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.