTA guide to gravel roads is from the old DMR Standards of 1941, I believe, and I think those figures were derived from work done by Mr Sandy Briton who was involved in setting up all the DMR Standards at that time.
So I had to move from one set of figures through another set of figures to arrive at an estimate of the sort of coefficient of friction that could be expected in the present circumstances. I've done that by firstly arriving at a ratio of limiting to sliding friction from these figures in Grime and I had to do that because the RTA guide only gives what's called a friction demand which is for limiting friction, and which contains a factor of safety.
So I arrived at the ratio from Grime. I then applied the limiting friction figure from Grime to the friction demand in the RTA guide, which then gave me the factor of safety. So that was step 2. Then I applied that factor of safety to the figure from the RTA guide for gravel roads which as I say, dates from the 40s. Having done that, I could then arrive at the limiting friction for gravel roads and going back to the ratio between limiting and sliding friction, I then arrived at a figure for sliding friction for the present situation. This was the only course open to me because as I say, there was no experimental figures available." 30 Mr Keramidas did not agree with the above approach. He considered that the relationship between limiting and sliding friction was of no utility in determining the coefficient of friction of a particular road (T 629) and that to uplift a design value and translate it to "a practical real life value" is not possible (T 629). He did not consider it to be a valid exercise to take the ratio between limiting and sliding friction from Grime and then attempt to derive "a safety factor" from that to proceed to determine the coefficient of friction at the point where the plaintiff lost control (T 630). The limiting friction values in Grime dealt with saturated road surfaces, not just a wet road surface, and the ratio between limiting and sliding frictions taken from Grime could not be used to determine a theoretical sliding friction in this case because
(a) the saturated road surface factor was not appropriate;
(b) nor was the application of a design value. 31 Mr Keramidas was asked these questions and gave these answers (T 632-633): "Q. Is it possible to take the design friction for gravel roads and from that figure to derive in any way the limiting friction that may be available once those designs are implemented and the road is in situ? A. Knowing how the design values have been arrived at, the short answer is no. You cannot do that because the design values do not remain based on original empirical field data. They have been adjusted beyond a safety factoring process.
Q. Can the ratio between the limiting and sliding frictions derived from Grimes' study be used to determine a theoretical sliding friction on what may have been present in the circumstances of this case? A. Again, the short answer is no.
Q. Why is that? A. Again, for two reasons - one, limiting the sliding ratio that Doctor Grimes provides relates to a saturated road surface, which is not at all comparable to the circumstances of this case and, secondly, the design value does not of its own deal with, come out from the very direct field observations." 32 I find myself persuaded by the criticisms expressed by Mr Keramidas, and I do not find the coefficient of friction would have been as low as calculated by Mr Hespe in the conditions he assumed. 33 Extracts from the National Association of Australian State Road Authority's publication entitled "Policy for Geometric Design of Rural Roads" were admitted into evidence as Exhibit 12. Mr Hespe made reference to material in this publication in the evidence he gave and to which I have recently referred. Contained in Exhibit 12 (p 26) is a table that includes the coefficient of straight skid friction for gravel or unsurfaced pavements. The figures were derived from tests conducted in the 1940s with older vehicles and tyre designs, and the coefficient of friction at 30 mph was stated to be .37, and at 60 mph, .30. 34 Mr Keramidas considered if the police observations were correct and there were tyre marks on the bitumen crossing from east to west with no loose material on that bitumen surface, the coefficient of friction where the marks started would have .7-.8 (T 633). If, on the other hand, there was loose gravel right across the bitumen to a depth of 20 mm, and tyre marks were seen on the bitumen, this indicated that the gravel had been pushed away when the vehicle braked. If there was loose material on top of the bitumen in the nature of sandy fines with some larger pieces of stone, again to a depth of 20 mm, the coefficient could have been as low as .4 (T 634). 35 However, Mr Keramidas did agree in cross examination (T 741) that the coefficient of friction could have been "well below .4" with material on the road surface. Much depended obviously upon the nature and extent of the material. Mr Keramidas gave these responses to these questions (T 741): "Q. Mr Keramidas, can I ask you this, I've read you the various descriptions of material on the road. It would be safe to say would it not, that on any version of the material on the road, the coefficient of friction would be well below .4? A. With material on the road surface, yes. …………….. Q. I'm sorry, let me give you some precise assumptions. Assume the vehicle was turned slightly but quickly to the left and the brakes applied? A. I'm afraid even that might not necessarily do it. If I could explain perhaps. You could still get a loss of control on a perfectly good new road surface with a combination of steering to the left and braking, or just steering to the left or just braking.
Q. Yes? A. All I could basically say, and regardless of the hypothesis that's put to me, is that if there is material on the road surface then a loss of traction event will occur earlier than if there wasn't.
Q. Would you agree that it is more likely to occur than if there wasn't any material on the road? A. For a given speed and for a given manoeuvre, yes." 36 I accept, consistently with the concession made by Mr Keramidas, as recorded above, that the coefficient of friction could have been well below .4 if there was loose material on the road surface. I am also satisfied, consistently with the evidence of both experts, that if there was loose material on top of the bitumen, loss of traction could occur more readily than if there was no such material. 37 The outcome of this case is not to be determined by a finding as to the precise coefficient of sliding friction. So much must depend upon the finding of fact as to the actual condition of the road surface. That this is so is a matter on which I do not understand the experts to disagree. I am satisfied, having considered the evidence of Mr Hespe and of Mr Keramidas, that the presence of loose gravel and fines spread across the bitumen surface would have created a hazard for a motorist attempting to brake and change direction upon such a surface. I am also satisfied that the extent of any hazard so created would depend upon the composition and extent of the deposit.
Evidence concerning the condition of the bitumen 38 A number of witnesses gave evidence that bears upon this critical issue in the case. There were a number of witnesses who attended the scene of the accident on 24 March 1998, and the plaintiff's grandfather attended on the day after it occurred. It will also be necessary in addressing this question to examine the evidence as to what roadwork was being done by the defendant at the time of the accident and precisely where. 39 I have earlier referred to evidence that the plaintiff gave concerning his observations of the road. I found his evidence about this unsatisfactory. There was inconsistency in the answers emphasised in para 10 above, and his evidence lacked useful detail. In cross examination the plaintiff also said that he was aware that work was being carried out on the shoulders of the road at a point which he said was within a kilometre of where the accident happened (T 39). He said that this work stretched over about a kilometre and he said that the bitumen had "maybe a little bit of gravel towards the shoulders on it" (T 40). Again (at T 64), the plaintiff said he noticed "maybe loose gravel towards the guidepost on the edge of the road before the shoulders" but he could not remember the condition of the centre of the road (T 64-65). He described the loose gravel on the edge as being the same colour as the bitumen. He said he had driven approximately a couple of hundred metres along this section of roadway with the loose gravel along the shoulders before he saw the kangaroo (T 65). He also said he had no recall as to whether or not there was any scattering of stones across the bitumen (T 67, 77). 40 Mr Cameron was at home in his property earlier mentioned and heard the crash. He went to the roadside and saw the plaintiff in his car which was "all smashed up" but standing on its wheels (T 110). He said he sent his partner, Ms Mitchell, to the house to dial 000 and the police arrived 20-30 minutes later. Mr Cameron made observations as to the road whilst waiting for the police. According to him, the road was being redone and it was gravel from the point where the car came to rest for 200 metres to the north (T 113). In cross examination Mr Cameron said that work was going on further up from his property to the north and that in front of his place shoulder widening had taken place and then the old bitumen had been torn up and replaced with new bitumen (T 123-124). He said he was sure that this had happened prior to the accident (T 130). 41 Other evidence to which I shall presently refer satisfies me that as at the date of the accident the bitumen surface had not been torn up and replaced by 24 March 1998, and I am satisfied that Mr Cameron's description as to the stage the roadworks had reached is incorrect. 42 Ms Mitchell gave evidence concerning her observations as to the condition of the roadway. According to her, roadworks were in progress and she described the condition of the road surface (at T 136): "The road base was gravel stuff down". Ms Mitchell said the work was being done in sections, and in cross examination (at T 146) described the progress of work in the following passage: "McCULLOCH: Q. Yes, please, describe if you would be so kind what you say you saw at the time of the accident? A. Well, it was like the - like dirt and they put road base on the top of that and then like loose gravel, gravelly stuff which was mixed in the road base, I suppose.
Q. Now, first, the road base was it a browny colour? A. Yes.
Q. And the gravel you referred to what colour was it? A. It was black and whitey sort of coloured rocks, rocky, sort of not real big rocks but-
Q. Have you ever noticed the top of bitumen roads and the sorts of stones that are embedded in the bitumen? A. Yes.
Q. Are they the sorts of stones you are describing as the gravel or are they different stones? A. Mixture.
……… McCULLOCH: Q.... When you referred to seeing gravelly material and road base on the day of the accident were you describing the area of the shoulder of the road; that is, the portion of the road which is off the bitumen? A. Mmm.
Q. Is that the area you were describing? A. No, the whole road, the whole road.
Q. That's what I wanted to get clear. A. Yep, from either side, the whole road.
Q. Now in the photograph that I have shown you, that would mean, wouldn't it, that the sort of material that you were describing as the road base material with the gravel in it was spread not only in the area of the brown material shown in the photograph which you have before you but across the black old bitumen surface? A. That's correct, the entire road." 43 Unlike Mr Cameron, Ms Mitchell was uncertain whether the old bitumen surface had been ripped up. Ms Mitchell again asserted that on the day of the accident the road base was right across the road (T 152) and the witness said it was not possible she was wrong about that (T 154). 44 Ms Mitchell gave evidence that she walked 150 metres to the north away from the car when the police arrived on the scene. Ms Mitchell saw skid marks, which she said extended for "100 - maybe 130 metres" (T 157). Ms Mitchell said these marks started on the correct side of the road for a southbound vehicle and crossed on to what would have been the western shoulder and then went back ultimately to the other side of the road and to the embankment that adjoined the Mitchell and Cameron property. At T 156 the witness was asked these questions and gave these answers: "Q. … The skid marks, as you observed them, ran first across to the right-hand side of the road, is that correct? A. That's correct.
Q. Across the area that would have been covered with bitumen if the bitumen had still been there; that is, the lane for north bound traffic? A. Yes…. Q. Off onto the area that would have been the shoulder? A. That's correct.
Q. On the right-hand side or western side? A. That's correct.
Q. And then back left towards ultimately the embankment that adjoins your property? A. Yes.
Q. And the skid marks in their total length, were they something in the order of 100 metres? A. Possibly, maybe a little bit longer.
Q. How much longer? A. Maybe another 20, 30 metres." 45 According then to the recollection of this witness, a covering of "gravely stuff" extended to the north at least as far to the point where the skid marks began. 46 Mr Wesslink was an ambulance officer who drove the ambulance out from Grafton to the scene and parked it as close as he could to the plaintiff's vehicle. He said that he positioned the ambulance facing north in a position where it would ordinarily be half on and half off the gravel shoulder. His observation of the road surface was that there was gravel where the ambulance was parked and that the gravel extended right across to the western side of the road. In cross examination he said that his line of sight when at the back of the ambulance was to the western side of the road and what he saw was gravel (T 172). Shown the photograph which became Exhibit 4, depicting the gravel shoulder beside the roadway, he said it was material of that type that extended continuously across the road, and he gave these answers (T 174): "Q. When you said in your evidence that 'the road was gravel where I was parked and it extended across the road', was what you were trying to convey that there was material of the type shown in that photograph on the shoulders which went continuously from one side of the road to the other? A. Yes.
Q. And so that we are plain, according to your observation about the area where you parked and the observation you made about it, there was no black strip running through the middle? A. That's right." 47 He said there was no black strip through the centre of the road and the bitumen colour seemed to have ended 100 metres south of the bend at the Gurranang turnoff. He said it appeared to him that the old bitumen surface had been ripped up. He was asked these questions (T 176-177): "Q. Would you say that the material which you observed in the area where you parked and across the road is what might be described as road base material? A. With no knowledge of engineering or gravel I would say it could be ready to be taking bitumen but I am not an engineer.
Q. Well what I want to suggest to you is that insofar as you have recalled that the surface of the road, as far as you could see it from the area where you stopped the ambulance and across to the west, was all the same colour and it was all brown, I want to suggest that your recollection about that is in error and indeed what existed at the time was a gravel shoulder on either side but with a bitumen surface in the middle? A. That may be so but as I remember it it was gravel right across. That's my recollection of the scene.
Q. Do you admit a possibility that you could be wrong about that? A. I could be wrong about anything.
Q. Do you admit the possibility that you could be wrong about your recollection in that respect? A. I feel confident that I am right but it's possible that I am wrong but I feel confident that I am right." 48 To return to Grafton Mr Wesslink had to do a three-point turn and he noticed that the gravel surface extended right across the road for at least 30-40 metres further to the north. He did not know what the surface was like further north than that (T 178). 49 Mr Ingram was a passing motorist who was travelling along the Summerland Way towards Lismore when he came upon the plaintiff's damaged car. He saw the plaintiff's arm extending from it, reversed his car to a position opposite the plaintiff's car, stopped and crossed the road. He said he noticed the surface of the road and described it as being bitumen with patches of dirt, but he said near the accident it was deeper gravel. The gravel was 20 mm deep and it extended right across the road. The gravel was brown in colour (T 215-216). He said that looking across the road he recalled seeing mostly gravel but he was unable to recall whether it appeared to be compacted gravel or not. As he recalled, the surface was the same to the north. After Mr Ingram left the accident site he proceeded on towards Casino. He was asked in cross examination about the bitumen road for a distance of 1-2 kilometres south of the accident site and 1-2 kilometres north of the accident site, and said it was not his impression that any work was being done to the bitumen surface itself. However, in the area where he came upon the plaintiff's vehicle and for a distance of at least 100 metres either side of that vehicle, he said there were patches of dirt and gravel in places on the bitumen road. The patches were "evenly distributed" across the bitumen surface (T 226). Mr Ingram parked his vehicle when he came to the aid of the plaintiff more or less opposite the plaintiff's vehicle (T 223). When he crossed from his car to the plaintiff's car, his recollection is that the road surface was "mainly dirt at that point" to a depth of 20 mm. At no time did the witness walk away from the vehicle in a northerly direction to examine what was on the road surface. The brown material did not appear to be compacted but was lying loose on top (T 230). Mr Ingram, when asked for as complete a description as he could give (at T 230), responded: "A. As I said previously, between my car and the plaintiff victim's car the surface was covered. I didn't walk across any bitumen. The material was brown. It crunched under foot. It was small pieces of rock, if you like, interspersed with dirt and I don't know how to be more specific." 50 Mr Ingram saw tyre marks on the road, whilst at the plaintiff's car. The southernmost point of those marks was fifty metres from where the plaintiff's vehicle was located. The marks extended for ten metres, beginning on the western side of "what would be the centre of the road", and the marks travelled very generally towards where the vehicle came to rest (T 225). Where those marks were, Mr Ingram thought there was more gravel than bitumen. 51 Unlike Mr Cameron, Ms Mitchell and Mr Wesslink, Mr Ingram's recollection is that he saw patches of bitumen through the gravel and dirt. It appeared to him that work was being done to the shoulders but not to the bitumen (T 219-221). 52 At no time did Mr Ingram walk north to make more precise observations of what was on the road surface (T 227). 53 The plaintiff's grandfather attended the accident scene on 25 March 1998 on his way to Brisbane to visit his grandson. Mr Watt left Grafton shortly after 7.00 am so that he arrived early in the day at the accident scene, which he identified from debris in the gutter including parts of the car grill. He said he could see marks on the culvert but he did not notice marks on the roadway. Mr Watt said there was a light level of gravel on the road (T 182). He fixed the accident site as being at a point 200 metres north of Gurranang Road. I accept this on the whole of the evidence as being reasonably accurate. When shown Exhibit E, a photograph looking south to Gurranang Railway Station Road, he said that there was more gravel on the road on the morning after the accident than is shown in that photograph, a photograph developed on 20 March 1998. Having seen Exhibit E, Mr Watt said: "There was a layer of white gravel right across the road, with just signs of bitumen showing through it." Mr Watt said (T 187) that the covering of gravel extended across the road in the way he described for approximately 200 yards in each direction. In cross examination (T 188), Mr Watt was asked these questions and gave these answers: "Q. And when you say you could see the bitumen showing through what sort of areas of bitumen could you see? A. Only small areas like that have been disturbed by traffic, only small areas like been disturbed by cars and so forth.
Q. And how thick did the white gravel which was on the bitumen seem to you to be in depth? A. Only approximately an inch, inch or so I'd say; very shallow." 54 Mr Watt said that it appeared to him as though the gravel had been deliberately laid (T 188). He noticed the change 200 metres south of Gurranang Road and it extended for 400 metres north of that point. At T 194 he was asked these questions and gave these answers: "Q. What was the nature of the change that you saw when you got to 200 metres south of Gurranang Road? A. Slight gravel on the road and a very light layer of gravel right through.
Q. What do you mean by slight gravel on the road? A. About an inch cover right through.
Q. Was there a relatively straight or clean line across the bitumen surface which indicated the change from a bitumen surface to the light gravel that you have spoken about? A. No.
Q. So it didn't give the impression to you as you reached this point that there had been, as it were, a deliberate decision made to start laying gravel from this point and going north? A. No, I'd say - it just looked like they laid the layer and rolled it that morning. That's what it looked like to me.
Q. Was that the appearance for the whole of the stretch which you described as being 400 metres north from that point? A. Yes.
Q. So it looked to you as though, rather than the material getting there accidentally as it were, it had been deliberately placed there? A. Yes. 55 Mr Watt visited the site again with his son on 9 April 1998. On this occasion he took video film which was introduced into evidence. He said the roadway in the video was different from its appearance on 25 March, and in particular by that date he said it had been built up considerably. 56 Constable Carroll, who was stationed at the time at Wooli, attended the scene on the day of the accident. His description of the road differed markedly from the various descriptions hitherto recorded. After the plaintiff was taken away by ambulance and before the tow truck arrived, Constable Carroll drove a distance to the north. However, before doing that, he walked to the north and made observation of tyre marks, and in response to the following question gave the following answer (T 545): "Q. And what observation did you make about the skidmarks, that is their relationship to the generally travelled surface and the shoulders either side? A. I noted that the marks, the tyre marks were, the tyre marks veered from the eastern side to the western side of the road, off the road on to the dirt surface back on to the bitumen, to the eastern side of the road, to where it appeared the vehicle had impacted with the embankment and then I stepped out from the impact site to the final resting site of the motor vehicle which was further south of the impact zone." 57 Then (at T 546): "Q. Can you describe what you saw, if anything, as to the marks apparently from the tyres as they proceeded from north to south with particular attention to what you saw on the road surface rather than the gravel shoulders? A. The road surface other than the tyre marks was - the road surface - there was no loose material on the surface at all, there was no loose material on the surface other than that rubber that I observed earlier from the tyres.
Q. And in relation to the rubber that you observed from tyres which you have described as being on the road surface, was that for the continuous length of the marks that you observed or at some stage did it stop and start again? A. No, continuous." 58 The measurements recorded in the police officer's notebook (part of Exhibit 9) are accompanied by a rough sketch which shows a curved line. According to the notebook record, the marks, having proceeded from the eastern to the western side of the bitumen, then went off into the gravel shoulder on the western side of the road and proceeded in a curved fashion for some 98 metres before returning to the bitumen and proceeding across the bitumen for nineteen metres, entering upon the eastern shoulder, where it appeared the vehicle had impacted with the embankment. The distance travelled from the time the vehicle left the gravel on the eastern side to the point of impact with the embankment was fourteen metres. The police officer stepped out the distance from the impact site to the final resting place further south and this was an additional twenty-two metres. Altogether then, according to Constable Carroll, the vehicle proceeded for thirty-six metres on the eastern shoulder. 59 Constable Carroll said that he then entered his police vehicle, which was a Rodeo caged vehicle, and drove it to the 60 kilometre advisory sign to the north of the accident, which sign he located approximately 1½ kilometres to the north of the accident scene. From there the police officer proceeded back to the accident scene, travelling at 60 kph. At the northern end of the tyre mark he had observed, he applied the brakes heavily. He said that the police vehicle stayed in a straight line and came to a stop within twenty metres. 60 In cross examination, Constable Carroll agreed that the initial marks made by the vehicle, that is those made at the northern end, showed a fishtailing configuration. The witness said that he attempted to stop his vehicle on the road "to ensure there was no other unseen contributing factors to the accident." He had in mind oil or a dried liquid (T 552). 61 I am mindful that the journey which Constable Carroll said that he took was undertaken in a very different kind of vehicle from that driven by the plaintiff, and that Constable Carroll was, no doubt, a very experienced driver, who, being stationed at Wooli, would have been accustomed to country roads. I am also alert to the fact that he was driving along intending throughout his journey to apply the brakes at a particular point. I am not influenced by this evidence to make any finding as to the plaintiff's speed immediately before he applied his brakes. However, subject to assessing its reliability, I do regard the police officer's evidence about his journey as being relevant to his observations of the area where the tyre marks began. 62 It is difficult, to say the least, to reconcile Constable Carroll's description of the road surface in the relevant area with the descriptions given by Mr Cameron, Ms Mitchell, Mr Watt, Mr Ingram and Mr Wesslink. None of the descriptions given by those witnesses was put to the police officer in cross examination. I do not make that observation critically but Constable Carroll's evidence, if accepted, is inconsistent with evidence that there was any loose gravel on the roadway that could have caused or contributed to the loss of control of the plaintiff's vehicle which occurred where the tyre marks began. According to his evidence, Constable Carroll saw no loose material on the bitumen other than rubber from the tyres. 63 I shall return to the assessment of the evidence of Constable Carroll and of Ms Mitchell and Messrs Cameron, Watt, Ingram and Wesslink presently. 64 There is other evidence to be considered in making any finding as to the condition of the road surface in the relevant area. A number of council employees gave evidence of their involvement in the roadworks being undertaken on the Summerland Way in 1998. 65 Mr Perriott was the supervising engineer employed by the defendant on the work. He said that in the first half of 1998 there were in fact two projects on the Summerland Way, one known as the thirty kilometre project and the other as the forty kilometre project, these distances being taken from a starting point in Grafton. 66 I am satisfied that the relevant project here is the thirty kilometre site project which began as a widening job but Mr Perriott said it became a full reconstruction assignment. He said that the starting point for the work was 700 metres south of Gurranang Road and the finishing point was 1.3 kilometres to the north of the intersection of Gurranang Road and the Summerland Way. 67 Mr Perriott said that after the widening work began the council was requested by the Roads and Traffic Authority to do a full reconstruction. That involved excavating material either side of the existing road, putting in replacement material there, and then removing the existing pavement. Then a base layer was to be placed over the whole surface, including the shoulders, and finally a seal was to be placed over the base gravel. 68 According to Mr Perriott, batter widening at the thirty kilometre site started early in February and finished early in March (T 414). At the start of March shoulder widening was still being carried out, and plant in the form of a grader and a loader were employed, and trucks were there to cart the material away. Mr Perriott said from the beginning of March until the end of March there was shoulder widening work carried out at the southern end of the site, and Mr Perriott described two very large cuttings, one of which began 450 metres south of the intersection of the Gurranang Road on the western side and extended north to a point forty metres south of that intersection. The second very large cutting was sixty metres north of that intersection and extended for some 100 metres further to the north. Cutting had to be done opposite that cutting on the eastern side of the road. 69 Mr Perriott was asked this question and gave this response (T 418): "Q. From a period say from 15 March onwards was any work done in this 2 kilometre stretch of road of which Gurranang Road was to the north of the Gurranang Road intersection? A. No, there was no work carried out." 70 I understand that response to mean that no work was done north of that intersection in respect of the 30 kilometre project after 15 March, prior to the plaintiff's accident. 71 Mr Perriott said that he visited the work site every one to three days, making observations of the road signs, inspecting the works and talking to the ganger. Mr Ward informed him on 24 March 1998 that there had been an accident and he went with Mr Ward to the accident site where he observed broken plastic, some tyre marks and a mark on the batter. He said he was at the accident site with Mr Ward for about ten minutes. He could not recall how far they walked from where their car was parked, but he was asked whether he made any observations concerning the appearance of the road, and responded that he thought "the bitumen surface of the pavement looked fairly normal as per a bitumen sealed road" (T 436). He said that after the date of that inspection shoulder widening work progressed in that area. Material was excavated and gravel was deposited on the bitumen pavement. The gravel was then graded from there into the trench beside the road and incorporated into the work. Mr Perriott said that he thought this took place about a month after 24 March 1998. After that was done, the gravel shoulders were brought up to the same level as the bitumen pavement, then a profiler was hired to take up the old bitumen. 72 Mr Perriott said that the work at the thirty kilometre site was done, in effect, in two halves. The half first attended to was the half at the southern end of the project which commenced south of the intersection with Gurranang Railway Station Road. 73 In cross examination, Mr Perriott was asked about his observations at the accident site on 24 March 1998. He was asked these questions and gave these answers (T 458-459): "Q. You said in your evidence about your visit on 24 March that the bitumen surface looked fairly normal. What do you mean by that? A. Well, from my memory, I don't remember it looking that much different to any other bit of pavement anywhere else.
Q. Is it not true that there was a light covering of gravel and dirt across it? A. I don't remember exactly.
Q. And, of course, I suppose within any work site it's always possible that you will get material across the road surface? A. Yes.
Q. And in this case there was, of course, the added factor that soil was being carried by large trucks from this work site to the 40 kilometre work site, wasn't it? A. Yes.
Q. And when did that begin, do you remember? A. I think that began on or about, somewhere about the 13th or 15th of March when we started excavating the shoulders.
Q. And that continued through the 24th of March? A. On and off, yes.
Q. In fact, it continued for very much longer than that, didn't it? A. I believe so." 74 Mr Perriott said that there were approximately six trucks per day carrying material to the forty kilometre site. 75 Unfortunately, Mr Perriott made no diary note of his inspection on 25 March 1998 and he took no photos, an omission he regretted when he learned that the accident had been a serious one. Mr Perriott said he thought it was a few weeks after the accident that he learned it had been a serious one. 76 I turn to the evidence of Mr Ward. 77 When Mr Ward first started as acting ganger the bitumen surface was still in place. It was subsequently removed, according to him, using a profiler. He said that occurred in May 1998 and this event is recorded in the diary which he kept (part of Exhibit 6). Profiling of the kilometre surface, and I take this to be the southern end first profiled, occurred on 29 May 1998. Mr Ward said that the profiling for the other half of the job was done some weeks later. 78 According to Mr Ward, from the day he started the sequence was to clean the banks down, to cut them back, to batter and grade to the edge of the bitumen. He said this was done on each side of the roadway using a grader. He said that the grader was used first to level up the floor of the shoulders and it was then used on the bank (T 567). 79 Mr Ward kept a diary which he completed each evening and he also kept a daily running sheet. He also signed a checklist. These documents are in evidence. 80 Mr Ward said that between 2 and 13 March all the work that was carried out on the job was done at the intersection of Summerland Way and Gurranang Road and to the north of that intersection for a distance, he estimated, of 300-400 metres. Some of the excess material was used opposite the Gurranang Road intersection. Some of the material was used to put in the toe to the batters (T 574). In addition there was a large area on the western side of the Summerland Way where excess fill was disposed of. Mr Ward located this deposit area as being just south of Khan Road (T 611). From time to time a grader went to that area and spread the fill. Khan Road intersects with Summerland Way to the west, and north of the Gurranang Road intersection. The precise location is shown on Exhibit J. 81 Mr Ward said that material was carted to the forty kilometre site as well (T 611). 82 Mr Ward had a recollection that work was done on the entrance to Khan Road where a pipe crossing was put in place (T 613). 83 Mr Ward said that between 16 March and 26 March no work was done on the Summerland Way north of the intersection with Gurranang Road (T 577). The work sheets for that period of ten days describe work done over the period as being done to the "southern end", which of course was south of the Gurranang Road intersection. Daily work sheet entries for the period 16-26 March 1998 are to be contrasted with the earlier daily work sheet entries from 2-13 March 1998 which describe the location of the work done in the earlier period as being "Gurranang Road". 84 Although Mr Perriott gave evidence of attending the accident scene with Mr Ward on 25 March 1998, I do not have the benefit of any evidence from Mr Ward as to any such visit. Eventually diary entries made by Mr Ward became part of Exhibit 6 and the diary entry for 24 March concludes with this entry: "Car accident 200 metres north Gurranang 3.50 pm - broken back." I was informed by counsel, and of course I accept, that at the time when Mr Ward gave his evidence, counsel had an incomplete photocopy of Mr Ward's diary entry for 24 March, and that incomplete copy did not include reference to the car accident. Opportunity was offered to recall Mr Ward but the evidence concluded without this happening. 85 In the circumstances, Mr Toomey submitted that I should draw the inference that Mr Ward, if recalled, would not have given evidence which advanced the defendant's case concerning the condition of the roadway, relying upon Jones v Dunkel (1959) 101 CLR 298. 86 The entry is the last entry for 24 March and there is no evidence as to when the entry was put in the diary, but it seems to me that it is a reasonable inference that the entry was made before Mr Ward alerted Mr Perriott to the fact that an accident had occurred and before the visit Mr Perriott made to the site on 25 March 1998. 87 It has to be borne in mind that the evidence does not suggest that either Mr Perriott or Mr Ward knew exactly what had happened to the plaintiff. There is nothing to indicate that their attention would have been directed to a study of the condition of the road surface 130 metres north of the point where the mark on the batter and the broken plastic were found. However, whilst I accept Mr Perriott to have been an honest witness, his evidence as to his observations at the accident site on 25 March 1998 (reviewed in para 73 above) was uncertain and unconvincing, and any evidence Mr Ward could have given as to the state of the road on that date would certainly have been relevant. Mr McCulloch submitted no Jones v Dunkel inference was called for because Mr Ward's evidence would only have been cumulative, bearing in mind Mr Perriott's account of his observations. I was referred to the discussion on the exception to the rule in Jones v Dunkel concerning cumulative witnesses in Campbell J's judgment in Manly Council v Byrne [2004] NSWCA 123 at paras 60-67. However, because of what I consider to be the shortcomings in the evidence of Mr Perriott as to his observations on 25 March 1998, I would have expected Mr Ward to have been recalled if he was able to give evidence that advanced the defendant's case. In these circumstances I consider it appropriate to draw the inference invited by Mr Toomey concerning the failure to recall Mr Ward. There is no satisfactory evidence from any Council officer that addresses the condition of the roadway on 24 or 25 March 1998. 88 The third council employee who gave evidence was Mr Firman who, in 1998 was employed by the defendant as works overseer. He was directly answerable to Mr Perriott. Mr Firman had direct involvement in putting up appropriate signage, and I will consider his evidence concerning that matter later. Mr Firman was not involved in the day to day construction work as his role on this project, apart from that referable to signage, was to supply labour, equipment and materials. Mr Firman said that he visited the site once or twice per week but he gave no evidence as to the day by day progress of the work. He was asked no questions about the condition of the roadway as at the time of the plaintiff's accident. 89 A number of photographs have been introduced into evidence but I do not find any of them of assistance to me in determining what the condition of the roadway was at the critical time and place. Nor do I find the video taken by Mr Watt to be of assistance in this regard. I accept the evidence Mr Perriott gave in cross examination that the video was taken before the shoulder widening (T 442). The video was taken on 10 April 1998, which is some time after the work on the batter was done. Cross examined about it, Mr Perriott could not explain why there was material on the edges of the bitumen about a month after the batter work had been completed (T 442). However, the video did not show extensive deposits of sand and gravel on the bitumen matching the descriptions given by those witnesses other than Constable Carroll, whose evidence I have earlier reviewed. If there were such deposits as at the date of the accident, the surface must have been cleaned before the video was taken. There is no council record evidencing any clean up. 90 The photos in Exhibit M show a quantity of sandy gravel on the road surface, although again not to the extent of the cover described by the witnesses upon whom the plaintiff relies. Mr Perriott considered that the deposit shown in one of the photographs in Exhibit M, namely that marked 10, needed cleaning up but the photos in Exhibit M were taken some time after the video, and hence some time after the plaintiff's accident. Exhibit M was taken after the shoulder widening, and after the work on the shoulders of the bitumen had progressed beyond the stage it had reached at the time of the plaintiff's accident. 91 The evidence that Mr Ward gave about the progress of the work up to the time of the plaintiff's accident is broadly consistent with the evidence that Mr Perriott gave and is supported by the daily records which Mr Ward kept. I accept that the progress of the work was as Mr Ward described it. I am satisfied therefore that as at the date of the accident the original bitumen surface remained in place. I accept that it was not disturbed until the profiler was used on 29 May. 92 I accept that the sequence of construction was as described by Mr Perriott in the evidence that I reviewed earlier. Attention having been given to the shoulders, attention was then directed to the existing pavement. However, the pavement was removed before any base layer was placed over the entire project, including the shoulders. It was only after this was done that a seal was put over the top of the base gravel. It follows in my opinion, having regard to the fact that the bitumen was still in place on 24 March 1998, that to have deliberately spread sand and/or gravel across the bitumen surface would have achieved no purpose, and I do not find there was any such placement. There is no indication in Mr Ward's daily records that this occurred and it was not suggested either to Mr Perriott or to Mr Ward that there was any deliberate placement of materials on the bitumen at a time relevant to the plaintiff's accident. 93 May there have been some accidental placement? This question is to be answered in the affirmative. Apart from shoulder work undertaken, there were trucks carting material to the forty kilometre site and there was material being dumped and spread on the western side of the road just south of Khan Road. Casual spillage, if and when it occurred, could be spread and compacted by passing traffic. 94 The evidence is silent as to if and when any attention was given by the council to cleaning spillages on the road surface. I referred to the evidence of Mr Perriott contemplating the need for cleaning up what appeared on Exhibit M, photo 10, but there is no evidence as to any procedure put in place or followed by the council for cleaning road surfaces. Mr Hespe stated in his report of 23 January 2003 (Exhibit K, p 12): "…most importantly, loose gravel should have been removed from the road pavement at the end of each day's work. During working hours, activity on the site, flagmen and other considerations make drivers more watchful and likely to travel more slowly. In which case the presence of loose gravel is unlikely to be hazardous. After hours, however, loose gravel is a very real danger and should be removed (I am here dealing only with the situation of loose gravel on an existing sealed pavement.) The usual method of removing loose gravel in this situation is to broom it off with a tractor-mounted or towed rotary broom. (Sometimes, where available, self propelled brooms are used.) Wetting down is totally inadequate because in most conditions the wet material is as bad or worse than when dry, and in any case near Grafton in March it would dry off very quickly." 95 That evidence is unchallenged. 96 The defendant introduced no evidence about any system of cleaning, or concerning the practicability of undertaking this on a regular basis. I referred earlier to the assumption Mr Keramidas was asked to make as to immediate removal of loose material (para 21 above) but the factual basis for such assumption was not proved. There is no record in the daily sheets kept by Mr Ward of any work in cleaning the road surface during March 1998 or up to 10 April 1998 when the video was taken. I do note that there is a reference to the new seal being swept on 21 June 1998 (p 19, Exhibit 6), but, of course, it may be that the defendant kept no record detailing road cleaning as a routine matter, if and when it was done. The evidence does not disclose whether it did or not. 97 The video, Exhibit F, does not give a far reaching view to the north of the accident scene, but it does show the bitumen in the immediate vicinity. When Mr Toomey drew the attention of Mr Perriott to patches of foreign material on the bitumen, as shown by that video to be present one month after the batter work had been completed, Mr Perriott could offer no explanation for its presence (T 442). However, the deposits of foreign material on the bitumen as shown in the video were not the dominant feature of the appearance of the bitumen surface, which surface appeared to me to be reasonably clean. Certainly the condition of the bitumen surface at the time the video was taken differed from the condition described by Mr Cameron, Ms Mitchell, Mr Wesslink, Mr Ingram and Mr Watt, and it follows if their evidence is to be accepted, the surface must have been cleaned between 24 March 1998 and 10 April 1998. If it was cleaned in that period, no record of this work is in evidence. 98 The evidence of Mr Hespe as to the need to clean hazardous material from the road pavement at the end of each day's work is unchallenged, and I am satisfied that there ought to have been in place a system of cleaning to address the foreseeable risk of harm associated with any build up of loose gravel on the bitumen surface. I am also satisfied if there was a build up of offending material left on the bitumen, warning of its presence should have been given by appropriate signage.
The sufficiency of signage 99 The plaintiff alleges negligence by the defendant in failing to display appropriate signs sufficient to alert the plaintiff to the condition of the roadway. 100 It was Mr Firman's responsibility to draw up the traffic control plan pursuant to which signs concerning the roadworks were to be erected. Mr Firman said he referred to the RTA Traffic Control Guide (Exhibit 7) to draw up his plan. The plan he prepared went missing, but he reproduced the plan in his evidence (Exhibit 8). The plan he drew up made provision for the placement of signs facing approaching motorists both on the northern and southern ends of the roadworks. Provision was made for the same signs at the same intervals covering motorists travelling in both directions. According to his plan, Mr Firman made provision for the following sequence of signs:
(e) 60 kilometres. 101 The signs were to be spaced at 100 metres intervals according to the plan, although Mr Firman acknowledged that distance might be incorrect. The distance he provided in the plan was the distance specified in the traffic control manual. 102 It was necessary for the council to make application to the RTA for the placement of 60 kph signs on Summerland Way, and the necessary application was made (see Exhibit 6, p 1). Council had to wait upon the direction from the Authority before the speed signs could be put up, and the necessary direction was given by the Authority on 27 February 1998 and received by the Council on 4 March 1998 (Exhibit 6, p 2). This resulted in the speed signs going up after the three signs first mentioned. 103 Having prepared the traffic control plan, Mr Firman said he used a measuring wheel to mark out the points where the various signs were to be placed, taking his measurements from a start line. He said he marked on the road and initialled at each point the locations for the various placements. For instance, where the "roadwork ahead" sign was to be placed he marked on the road "RWA" (T 511). He gave the traffic plan to a council worker, Mr Blanch, instructing him to erect the signs. A diary extract from Mr Blanch referable to the work done forms part of Exhibit 6. 104 Mr Firman said that after the signs were put up he drove through the relevant area, checking to see if the signs corresponded to the markings on the roadway. The signs then up were "roadwork ahead", "1 km roadwork ahead" and "reduce speed" signs. 105 Later, after they were erected, he also saw the speed signs referred to. He said they were erected several days after the original signs. 106 I accept the evidence given by Mr Firman as summarised above. 107 Mr Ward gave evidence that he checked the signs on the job every morning and every evening. This was necessary to complete the daily sign checklist (see Exhibit 6, p 22 and following). Relevantly for the purposes of this matter, the daily sign checklist records that there were in place on 2 March signs advising "roadwork 1 km ahead"; "roadwork ahead"; and "reduce speed". The first date against which Mr Ward ticked the "60 kilometre ahead" sign was 30 March 1998. Likewise for the "60 kilometre" sign. However, Mr Ward said this was an oversight on his part and those signs were in place from 18 March 1998, at which time he completed the record in Exhibit 6, p 3. That document bears date 18 March 1998. Mr Ward said that he observed Mr Blanch and his offsider put the "60 kilometre" signs up at both ends of the work, and that he noted this in his diary. There is a diary entry for 18 March 1998 consistent with that evidence. 108 I am satisfied on the evidence that there were in place at the date of the plaintiff's accident the signs about which Mr Firman and Mr Ward gave evidence. Indeed, I do not understand Mr Toomey to have ultimately contended to the contrary. 109 I add that Mr Cameron said that there were 60 kilometre signs in place on the day of the accident (T 127); so did Constable Carroll who conducted the test described earlier after taking his vehicle back to the 60 kilometre sign which he placed 1.2 kilometres north of the accident scene. 110 It is the plaintiff's case, however, that there ought to have been repeater signs as provided for by the Australian Standard. According to that standard, there should have been repeater signs every 500 metres, that is for every thirty seconds of travel at 60 kph. 111 Consideration of this submission gives rise to a determination of where the "reduce speed" signs were located. The effect of Mr Firman's evidence, including his reproduced plan, Exhibit 8, was to place the "reduce speed" sign for the southbound motorist north of the first of the "60 kilometre" signs. Mr McCulloch contended that the group of photographs comprising Exhibit 3, being photos of the signs facing northbound motorists, were in the right sequence and this put the "reduce speed" sign after and not before the two "60 kilometre" signs. However, this sign in Exhibit 3 is out of order according to Exhibit 8 and Mr Firman. Exhibit 1 contains the photos for southbound motorists, and none of the photos in this group depicts the "reduce speed" sign. 112 I am asked in effect not to accept the evidence of Mr Firman and to treat him as having made a mistake about the sequence of signs. I am not disposed to do that having heard the evidence that Mr Firman gave. I approach the issue of the adequacy of the signs which the plaintiff encountered as he journeyed south on the basis they were in the order in which Mr Firman said they were placed. 113 Both Mr Hespe and Mr Keramidas gave evidence, inter alia, concerning the placement of advisory signs. 114 Mr Hespe considered repeater "60" signs should have been located every thirty seconds of travel (T 326), as proposed in the Australian Standard, and Mr Keramidas agreed that if there were to be repeater signs in accordance with the Australian Standard, there ought to have been two such signs prior to the spot where the accident occurred (T 645-646). 115 The location of repeater signs in the Australian Standard is not provided for in mandatory terms and I accept the evidence that Mr Keramidas gave that the repetition of speed limiting signs at thirty second driving intervals is not a recognised distance or time that is used (T 618-619). The location determined should be fixed following inspection and appreciation of the particular site. 116 I find that strict compliance with the Australian Standard would have required the placement of two additional "60" speed signs between the second of the "60" speed signs the plaintiff passed and the point where he lost control of his vehicle. However, this leads to the question, would the display of such repeater signs have influenced the plaintiff to reduce his speed? 117 The plaintiff's evidence was that it became obvious to him that some work had been done on the shoulders of the roadway within a kilometre of the point where the accident occurred. He noticed a change in the shoulders and the surface colour of that change continued to the area where the accident occurred. The difference in colour alerted him to the roadworks and he appreciated the need to be alert (T 56). He was asked these questions and gave these answers (T 57): "Q. As you travelled through this section of roadworks which had the shoulders with a different colour on either side, that is as you were travelling south, you did not reduce your speed, did you? A. No.
Q. Is it your evidence you were travelling at 80 km per hour through this section? A. Yes." 118 The plaintiff did not remember whether he saw the various road signs depicted in Exhibit 1. 119 It is necessary for me to express my finding as to the speed at which the plaintiff was travelling when he encountered the kangaroo. 120 Mr Hespe reasoned in his report of 23 January 2003 (at p 8) that although the plaintiff stated he was travelling at 80 kph, it was likely he was travelling "at not very much more than 65 kph, if that". Mr Hespe's reasoning is based in part upon the coefficient of sliding friction he deduced, leading him to conclude that the stopping distance, travelling at 60 kph in the conditions he perceived the plaintiff to have encountered, was 160 metres. Mr Hespe did not put forward the figures on p 8 of his report as "being precise or even definitive". As earlier indicated, I am not persuaded by the figures advanced by Mr Hespe and I do not find his opinion as to the plaintiff's speed persuasive. 121 Mr Keramidas reasoned in his report of 2 September 2003 (at p 13) that the plaintiff's likely speed prior to any evasive manoeuvre was "at or about 90 kph". Indeed, allowing for his swerving first left and then right, his speed was likely to have been "in excess of 100 kph". Having considered Mr Keramidas' evidence, I am not persuaded his evidence on speed is to be preferred to the evidence the plaintiff gave. Indeed, I accept what the plaintiff said about his speed, finding as I do that he gave his evidence honestly. 122 I find, as the plaintiff maintained in his evidence, that the plaintiff was travelling at 80 kph when he first saw the kangaroo and was travelling at this speed notwithstanding the display of the road signs, which I am satisfied he had passed, including the red painted "reduce speed" sign and the two 60 kilometre signs. The plaintiff gave no evidence that had there been repeater signs he would have been influenced by them to slow down, and I regard it as improbable that he would have done so. 123 Mr McCulloch referred me to a decision of the Court of Appeal in Nambucca Shire Council v Connor [2004] NSWCA 13. The decision in that case focuses upon the need to link any breach of duty with harm suffered. Tobias J, with whose judgment the other members of the court agreed, recognised (at para 19) that it may not be necessary in every case for a plaintiff to give evidence as to what would have happened had a warning been given. However it is for the plaintiff to prove on the balance of probabilities that he would have responded to repeater signs had they been in place: see Australian Capital Territory v Kitt [2004] NSWCA 444, and in particular the judgment of Santow JA at para 28. The plaintiff did say in this case he reduced his speed to 60 kph in obedience to a road sign on his northbound journey the day previously, but that evidence does not suffice to persuade me that repeater signs would have had a like effect immediately before the accident in view of the lack of response to those signs he had just passed. The photographs in Exhibit 1 disclose that the 60 signs he had passed were prominently displayed by the roadway, and it is unlikely he would have missed seeing them. It is equally unlikely he would have missed seeing the other three prominent signs that preceded them, none of which influenced him to slacken speed. The plaintiff has failed to satisfy me on the balance of probabilities that had there been the two additional repeater signs in place this would have caused him to slacken his speed. 124 Mr Ward's records (Exhibit 6, p 24) reveal that on 25 March 1998 a "slippery surface" sign was erected. According to the daily sign checklist, that sign remained in place thereafter. What prompted its erection? 125 Mr Ward said that he put up a "slippery when wet" sign after heavy rain on 25 March 1998. The diary note for 25 March records "heavy rain". Mr Ward said that those signs were located somewhere near the intersection of Gurranang Railway Station Road and Summerland Way. He could not recall whether there were two different signs "slippery surface" and "slippery when wet" but he said he would have left the sign up as a precaution thereafter. 126 The plaintiff's accident occurred on a fine, dry day, and there is no suggestion that the road surface was other than dry at the time. Accordingly, I do not consider the absence of the signs first erected on the day following 24 March 2004 assumes any significance. 127 The closest "kangaroo" warning sign was some eleven kilometres north of the accident site. That sign depicted a kangaroo but it was not accompanied by a distance board, provided for in Australian Standard 1742.2 (see Mr Hespe's report, 23 January 2003, Appendix 2). Whilst the failure to exhibit "suitable warning signs of the wildlife" was particularised as a head of negligence in the statement of claim, Mr Toomey did not make any submissions in support of this particular, and I am not satisfied that the failure to post a distance sign with the kangaroo sign was causative of the plaintiff's accident. 128 I doubt that a sign warning of a continuing kangaroo hazard for eleven kilometres or more, whilst complying with the Standard, would of itself keep a motorist exercising reasonable care on alert for eleven kilometres. More importantly however, the plaintiff was born in Lismore and he grew up in northern New South Wales. The plaintiff said he knew it was possible to encounter a kangaroo on the Summerland Way, anywhere between Grafton and Lismore, and at any time (T 21). Hence, the display of a notice would not have contributed to his knowledge, and I am not satisfied that such display would have avoided this accident. 129 If there was a build up of loose gravel lying on the bitumen, then I am satisfied this would have required placement of a sign such as "loose stones" or "loose gravel" to alert approaching motorists to the hazard. I so conclude, influenced in particular by the evidence of the experts, to which I now refer:
(a) Mr Hespe wrote as to this in his report dated 23 January 2003: "It is my opinion that loose gravel should not be left on an unattended road in other than exceptional circumstances; in which case explicit and clear warning signs should be exhibited. Speed restriction signs and 'Reduce Speed' signs alone are, in my opinion, insufficient. At the very least, additional signs stating 'Danger - Loose Gravel' should be used."
(b) Mr Keramidas, in cross examination, was asked these questions and gave these answers (T 652 and following): "Q. Are you suggesting by your evidence yesterday that there is no necessity for any sort of warning signs about loose gravel on the road, on bitumen roads? A. No, I am not suggesting that.
Q. *I understood you to say in effect that there was no danger from having loose gravel on a bitumen road, are you saying that? A. There would be an increased hazard of having loose gravel on a bitumen road, absolutely.
(Question marked * read back by court reporter after stoppage for Remembrance Day.)
TOOMEY: Q. I think you said there was an increased hazard? A. There is an increased hazard, yes.
Q. What is that hazard? A. The hazard is that the skid resistance offered by the road surface is less than the fully operational section of roadway.
Q. Some particular vice about gravel on the bitumen or is it just the same as on any other surface? A. It depends on the amount of gravel on the bitumen and it depends on the bitumen surface as well. The quantity is perhaps more important than the type of bitumen surface.
TOOMEY: Q. The danger of course is that, moving from clean dry bitumen to bitumen with gravel on it, that you are moving from the best road surface that we have to one which is far from the best, isn't it? A. That is correct, yes.
Q. And you would expect, would you not, that if that were the case in roadworks, that by whatever means, by drifts from the shoulders, by droppings from trucks which it has been proved were carrying spoil along that section of road, if by whatever means a coating of gravel and sand extended across the road at that point, largely covering the road, although there were points at which you could see the bitumen through it, you would expect, if that was the case, that a prudent Council would warn of the presence of that material? A. It would certainly be something that I would consider, yes.
Q. Well and having considered it, you would put up a warning sign, wouldn't you? A. I certainly would consider putting up a loose stones warning sign.
HIS HONOUR: Q. When you say you would consider, is it what you would do and if not why not? A. Your Honour it depends on what I would see as being the potential danger caused by it, bearing in mind a 60 kilometre per hour zone. If it was just an operational load I would certainly consider reducing the speed zone. To place a loose materials or a "loose stones" sign would have added benefit in that if I was on site, I would say okay, there does seem to be a little bit here, and I will place one." 130 Was there a build-up of loose gravel on the bitumen requiring the placement of signage to alert motorists to its presence on 24 March 1998?
Conclusions concerning condition of the road surface 131 In assessing the evidence of the relevant witnesses, I am mindful of the finding earlier expressed (para 92) that the bitumen surface where this accident occurred had not been deliberately disturbed as at 24 March 1998. 132 I have read all the evidence concerning the condition of the road surface a number of times. I have not concluded that there was any one witness in this case who gave evidence other than honestly. However, there are critical differences in the description of the road surface: Mr Cameron, Ms Mitchell, Mr Watt Snr, Mr Wesslink and Mr Ingram all gave evidence of there being a significant quantity of gravel on the bitumen surface, both adjacent to and north of the point where the plaintiff's vehicle came to rest, although the descriptions as to the nature and extent of the deposit differed. On the other hand, Constable Carroll saw no deposit of gravel on the bitumen. The evidence of the various Council officers, Mr Perriott, Mr Firman and Mr Ward, was unhelpful on this issue. 133 I find myself particularly impressed by the evidence given by Mr Wesslink and by Mr Ingram. In the area in the vicinity of where his ambulance was parked, Mr Wesslink said gravel extended right across to the western side, and, indeed, he could recall seeing no black bitumen through the gravel. I appreciate that Mr Wesslink when at the scene of the accident was primarily concerned with the condition of the plaintiff and his movement from the car into the ambulance. Moreover, this witness was wrong in thinking that the road was ready for bitumen to be laid, but this was in the context of his general impression about the appearance of the road surface. Making allowance for the matters just mentioned, I consider that the evidence which Mr Wesslink gave concerning the condition of the road surface in the immediate vicinity of the plaintiff's vehicle was nevertheless reliable evidence. 134 I have also concluded that the evidence of Mr Ingram was reliable and was evidence to be accepted. I will not repeat my earlier review of the evidence he gave but it included evidence that he did not walk across any bitumen when he was crossing from his car to the plaintiff's car. 135 Whilst I am acutely alert to the contrary evidence of Constable Carroll, I find myself persuaded by the evidence of Mr Wesslink and Mr Ingram that the bitumen surface in the area adjacent to where the plaintiff's car came to rest, and where the ambulance and Mr Ingram's car were parked, was substantially covered by loose gravel. I find that this cover also extended to where the police vehicle first halted, which point Constable Carroll said was almost opposite the plaintiff's vehicle, mistakenly described by Constable Carroll as overturned. 136 Contrary to Mr Wesslink and to Mr Ingram, Constable Carroll said that he observed nothing about the condition of the roadway as he walked towards the plaintiff's vehicle (T 543). 137 In cross examination Constable Carroll said that he had been interviewed four or five times and was notified he would be required to attend court both last year and the year before. He said he was interviewed by both sides. He was cross examined about an interview with a Mr McNabb. He said he could not recall being interviewed by that person on 26 June 1998. He was asked whether he remembered telling Mr McNabb that he had no specific recollection of whether or not there was gravel or sand on the road. He was asked these questions (T 549):
" Q. Was it the truth that as at 26 June 1998 you had no memory of whether or not it was gravel or sand on the road? A. I don't recall saying that to Mr McNabb. ………. Q. I am asking you was it the truth that as at 26 June 1998 you couldn't remember whether or not there was dirt or gravel on the road? A. I can't answer that." 138 In cross examination Constable Carroll said he had no memory of roadworks to the south of the point of the accident (T 555) and he did not recall there being any roadworks at the scene of the accident (T 557). According to the COPS record (part of Exhibit 9) which Constable Carroll completed, in response to the pro forma cue "Structure on Road", he entered "Roadworks". Constable Carroll was asked about that and was given the opportunity to remind himself as to what the available options were to the cue "Structure on Road". The police officer responded (T 562) that the tailored options were "A bridge; B, tunnel; C road works; D level crossing; E nil". The police officer agreed that he could have entered "nil". As I understand his evidence, he was prompted to make the entry "road works" by the signs that had been erected, and in particular the sign "Road Work 60 kilometres". 139 Mr McNabb gave evidence that he did interview Constable Carroll towards the end of June 1998. At that time, Mr McNabb was a private investigator and had been engaged to make inquiries about the plaintiff's accident. He said that he made a file note immediately upon his return to Sydney from notes taken at the time of interviewing Constable Carroll. He said he had an independent recollection of the conversation with the police officer which was to the following effect (T 686): "…I said to the Const, 'Do you have any recollection of what the road surface was like at the scene when you got there'? And I recall him saying to me, sir, 'I don't remember whether there was any sand or gravel on the road. I do remember it was a bitumen road", or words to that effect, sir." 140 In cross examination, Mr McNabb was asked (T 688): "Q. Is it possible that he said to you that he could not remember there being any gravel on the bitumen at the scene of the accident? A. I don't think so sir." 141 In cross examination Mr McNabb said that his recollection was that he had a copy of the Traffic Incident Report. Mr McNabb had been a police officer and he said when he was a police officer that document was called a P4. That expression having been introduced, he was asked whether he had a copy of the P4 at the time he interviewed Constable Carroll and said he probably did have. In actual fact, the P4 was a form no longer in use by the time of the interview with Constable Carroll, having been superseded by the COPS form; the relevant form was part of Exhibit 9. 142 The reliability of Mr McNabb's evidence was challenged because he must have been wrong in his recollection that he had a P4 form at the time he interviewed Constable Carroll. I do not attach any weight to that criticism, having read the relevant cross examination of the former investigator and having reflected upon it. What he said he thought he had was a copy of the traffic incident report. He said in his day as a policeman, it was called a P4, and I consider it understandable that he continued with that terminology. 143 There was nothing in Constable Carroll's notebook or in the COPS entry (part of Exhibit 9) as to the condition of the bitumen, although both record "Roadworks". Neither document afforded assistance to the police officer's recollection as to the state of the road surface. Whilst I accept the police officer to have been a truthful witness, I consider him to be mistaken in his recollection about the state of the roadway, preferring as I do the evidence of Mr Wesslink and of Mr Ingram. I add that I accept Mr McNabb's account of his conversation with Constable Carroll. 144 Moreover, the evidence of Mr Cameron, Ms Mitchell and Mr Watt Snr also conflicts with the evidence of the police officer concerning the condition of the bitumen surface adjacent to the final position of the plaintiff's vehicle. 145 Of course it is not the condition of the bitumen surface so far south that is critical when seeking to determine what caused this accident. I accept the accuracy of Constable Carroll's measurements as recorded in his notebook on the day of the accident, which place the point at which the plaintiff lost control of his vehicle as being over 130 metres to the north. What was the state of the road surface where the plaintiff endeavoured to take evasive action and apply his brakes? Neither Mr Wesslink nor Mr Ingram made observations so far to the north. Mr Wesslink observed the gravel to extend across the road for at least 30-40 metres north of the point where the plaintiff was placed in the ambulance, but since the ambulance did a U-turn for the journey back to the hospital at Grafton, his observations extended no further to the north. 146 Mr Ingram's observation was that there were patches of dirt and gravel over the bitumen for at least 100 metres north of the plaintiff's vehicle, but I do not understand his observations to have extended specifically so far as the point where the tyre marks began. 147 The only witnesses who gave evidence about the state of the road that far north were Mr Cameron, Ms Mitchell, Mr Watt and Constable Carroll. 148 Mr Cameron was sure the old bitumen outside his property had been replaced by new bitumen prior to the accident, and I am satisfied this evidence was incorrect. Mr Cameron also gave evidence that on the day of the accident he could see trucks to the north putting tar and gravel down (T 123). That evidence I also find to be incorrect. Having regard to Mr Cameron's evidence, confidently but mistakenly given on these matters I have identified, I do not find I am assisted by his evidence in determining the state of the roadway in the vicinity of the northern end of the tyre marks. 149 This leaves Ms Mitchell, Mr Watt and Constable Carroll. 150 Ms Mitchell walked to the north observing the tyre marks from the point of their commencement on the day of the accident. Accepting as I do the recorded measurements of the police officer, the recollection of Ms Mitchell that those marks extended for "maybe 130 metres" was an accurate recollection. Ms Mitchell was wrong in her observation that the road had on it dirt, road base and gravel prior to further work being done on it (T 146-148), suggesting a perception that the deposit was deliberate, but in cross examination, to which I earlier referred (para 42 above), Ms Mitchell described the tyre marks as crossing to the right hand side of the road over an area "that would have been covered with bitumen if the bitumen had still been there." As I understand her evidence at this point, the witness was describing the surface there as being a mixture of dirt, road base and gravel. 151 The evidence of Mr Watt was that gravel "one inch or so" thick extended for 200 metres north of the plaintiff's vehicle. Mr Watt was wrong in his expressed perception that this gravel had been deliberately laid but his evidence is consistent with that of Ms Mitchell in tending to establish a substantial deposit of gravel in the vicinity where the plaintiff lost control of his vehicle. 152 Mr Watt, of course, had a very real interest in what he saw because of his relationship to the plaintiff but it was not suggested that he was setting out to deceive the Court, and I formed a favourable impression of Mr Watt as a witness. 153 Constable Carroll's evidence is, of course, to the contrary, but not only does Constable Carroll not recall seeing gravel on the road between where he first parked the police vehicle and where the plaintiff's vehicle was, but his recollection is that there was no loose material on the bitumen road surface other than tyre marks as the marks proceeded from north to south (T 545). In short, the effect of Constable Carroll's evidence is that where the tyre marks on the bitumen evidenced the path of the plaintiff's vehicle up to the point where it ultimately left the eastern side of the bitumen, he saw no loose gravel at all. 154 Hence Constable Carroll's evidence is in stark conflict with the evidence of Ms Mitchell and Mr Watt in the area where the tyre marks began; and it is in conflict with the evidence of Ms Mitchell, Mr Watt and Mr Ingram from a point 100 metres to the north of where the plaintiff's vehicle came to rest; and it is in conflict with the evidence of Mr Wesslink, Mr Ingram, Ms Mitchell and Mr Watt from a point 30-40 metres north of that vehicle to the point where it came to rest. 155 I do not accept as correct the evidence given by Constable Carroll concerning the state of the roadway, preferring the contrary evidence I have reviewed. 156 I find myself persuaded on the balance of probabilities that there was a deposit of loose gravel on the bitumen surface at the location where the plaintiff sought to change direction and to brake in order to avoid a kangaroo, and that the vehicle continued to cross loose gravel as it crossed over the bitumen to the western shoulder. 157 Mindful of the expert evidence earlier reviewed (in particular at paras 35, 36 and 37 above), I am satisfied on the balance of probabilities that the presence of loose gravel encountered as described caused a loss of traction sufficient to cause the plaintiff to lose control of his vehicle. Having crossed to the western shoulder, I am satisfied that the vehicle continued out of control along that shoulder in a very slight curve until it left the western shoulder. I am satisfied the vehicle again encountered loose gravel on its return to the bitumen and that it remained out of control until it finally came to rest after striking the embankment. 158 I am satisfied that the risk of the build-up of the material on the bitumen surface causing loss of control of a vehicle encountering it was a reasonably foreseeable risk and that the defendant Council, as the entity carrying out the roadwork, owed a duty of care to take reasonable precautions directed towards the safety of road users crossing the affected area. The discharge of that duty required of the defendant Council that it adopt the measures to which I referred earlier (see para 98), namely:
(a) to introduce and maintain a system of cleaning to remove any build-up of loose gravel at the end of working hours as referred to by Mr Hespe; and
(b) to warn of the presence of any offending material left on the road surface. 159 I find that the defendant Council failed in both respects. Whilst, as I observed earlier, the evidence was silent as to any cleaning system the Council may have had, I am satisfied that the build-up of loose material in the relevant area was so extensive as to demonstrate a failure to clean as required. Further, there ought to have been displayed a sign specifically warning of the presence of loose gravel, such as Mr Hespe referred to in his evidence (as to which see para 130(a) above). 160 I am satisfied that the defendant was negligent in permitting the road surface to remain in the condition which the plaintiff encountered and that such negligence was causative of the accident. I am also satisfied that the defendant was negligent in the failure to warn referred to in paras 158 and 159. 161 Hence I conclude that the plaintiff is entitled to recover damages. 162 This brings me to contributory negligence. 163 I am satisfied on the balance of probabilities that the plaintiff failed to exercise reasonable care for his own safety. 164 I find that the plaintiff travelled past the various signs which I am satisfied were erected in accordance with Mr Firman's plan (see paras 100 and 101 above), and I accept that notwithstanding the warnings displayed the plaintiff continued on without reducing his speed below 80 kph, the speed at which I have found the plaintiff was travelling when he first saw the kangaroo. The plaintiff does not recall seeing the signs that were erected. If he did see them, he was negligent in failing to comply with them. If he did not see them, he was negligent in failing to do so, such failure being indicative of a failure to keep a proper look out. 165 Whilst I am satisfied that there ought to have been erected a sign warning of the danger of loose gravel having regard to the extent of the deposit, and that the presence of such a sign should have had the effect of sharpening the perception of a motorist of what lay ahead, it seems to me that had he been keeping a proper lookout, even without such a sign, the plaintiff should have been aware that there was a change in the condition of the road surface before he entered on the affected area as described by Mr Watt and by Ms Mitchell. This accident occurred in broad daylight in dry weather conditions, and had the plaintiff been paying due attention he ought to have appreciated the need to reduce speed by reason of the appearance of the road surface in the affected area, before he entered upon that area. 166 I am satisfied that the speed at which the plaintiff was travelling, namely 80 kph, was an excessive speed in all the circumstances and that it contributed to the accident that occurred in very real measure. 167 The damages recoverable by the plaintiff are to be reduced to such extent as the court thinks just and equitable having regard to his share in the responsibility for the damage. In Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 532-533, Gibbs CJ and Mason, Wilson, Brennan and Deane JJ said in their joint judgment: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." 168 I find guidance from the above statement of principle in my present task. Having made the comparative examination which is required, I conclude that it is appropriate in all the circumstances of the plaintiff's accident that his damages should be reduced by one-third because of his contributory negligence.
Formal findings and orders 169 1. I find negligence to have been proved.
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Watt
Copmanhurst Shire Council