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  • Unreported Judgment

Tait v Goondiwindi Regional Council

 

[2019] QDC 208

DISTRICT COURT OF QUEENSLAND

CITATION:

Tait v Goondiwindi Regional Council [2019] QDC 208

PARTIES:

PAULA DIANNE TAIT
(plaintiff)

v

GOONDIWINDI REGIONAL COUNCIL
ABN 79 969 846 487
(defendant)

FILE NO/S:

BD 1665/18

DIVISION:

 

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

15, 16, 19, and 22 August 2019

JUDGE:

Jarro DCJ

ORDER:

  1. Judgment for the plaintiff in the sum of $304,138.11.
  2. I will hear the parties as to costs.

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – where the defendant is a local government or public authority – the general principles concerning resources, responsibilities etc. of public or other authorities in s 35 of the Civil Liability Act 2003 – where the local government had a duty of care to repair defects in a State-controlled road pursuant to a contract between the local government and the State – whether the local government has a duty of care to road users, such as the plaintiff, to fix ‘intervention level’ defects and defects deemed to be safety hazards in a timely and efficient manner and to maintain the road network to a safe standard for road users

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where there was heavy rainfall connected with a declared disaster – where the plaintiff was injured following a collision with a large ‘pothole’ or ‘washout’ in a floodway on the State-controlled road within the declared disaster area – where employees of the local government attended the area of the floodway prior to the accident and erected temporary signage on both approaches to the floodway warning road users of a ‘rough surface’ and to ‘reduce speed’– where the local government employees failed to properly secure the temporary signage and the temporary signage was not visible to road users approaching the floodway from a southerly direction – where the local government did not have system to monitor the availability of temporary signage and/or sandbags to secure temporary signage – where the plaintiff was not put on notice to adapt to the changed driving or riding conditions – whether the local government breached its duty and is liable for misfeasance

TORTS – CIVIL LIABILITY LEGISLATION: MODIFICATION TO TORTS AND THE LAW OF NEGLIGENCE – LIABILITY OF PUBLIC AND OTHER AUTHORITIES – the restriction on liability of public or other authorities with functions of road authorities in s 37 of the Civil Liability Act 2003 – whether the local government had actual knowledge of the particular risk, the materialisation of which resulted in the harm – where the local government had actual knowledge of the deteriorating surface of the in the floodway on the State-controlled road

DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – METHOD OF ASSESSMENT – GENERALLY – the test in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 – where the plaintiff works as a practice nurse at a medical centre – where the plaintiff is close to the normal statutory retirement age – where the earning capacity of the plaintiff was diminished by reason of the injuries

Civil Liability Act 2003, s 13, s 15, s 23, s 24, s 35, s 37, s 55, s 59

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

Curtis v Harden Shire Council [2014] NSWCA 314

Kelly v State of Queensland [2013] QSC 106

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Pettigrew v Wentworth Shire Council [2012]  NSWSC 624

Strong v Woolworths & Anor (2012) 246 CLR 182

COUNSEL:

R J Lynch for the plaintiff

K S Howe for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

King & Company Solicitors for the defendant

  1. [1]
    On the afternoon of Sunday 25 September 2016, 58 year old Goondiwindi local Paula Tait was riding her Yamaha XVS1100 motorcycle in a recreational group with a number of other motorcyclists, in a southerly direction along the Leichhardt Highway, through the Mittengang Creek floodway, when she struck a large pothole/washout and suffered injuries. Ms Tait seeks to recover damages from the Goondiwindi Regional Council who was responsible for repair and maintenance works upon the Leichhardt Highway where the pothole was located.
  1. [2]
    The Goondiwindi Regional Council (“the Council”) is a local government authority with control over a network of sealed local roads in the order of 600km to 800km and gravel roads of approximately 1,400km. The Council has a further 800km of roads which it maintains on behalf of the State of Queensland via a contractual arrangement known as a Road Maintenance Performance Contract (“RMPC”).[1]     
  1. [3]
    The Mittengang Creek floodway (“the floodway”) is located at Billa Billa, along the Leichhardt Highway (“the highway”). The floodway is located approximately 47km north from Goondiwindi. The relevant section of the highway is a two lane undivided bitumen sealed road. The prevailing speed limit is 100km/hr.
  1. [4]
    The floodway has been constructed by lowering the road profile for a distance of approximately 100 metres to allow water to flow over the road during times of heavy rain. Depth markers are erected adjacent to a box culvert on both sides of the road.[2]  Traffic control at this location is provided by a single broken line and edge lines only.  Double “Floodway” signs with temporary flaps stating “Water Over Road” are provided on both approaches to the floodway.[3]   
  1. [5]
    Ms Tait’s interest in motorcycles commenced in late 2007. She obtained an open licence in 2012. She rode recreationally on Sundays two to three times a month with other enthusiasts. Her recreational rides took her on short trips as well as long trips including the Great Ocean Road, Maryborough, Cairns and Port Macquarie. She had no prior accidents. She has no traffic infringements.

Events leading up 25 September 2016

  1. [6]
    Between 13 and 20 September 2016, there was unseasonable and considerable rainfall which brought flooding and isolation to western Queensland communities. The rainfall event was a declared disaster.[4]
  1. [7]
    Mr Dean Bartels was part of the Council’s patching crew.[5]  He drove through the floodway on Monday, 19 September 2016.  He said that he saw water over the floodway.  Relevantly, the floodway at 7.20 am had about 0.3 of a metre of water over the road.[6] 
  1. [8]
    The following day on 20 September 2016 at 8.00 am, Mr Bartels drove through the floodway and noted that the water was at 0.1 of a metre.[7]  At 12.45 pm, he again drove through the floodway and noted that it had reduced to surface water.[8]  Mr Bartels said that with any rain event, “there’s always potholes on the road”.[9]  
  1. [9]
    The following day on 21 September 2016 at approximately 10.45 am, the Council’s technical officer, Katie Galvin, notified a number of Council employees and representatives that:
  1. (a)
    there was water over the highway at several locations near Billa Billa; and,
  1. (b)
    there were significant potholes in locations including the highway.[10]
  1. [10]
    The following morning on 22 September 2016, Ms Galvin and the Council’s district engineer, Chris Smith, were attending a drainage issue about 100km north of Goondiwindi. They drove along the highway at about 8.00am. Mr Chris Smith said they took a number of photographs of the floodway.[11]  The photographs of the floodway showed:
  1. (a)
    weather conditions were fine;
  1. (b)
    the sealed surface of the roadway had begun to strip; and,
  1. (c)
    potholes were beginning to develop on the roadway.[12] 
  1. [11]
    Mr Chris Smith also said that he saw the “Water Over Road” sign visible on both approaches, being the southern and northern approaches of the floodway.[13]   
  1. [12]
    At approximately 10.03 am on 22 September 2016, Ms Galvin sent an email to a number of Council employees and representatives which notified them that:
  1. (a)
    the highway was open;
  1. (b)
    there was low depth water present over the highway in various locations between Mittengang Creek and Mount Carmel Road; and,
  1. (c)
    there was pavement damage on the floodway.[14]
  1. [13]
    The email included the following:

“Leichhardt highway is open with low depth water over the road in various locations between Mittengang Creek and Mt Carmel Road.  Some pavement damage through floodways – travel to conditions”.[15]

  1. [14]
    When Mr Chris Smith returned to Goondiwindi at 11.00am on 22 September 2016, he made contact with a supervisor of the Council’s patching crew, Mark Everingham. Mr Chris Smith advised Mr Everingham that an inspection and potential signage might be required.[16]  He gave evidence of his conversation with Mr Everingham:

“Did you tell him to put signage up?---I said it – it need to be inspected.  There’s water over the road, there’s pavement – there’s bitumen that’s lifted off and the pavement is exposed.  It will require inspection potentially, ‘Just see what you think’, and whether signage is required.”[17]

  1. [15]
    The reference to “signage” is a reference to the Council’s temporary signage.
  1. [16]
    There existed temporary signage in respect of which:
  1. (a)
    it stated “ROUGH SURFACE” in black letters against a yellow background;
  1. (b)
    it stated “REDUCE SPEED” in white letters against a red background, inter alia, that there was a rough surface and speed should be reduced;
  1. (c)
    it faced south bound traffic;
  1. (d)
    it was situated north of the potholes which had formed on the floodway;
  1. (e)
    it was not secured by sandbags or an equivalent weight;
  1. (f)
    a similar sign had been erected on the southern side of the floodway; and,
  1. (g)
    both signs had been erected along the grassy verge a short distance away from the edge of the road carriageway.[18]
  1. [17]
    Following Mr Chris Smith’s conversation with Mr Everingham on 22 September 2016, certain staff of the Council’s patching crew, namely Brendan Doughty, James Deans and David Webster, attended upon the floodway on 22 September 2016 and erected a free-standing sign on the southern approach to the road floodway situated off the eastern edge of the roadway.[19]  A free-standing sign was also erected on the northern approach to the floodway situated off the western edge of the roadway.  The free-standing signs were the Council’s temporary signage.   
  1. [18]
    Mr Deans confirmed that on 22 September 2016, he, along with Mr Doughty and Mr Webster, went to the floodway and “had to put [temporary] signs out”.[20]   
  1. [19]
    Mr Doherty visited the floodway on three occasions prior to the date of the accident. He made certain observations which were eventually reduced to a handwritten file note.[21]  He gave unchallenged evidence that on Thursday 22 September 2016, he went with Mr Deans and Mr Webster to the floodway which was “washed out from floodwater as a result to have potholes in the floodway to be dangerous to traffic so put rough surface sign up”.  They “put rough surface sign up”.  Sandbags were not attached to the “legs of [the] signs” because they “didn’t have any”.[22]  Sandbags are usually attached to the temporary signage in order to weigh temporary signage down.[23]
  1. [20]
    On Saturday 24 September 2016, Mr Doughty went through the floodway with Timothy Lloyd and Brian Smith. He considered that “the floodway needed patching with pre-mix as it looked dangerous to road users”.[24]  Mr Doughty was not challenged about his recollection.  He said that between 22 and 24 September 2016, the water on the floodway did “recede and go down”.[25]      
  1. [21]
    Mr Brian Smith, who is also part of the Council’s patching crew, attended the floodway twice on 24 September 2016 with Mr Doughty and Mr Lloyd. He noticed a hole slightly left to the centre line which was underwater.[26]  He had described the hole as being around 30 – 40mm deep.[27]  He said the temporary signage was erected on both approaches to the floodway.  The signs were not secured by sandbags because it was a busy time of the year.  If sandbags were available, he would have utilised them to secure the signs.[28]  The purpose of the temporary signage was to forewarn motorists of the area ahead, that is not to warn of any particular pothole, but rather to warn motorists that the area ahead had a “generally rough surface”.[29]
  1. [22]
    Mr Lloyd said that he attended the floodway twice on 24 September 2016 – the first at 8.00am and an hour later at 9.00am. On the second occasion, he said the water was receding on the floodway.[30]  He earlier described it as a “trickle” not a “flow”.[31]  The temporary signage was erected.  Its purpose, according to his evidence, was to warn motorists about the changed traffic conditions (including a rough surface).[32]  He was unable to recall whether any sandbags were used.[33]    

Motorcycle Accident – Sunday, 25 September 2016

  1. [23]
    On the day of the accident, Ms Tait was riding with a group of others in order to find a feedlot in Dalby for fellow recreational motorcyclist, John Bush.[34]  The group consisted of Belinda Trehearn, Helen Death, John and Jane Bush, Greg Bruin, Raelene Donpon and Stephen Donpon.[35]      
  1. [24]
    The group (save for the Donpons) met at the Caltex service station at Goondiwindi.[36]  The Donpons then joined the group when the group caught up to them given the Donpons lived about 30km from Goondiwindi. 
  1. [25]
    The weather conditions were sunny and fine apart from a brief light shower for about 10 minutes at the commencement of the trip.[37] 
  1. [26]
    Exhibit 12 depicted the route the group travelled that day. They travelled along the Gore Highway to Dalby, via Millmerran. From Dalby, the group travelled to Moonie where they refuelled, had snacks and coffee, and then returned via the Leichhardt Highway from Moonie to Goondiwindi.[38]  The exhibit showed the group travelled about 400km prior to the accident.    
  1. [27]
    During the journey, Ms Tait did not see any water across the highways and she observed “lots of floodway signs”.  She said the road between Millmerran and Dalby had a lot of temporary signs describing “rough surface” and “slow down”.  When she saw such signs, she slowed down.[39] 
  1. [28]
    The group rode in a staggered configuration. The lead rider was Belinda Trehearn. Ms Trehearn was positioned closest on the left towards the side/fog line. Ms Trehearn’s mother, Helen Death, was closer to the middle line. Ms Tait followed Ms Death. Ms Tait said she was two – three car lengths behind Ms Death, “roughly middle lane”.  She looked at her speed before the accident and the group “were down to 80 kilometres”.[40]
  1. [29]
    Ms Tait gave evidence that she noticed a permanent Floodway sign prior to the actual floodway. There was no other signage.[41]  She then noticed Ms Trehearn “veer really sharply to the left” and then she saw what she described as “discolouration”.  She then saw Ms Death “airborne” on her motorcycle.  Ms Tait explained:

“[Ms Death’s] bike was up off the ground, so she had – her wheels were off, her legs were up behind her, she lifted up from her seat and I’d sort of seen her go forward and then, I saw her sort of come back.  She’d obviously hit her windscreen.”[42]

  1. [30]
    Ms Tait was in dry gravel in the washout when she saw this. It was then that she realised she was “in trouble”.  She tried to veer left to get away from Ms Death because she thought Ms Death’s bike was going to flip.  The next thing she experienced was being “catapulted”.  She hurt her back and she tried to stand but could not.[43]  She explained that she hit the deepest part of the washout.[44]  It is not in dispute that the dimensions of the pothole were 20cm deep, 30cm wide and 1 metre long.[45] 
  1. [31]
    Under cross-examination, Ms Tait said that she and her group rode in a staggered line and that her vision was obstructed “to a certain extent”.[46]  She had crossed a number of creeks prior to the accident and had seen signage during the trip.  She was aware of previous rainfall, serious flooding and potential damage to the roads including potholes.[47]  She explained that the lead rider would have slowed down and then the remaining group members would follow.  She constantly screened her speedometer which reflected variable speeds between 100km/hr and 80km/hr immediately prior to the accident.  She said that she rode to the conditions of the roads including slowing down when the surface was rough.  She did not accept that she was travelling “too fast” at the time of the accident.[48]
  1. [32]
    Under re-examination, Ms Tait indicated that the staggered ride formation was better than the other alternative which is a single file. She indicated that she would have slowed down had the riders in front of her slowed their speed at an earlier time.
  1. [33]
    At trial, Ms Tait called the people with whom she rode on Sunday 25 September 2016, namely, Belinda Trehearn, Helen Death, Greg Bruin, Steven Donpon and Raelene Donpon. Their evidence is expanded below.
  1. [34]
    Ms Trehearn is a registered nurse who had known Ms Tait for approximately 30 years. She confirmed that she has ridden with Ms Tait for about six years including on long rides, day trips, long weekends and holidays. According to Ms Trehearn, Ms Tait is a “very sound” and a “very cautious, careful rider”.  She has never observed Ms Tait to have ridden out of her comfort level.  The frequency upon which they rode together extended to upwards of once or twice a month.
  1. [35]
    As indicated earlier, Ms Trehearn was the lead rider. The group was travelling in a southerly direction. At the commencement of the trip, there was some initial rain which was light, however, Ms Trehearn described the weather conditions thereafter as “clear, good visibility, no further rain”.  The group stopped at Dalby for coffee and at Moonie for lunch. 
  1. [36]
    Ms Trehearn did not encounter any flooded roads that day. She said that she would always decrease her speed when she observed signs that indicated changed traffic conditions.[49]   
  1. [37]
    As she was approaching the floodway, there was no signage to indicate a change to the traffic conditions. She said that she was travelling a metre off the fog line at 100km/hr when she first noticed discolouration across the road.[50]  It changed from a black top or a grey top to an orange dusty type appearance and as she got closer she saw there was a defect, and she reduced her speed to 80 km/hr.[51]   Initially she thought it was just a bit of gravel.  She thought it was a repair which had not yet been bitumened which she said was not uncommon and she could reduce speed and go across it.[52]  She was able to avoid the washout by travelling closer to the fog line on the remaining intact bitumen.  Once she was on that bitumen, she was able to look down and see the depth of the hole and realised it was not a “defect of discolouration”, but rather, “very deep holes that were going to cause a problem”.[53]  She could see a vehicle coming towards them and she looked in her rear vision mirror and saw her mother’s motorcycle wobble and knew that her mother was “in trouble”.[54]  She was then able to do a quick turn around and as she did that, she saw a bike going “end to end” and a “black figure rolling and rolling and flying”.  She later realised it was Ms Tait.[55] 
  1. [38]
    While waiting for the Queensland Ambulance Service to arrive, Ms Trehearn saw a man in a car pull over “off to the side of the [road] and stood up a sign which he tried to keep upright”.  She did not see the writing on the sign but observed the sign to be rectangular in shape.  If she had seen the temporary sign, that is the one indicating “ROUGH SURFACE/REDUCE SPEED”, she said she would have “braked”.  She said:

“If I had have seen a sign to reduce speed, I would have braked.  I would have deliberately brought it down much quicker than I did.  As it was, I had a defect that I was trying to assess and what to do best, not only for myself, obviously, but for everyone else as well, being that I had a vested interest in everybody behind me.  So I had – not only just reducing my speed for the defect I saw.  Every time there’s a sign instructing you to do something, I will reduce more speed more efficiently, if it is a directive, as such – “Rough road”, “Water over road” – all of that.  I’m going to act quickly to make that happen.  There’s not a lot between our skin and the road.  And I would have brought it down much faster.  And that’s what we’d done all the way along, obeying the road.  We’re a mob of oldies.  I’m not going to jeopardise us.

MR LYNCH:   And, when you say you would have reduced our speed, how would you do that?By braking.  By braking, not just taking my hand off the throttle, but by actively braking.”[56]

  1. [39]
    Under cross-examination, Ms Trehearn was not sure what speed she was travelling in the washout. Her best estimate was perhaps 60km/hr or lower. She did not observe any temporary signage. She was not aware the Council issued a media release about the flooding within the region. She did not know how significant the problem of the washout/pothole was until she “was looking down on it”.[57]  She said, as the lead rider in a staggered formation, she set the pace.  She confirmed that her mother travelled behind her on her right with Ms Tait behind her mother on the right at approximately one to two car lengths.  She said that she did not ride in a single file; rather, “we ride staggered so you can see”.[58] 
  1. [40]
    Under re-examination, Ms Trehearn indicated that the pothole where the accident occurred was not as significant as the one they encountered. She encountered no other near misses that day.[59]
  1. [41]
    Ms Death is a seamstress who has known Ms Tait for a long time. She has ridden for approximately 40 years. She has ridden with Ms Tait for about nine years, locally and long distances, generally on the weekends for recreational purposes. She described Ms Tait as a “good, competent rider”. 
  1. [42]
    On the day of the accident, Ms Death confirmed that the group stopped at Dalby and Moonie. The weather conditions were “good” initially from a “quick scud”.  Visibility was “great”.  She described her daughter as the lead rider with herself two to three car lengths behind in the middle of the road.  She was followed by Ms Tait. 
  1. [43]
    Ms Death was sitting on 100km/hr as they were heading towards the floodway.[60]  She noticed Ms Trehearn slow and move to the edge of the road.[61]  She reduced her speed to 80km/hr.[62]
  1. [44]
    Ms Death said that she did not realise there was any sort of issue with the road in front of her until she was literally “on top of it”.[63]  She said there was nothing she could do, other than ride through it and hopefully “stay on”.  Her legs went up in the air and she hit the windshield but managed to stay on her motorcycle.  Her tyres were blown, and her rims were buckled.  She was able to pull over to the side of the road.[64]  Ms Death said that she was fortunate in the way she went through the pothole, as she was slightly to the left of where Ms Tait travelled.[65]
  1. [45]
    After the accident she saw a person exit a vehicle about 200 metres from the group and stand up, what she assumed, was a road sign.[66]  She did not witness Ms Tait’s accident.  Had she seen a temporary sign, she would have slowed down.  She said: “We’d slow down and check and whatever the signs were, we’d observe them”.[67]  There were no flooded roads during the ride.  She said there was no opportunity to brake in sufficient time.  She explained:

“If you saw her brake lights come on, what would you   ?Well, we would know that something was on that would indicate that – something that was there and to brake or be careful. 

Did you have any opportunity to brake before you hit the large pothole?No, by the time I saw what it was, I could not do anything.”[68]

  1. [46]
    Under cross-examination, Ms Death indicated that she did not notice any discolouration on the road. She saw Ms Trehearn veer to the left and “it was only a matter of seconds” until she came into contact with, what she described as “the defect”.  Her speed reduced from 100km/hr to about 80km/hr, when Ms Trehearn moved over.  She did not see any media releases prior to the accident.  She encountered a number of signs on her journey including road surface and floodway signs. 
  1. [47]
    Mr Bruin is a mechanic who is married to Ms Trehearn. He met his wife in August 2011. This was also the time that he came to know Ms Tait. Mr Bruin has ridden with Ms Tait before. He described her as “meticulously safe” and a “responsible rider”
  1. [48]
    Mr Bruin was travelling behind Ms Tait.
  1. [49]
    He said initially there was “a slight scud of rain” in the morning at the start of the journey.  He described the state of the roads in some instances in the Toowoomba and Dalby Shire regions as a “little chopped up” but:

“The signage was meticulous, that there were traffic hazards or reduced speed instances.  So we were very well-catered for, to be able to slow down and avoid any problems.

What would the group do if they encountered such a sign?Slow down.  And usually once you see the brake lights of the lead rider, you know something’s afloat, so everybody reduces their speed.  And depending upon how bad it is when the lead rider comes to it, they sometimes even have to stop to – or get a hand up or whatever, to stop the flow of everybody else.”[69]

  1. [50]
    The group rode in a staggered file. They never rode two abreast. As they approached the floodway he noticed Ms Trehearn “travelling pretty close to the fog line”.  The colour of the road changed from “standard black bitumen to lighter browny colour” and he saw Ms Trehearn take “a line a further to the left” of the fog line.  He thought something’s afloat here”, so he “backed off” and “not long after” saw Ms Death “hit the washed out part of the road”, which he described as “all out of trim”, which was the back of the motorcycle being raised and fishtailing.  That was when he “knew something was really wrong”.  It was only seconds after that that Ms Tait “hit and was catapulted from her bike”.[70] 
  1. [51]
    Mr Bruin could not recall seeing any brake lights. He was travelling behind Ms Tait at about three to four car lengths. When she saw Ms Death starting to take evasive action, he “backed off the throttle”.  He actively applied the brakes when he saw her hit the “washed out part of the road”.  Mr Bruin safely avoided the pothole.  He said there was a complete absence of signage warning of any compromise in the road surface prior to the washout area. 
  1. [52]
    After the group pulled up, he noticed a Toyota RAV4 veer away and a motorist exit the car to re-erect a sign. He only saw the back of the sign which was rectangular in shape. He was adamant the signage was not up at the time of the accident.
  1. [53]
    Mr Donpon has been a resident of Goondiwindi since 1975. He is a station manager who has known Ms Tait for 40 years or more. He has ridden a motorcycle for the last 50 years and more recently with Ms Tait since 2009, the frequency with which they rode was about once a month. In his view, Ms Tait is a “very cautious rider”
  1. [54]
    Mr Donpon was riding with the group on 25 September 2016. Like the other witnesses explained, the weather conditions were generally fine save for a brief shower in the morning. There was no water across the roads at all during the group ride. He saw the accident occur. He indicated that he was riding in fifth position behind Mr Bruin, Ms Tait, Ms Death and Ms Trehearn. His wife Raelene was riding behind him. They rode in a staggered line. He was on the dotted line on the centre side of the road. He estimated that he was about 50 metres behind Mr Bruin. He saw one bike in the air which hit the relevant area and he thought it was Helen Death. At that stage he was doing 100km/hr. He indicated that they pulled up immediately after the incident just on the edge of the bitumen at the bottom of the floodway. There he went to the aid of Ms Tait.
  1. [55]
    He gave evidence that there was no temporary signage before the pothole. He said that when he was travelling, he did not see any “Water over road” or “rough surface” and “reduce speed” signs. He then observed “old mate in a little blue car” put a rectangular sign up. 
  1. [56]
    In cross-examination, he accepted that about seven days prior to the accident, the area experienced heavy rain and some flooding. He indicated that it was not necessarily the case that one reduces speed when approaching floodways. He reduced his speed when he saw the first motorcycle bounce when he was about 150 metres away from it.
  1. [57]
    Mrs Donpon is a cattle producer who has known Ms Tait since schooling at the Goondiwindi State High School. Before the accident, they rode motorcycles together from about 2009, generally on Sundays every few months. She described Ms Tait’s ability as a rider as “confident and cautious”
  1. [58]
    In her capacity as a cattle producer and station manager she kept rainfall records. Those records for her property indicated that the last time it rained before the Sunday ride was on the Wednesday. She said that her property was about 40km from the accident site.
  1. [59]
    Similarly, and like the other witnesses, she said that the weather conditions on the day were fine, save for a small shower in the morning. There was no water across the roads. She passed other floodways which were dry and the flooding signs were erected, two of which had the “Water over road” flaps displayed.
  1. [60]
    She gave similar evidence that the riders rode in a staggered formation “so you have better vision clearance”.  Mrs Donpon noticed that something was “amiss” when she saw Ms Death go up in the air.  Ms Tait then followed.  She pulled up before the damaged area and safely avoided the pothole.
  1. [61]
    When she got off her motorcycle, she “realised pieces of bitumen were missing”.  As she approached the floodway, she only saw the permanent Floodway sign.  She said that there was no other signs on her approach. 
  1. [62]
    She confirmed too, like her husband, that a little blue car stopped, someone exited from it and walked over to the sign and pulled it up. She was not sure the precise description of the sign but remembered the sign was rectangular in shape.
  1. [63]
    Under cross-examination, Mrs Donpon indicated that she knew to reduce speed when approaching floodways. She was about six seconds or more behind her husband. She saw a person go up in the air, then, she decelerated and actively applied her breaks.
  1. [64]
    It is convenient at this juncture to express a number of findings:
  1. (a)
    My assessment of Ms Tait’s motorcycling skills was that she was a reasonably experienced, competent and cautious motorcyclist.  She is not a risk taker or one to ignore safety warnings regarding driving conditions. My assessment of Ms Tait generally is that she is an honest, decent, hardworking member of the Goodwindi community. 
  1. (b)
    Between 13 and 20 September 2016, there was unseasonable and considerable rainfall which brought flooding and isolation to western Queensland communities. 
  1. (c)
    On the morning of 22 September 2016:
  1. (i)
    the Council was aware there was pavement damage on the floodway; and,
  1. (ii)
    the sealed surface of the roadway had begun to strip and potholes were beginning to develop in the area of the floodway. 
  1. (d)
    On 22 September 2016, members of the Council’s patching crew attended the floodway, which was “washed out from floodwater as a result to have potholes in the floodwater to be dangerous to traffic so put Rough Surface sign up”.
  1. (e)
    A temporary sign (with the words “ROUGH SURFACE” and “REDUCE SPEED”) was erected on both approaches to the floodway on 22 September 2016 by the Council staff.
  1. (f)
    There were no sandbags available to secure the temporary signs on both approaches to the floodway as the Council’s supply of sandbags was exhausted on 21 September 2016. 
  1. (g)
    It was the Council’s normal practice when placing temporary signs to place sandbags on the signs to hold them in place.
  1. (h)
    On 24 September 2016, the floodway needed patching “as it looked dangerous to road users”.
  1. (i)
    As at 25 September 2016, the Council was aware of the existence of potholes/washout at the floodway.
  1. (j)
    On 25 September 2016, the state of the roads (including the floodway) was dry, open and passable by traffic.
  1. (k)
    On 25 September 2016, the riding group:
  1. (i)
    had not at any stage on their journey observed any water across/over the roadway;
  1. (ii)
    were riding in a sensible, staggered formation, at an appropriate speed as they approached the floodway in a southerly direction; and,
  1. (iii)
    saw a Floodway sign prior to their approach to the floodway but did not observe any other sign (i.e., temporary signage).  The Floodway sign did not command a reduction in speed.
  1. (l)
    On 25 September 2016, immediately prior to the washout, Ms Tait was travelling at 80km/hr.
  1. (m)
    On 25 September 2016, Ms Tait had no reasonable means of avoiding the pothole/washout because:
  1. (i)
    Helen Death could not avoid the pothole/washout but managed to stay on her motorcycle;
  1. (ii)
    Belinda Trehearn was not aware of the extent of damage until she was effectively beside the pothole/washout; and,
  1. (iii)
    Ms Tait reduced her speed when she saw Ms Trehearn swerve, but did not actively brake.
  1. (n)
    After the accident, a motorist travelling northbound on the highway stopped, got out of his vehicle and stood up a rectangular sign.
  1. (o)
    The rectangular sign was the temporary signage.
  1. (p)
    The temporary signage had been blown over at some time prior to Ms Tait’s approach to the floodway, between the morning of 24 September 2016 and 2:30pm on 25 September 2016.

Was the Council Negligent?

  1. [65]
    Section 35 of the Civil Liability Act 2003 (“CLA”) provides as follows:

“35   Principles concerning resources, responsibilities etc. of public or other authorities

The following principles apply to a proceeding in deciding whether a public or other authority has a duty or has breached a duty—

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions;

(b) the general allocation of financial or other resources by the authority is not open to challenge;

(c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);

(d) the authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.”

  1. [66]
    The highway is a State-controlled road. The extent of the Council’s obligations to repair and maintain the highway was limited by the terms of the RMPC. The Council was the entity tasked with maintaining the highway on behalf of the State. I accept, as Mr Howe of counsel contended, that the Council’s obligations are limited and enshrined in the RMPC. It is the RMPC which dictates the rate of inspection, the time in which to respond to identified defects and the steps to be undertaken when performing such maintenance.
  1. [67]
    Under the RMPC, the Council had an obligation, among other things, to undertake maintenance once a defect had reached the upper intervention level.[71]  “Defect” is defined as “any deficiency in the condition of the road transport infrastructure”.[72] 
  1. [68]
    In the Council’s Quality Plan for the RMPC for the relevant financial year, the project objectives were stated to include:
  1. (a)
    “To maintain the State and Federal road network in our Regional Council Area to a safe standard for the travelling public;
  1. (b)
    To manage risk to Council, TMR and the public by fixing general intervention level defects and defects not at intervention level but deemed to be a safety hazard in a timely and efficient manner.”[73]
  1. [69]
    The intervention level for potholes was 50mm.[74]  Under the RMPC, the Council was indemnified by the State, except in circumstances which included it being negligent in carrying out any work.[75]
  1. [70]
    Brad Pfingst, the Technical Officer in charge of the RMPC, told Loss Adjustor Dave Sorrenson who was engaged by the Council:
  1. (a)
    that the pothole patching crew go through and fill any potholes that they find as they travel the highway, even before they reach the intervention level, as often in wet weather a very small pothole can turn into a particularly large one in a matter of hours;[76] and,
  1. (b)
    in their experience, whilst a pothole may be less than at intervention level, it will get worse and may exceed that intervention level if not filled beforehand, particularly in persistent wet weather.[77]
  1. [71]
    Mr Pfingst gave evidence of the Council having nearly spent its original allocation in September 2016 and that it was fully spent by October.[78]  The Council’s payment under the RMPC for the financial year 2016/17 was $2.1 million.[79]  However the high point of the evidence shows as at the end of September 2016, the Council had utilised 67% of their total pothole patching budget for that year.[80] 
  1. [72]
    Having regard to the RMPC documents, I find, subject to s. 37 of the CLA, that the Council owed a duty to Ms Tait, as a member of the public, to fix intervention level defects and defects deemed to be a safety hazard in a timely and efficient manner and to maintain the road network to a safe standard for the travelling public.[81] 
  1. [73]
    Section 37 of the CLA states:

“37 Restriction on liability of public or other authorities with functions of road authorities

(1) A public or other authority is not liable in any legal proceeding for any failure by the authority in relation to any function it has as a road authority—

(a) to repair a road or to keep a road in repair; or

(b) to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.

(2) Subsection (1) does not apply if at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(3) In this section—

road see the Transport Operations (Road Use Management) Act 1995, schedule 4.

road authority means the entity responsible for carrying out any road work.”

  1. [74]
    It is not unsurprising then that the primary case advanced at trial on behalf of Ms Tait was not so much an attack on the Council’s failure to repair or inspect the road. Rather the Council’s failure, it was asserted, was knowing of the deteriorating surface of the road at the location of the floodway and negligently placing the temporary signage.[82]  Thereby the Council, it was submitted, breached its duty by negligently carrying out its function under the RMPC.[83] 
  1. [75]
    The Council submitted that s. 37 of the CLA provided absolute protection.[84]  It argued that it did not have actual knowledge of the particular risk the materialisation of which is alleged to have caused Ms Tait’s injuries.  In other words, the Council did not have actual knowledge of the exact pothole which Ms Tait encountered with her motorcycle on Sunday 25 September 2016.[85]  However, in my view, this submission overlooks a number of salient matters.
  1. [76]
    I have already found that on the morning of 22 September 2016, the Council was aware there was pavement damage on the floodway and the sealed surface had begun to strip and potholes were beginning to develop on the roadway, in the area of the floodway. This is what prompted the Council to erect the temporary signage.
  1. [77]
    In relation to the issue of pavement damage, supervisor Mark Everingham stated:

“You agree that that deteriorating road, which I’ve – which you’ve agreed is a pothole, is directly in the line of traffic for those vehicles travelling southbound?Yes.

And did you see that when you visited on Thursday, the 22nd of September?Not sure.

If you’d seen it, I suggest you would have been concerned about it?No, because when they’re like that they’re not deep.

But it’s only going to get worse, isn’t it?Yes, once the water goes off it.

Yes.  And heavy vehicles start to travel through there, you agree?Once the water’s gone off it.

Well, would you agree that the weather conditions on Thursday, the 22nd of September were it was fine and sunny?Yes, I think so.

Water was beginning to recede?As far as I know, yes.

And vehicles – the roadway was open?Yes.

And heavy vehicles were allowed to traverse that section?Yep.

And they were only going to gouge it out further?Once the water got off it, yes.”[86]

  1. [78]
    In relation to the issue of pavement damage and potholes, the following passage occurred during the cross-examination of the Council’s district engineer Chris Smith:

“But they were only going to get worse, weren’t they?---Potholes are a – it – you’re not sure with potholes.

Well, they never get better, I suggest?---No.  well, they never get better.  Correct.  Yeah.

They either stay the same or they get worse?---Correct.

And they can get worse in a matter of hours, can’t they?---Potentially.

YesAnd they can get a lot worse if there’s heavy vehicular traffic going over them at a time when they’re wet or damp?---Potentially, yes.[87]

  1. [79]
    The exchange continued:

“Yes.  So – well, just have a look at, say, page 47, which is – it’s not marked, but it’s the one after 46, obviously.  So you see in the foreground in the centre of the photograph and also in the foreground – foreground to the right of the photograph, you can see pavement damage and potholes formed in the road surface.  Do you agree?Yes.  Yep.

You say that’s minor?Yes, that’s only minor.  That’s just a result of the bitumen lifting.

Yes.  In relation to – to those potholes, you’d agree that they would warrant rough surface reduce speed signs?Potentially, yes.

Yes?Anything to reduce the speed of traffic through there is   

Yes?    good.

Because particularly – once it dried up, particularly motorcyclists could come to grief even on that damage, couldn’t they?Potentially.”[88]

  1. [80]
    On 22 September 2016, Chris Smith and Ms Galvin attended the floodway. Photographs were taken. Chris Smith then contacted Mr Everingham. I consider the risk identified at that time was a risk of harm to road users (including motorcyclists) approaching the floodway from the deteriorating state of the road which was caused by water over the road. The response to the risk of harm was to put warning signs on the southern and northern approaches of the floodway, warning of a rough surface, and commanding road users to reduce speeds. The Council put temporary signage on the southern and northern approaches of the floodway. The signage was necessary to warn road users of a rough surface at the location of the floodway and to encourage them to reduce their speed.
  1. [81]
    Furthermore, given the conditions, it seems to me, that the rough surface at the floodway and other floodways along the highway was not a static situation. In this respect, I accept part of the Council’s submissions, namely, that the effect of heavy rainfall on the road network is an unknown quantity. The Council cannot predict whether one section of the road network will be adversely affected worse than another because the water comes down on the road at different locations and at different times.[89]  The amount of water which may pass over a floodway, and when and where this may occur, is equally unknown.[90]      
  1. [82]
    My view therefore is that the situation which presented itself was an evolving one. All of the Council officers acknowledged that. Whilst I accept the Council could not predict precisely where the potholes were going to emerge, I reject the assertion that the Council is not responsible for the accident at all because the potholes were at a different location to, and not the same as, the washout/pothole Ms Tait struck with her motorcycle.[91]   
  1. [83]
    The Council was not required to foresee the precise concatenation of circumstances which led to the accident. However, this case is an example of the Council’s misfeasance.[92]  The risk which the Council knew was foreseeable and it was not insignificant.  The Council was aware of the particular risk.[93]   The situation was not static, but rather an evolving one.  The Council knew the rough surface at the floodway could get worse.  On 22 September 2016, the potholes were assessed by the Council as constituting a hazard or danger to road users provoking the decision to place the temporary signage at the southern and northern approaches to the floodway.  The Council knew that the observed potholes would only deteriorate and grow bigger as the water receded and heavier traffic traversed the area.  Accordingly, the Council acted on the particular risk.  The precaution taken by the Council was to erect the temporary signage to warn road users of the rough surface of the floodway and to encourage them to reduce their speed ahead of the floodway.  Yet, the Council failed to adequately secure the temporary signage.  The Council should have weighed down the temporary signage with, for example, as was the usual practice, sandbags.  Whilst the use of sandbags to secure temporary signage may not have been compulsory at the time, the Council routinely used sandbags to secure the temporary signage to prevent them from falling over or being blown over.   The temporary signage needed to be weighted down or otherwise affixed so that it would not blow over.  
  1. [84]
    In this regard, Mr Chris Smith gave evidence that signs needed to be stabilised in both windy conditions and due to the effects of traffic wind buffeting. He said:

“But, Mr Smith, you were well aware that – that signs need to be stabilised due to the effects of – in both windy conditions and due to the effects of traffic wind buffeting, you’re well aware of that as at 2016;  correct?Yes.  Yep.

That’s not something new, is it?That signs need to be stabilised   

Yes?    because of wind buffering?  Yes.

And you’re an engineer, I take it?Correct.”[94]

  1. [85]
    Mr Everingham also conceded this issue. Under cross-examination, he stated:

“Okay.  And I take it that the purpose of the sandbags was to weigh the signage down?Yes.  Correct.

Because that’s – the signage can be blown over either in windy conditions – would you agree?It would have to be very windy to blow them over.

Yeah.  Or by heavy vehicles such as B-doubles and trailers who travel close to the signage?Yeah.  Maybe.

Yep.  And that’s why are you [weigh] them down?That’s why what?  You weigh them down

You don’t do it for fun?No.

There’s a purpose to it?Yeah, but it wasn’t compulsory then.  It is now.

I’m not saying it was compulsory, Mr Everingham?Mmm.

But the reason you did it was so that the signs wouldn’t be blown over;  correct?Yes.  Yes.

Because the sign is of no value as a warning device to approaching traffic if it’s lying flat, is it?No.

It’s only of value as a warning device if people can see it; correct?Correct.

And the reason you weigh it down is so that it won’t face the exposure to heavy vehicles with buffeting wind blowing it over;  correct?Correct.”[95]

  1. [86]
    Given the importance of the temporary signage to warn road users and the need to secure it, it seems to me there was an absence of any document evidencing a system to monitor the availability of such important equipment. This reflects poorly on the Council. Further, there is no evidence that any Council employee did a search of the store. There is no evidence given from anyone from the store that they had in fact run out of sandbags or similar alternatives. The end result however is that there were no sandbags available on the patching truck on Thursday 22 September 2016. As such, the Council did not give sufficient thought to searching for and sourcing sandbags for placement on the floodway. Although the sandbags were exhausted a few days prior to the accident, no further instructions were given to the Council staff with respect to securing the temporary signage.[96]  There were other options to stabilise the temporary signage.[97]  For instance, the Council could have affixed the sign to the permanent “Floodway” sign.
  1. [87]
    Having regard to the evidence of Ms Tait’s co-riders, it seems the temporary signage had blown over at some time prior to Ms Tait’s approach to the floodway. Although the temporary signage was in place when last observed by Messrs Brian Smith, Doughty and Lloyd on probably Saturday 24 September 2016, because it was unsecured and/or not weighed down, it blew over at some unknown time between Saturday 24 September 2016 and Ms Tait’s accident the following day.
  1. [88]
    In my view, once the Council erected the temporary signage, it was under an obligation to ensure the signage was properly secured. It failed to do so and thereby breached its duty to road users by failing to take measures reasonably open to it to secure the signs as a means of warning road users.
  1. [89]
    The Council advances the issue of obvious risk and relies upon ss. 13 and 15 of the CLA. It argues that it was under no duty to provide a further warning to what was clearly evident to a reasonable person in Ms Tait’s position.[98]  However, the Council attempted to warn road users (including motorcyclists) in the first place by initially placing the temporary signage on both approaches to the floodway.  The Council’s attempts to warn were nonetheless unsuccessful because the signage was not properly secured, at least on the southern approach.  Further in light of the evidence, I find the risk was not obvious.  Aside from perhaps some slight discolouration in the road surface as the group approached the floodway, they were not aware of the risk until they were virtually “on top of it”.[99]
  1. [90]
    For instance Ms Treahern’s evidence, which I accept, was that initially she thought it was just a bit of gravel. She thought it was a repair which had not yet been bitumened (which she said was not uncommon) and she could reduce speed and go across it.[100]  She was able to avoid the washout by travelling closer to the fog line on the remaining intact bitumen.  Once she was on that bitumen however, she was able to look down and see the depth of the hole and realised it was not a defect of discolouration, but rather very deep holes.[101]   She described it as a “trap for the unwary”.  Ms Death, whose evidence I also accept, said that she did not realise there was any sort of issue with the road in front of her until she was literally “on top of it”.[102]  Mr Bruin commented that “I don’t think any of us realised how bad it was until we were on it”.[103]  However, the Council’s culpability may have diminished, had the riding group approached the floodway from the northern end when they commenced their journey in the morning of 25 September 2016.     
  1. [91]
    Therefore I am of the view that ss. 13 and 15 of the CLA does not assist the Council.
  1. [92]
    All in all, based on the evidence given at trial, I have formed the view that had the temporary signage had been secured or weighed down, Ms Belinda Trehearn the lead rider, who in my view was an experienced rider, would have observed the warning sign and slowed her motorcycle accordingly. She would have actively braked.[104]  That would have caused Ms Death to slow down first, followed by the other riders in quick succession.  Ms Tait, who was following Ms Death, would have slowed down.  In those circumstances it is more probable than not that Ms Tait would have slowed her motorcycle, and would have been easily able to avoid riding through the washout.  Thus the accident would have been avoided.[105]  That is what occurred for the riders after Ms Tait, who were all riding further back and although not warned, were aware of the danger from what they observed in front of them.  They had notice of an issue at a time when a temporary sign would have given the lead riders the same notice.  Instead, because the Council did not secure the temporary signage, the lead riders were not put on notice to change their driving or riding conditions, which I am satisfied they would have done had they observed the temporary signage.  Had the temporary signage been visible, Ms Tait would have avoided her injuries by slowing down to avoid any contact with the washout/pothole or certainly contact at speed.[106]  

Was Ms Tait Contributorily Negligent? 

  1. [93]
    The onus of proof lies on the defendant to establish contributory negligence.
  1. [94]
    I respectfully adopt the observations of McMeekin J in Kelly v State of Queensland [2013] QSC 106 at [162] – [163], where his Honour stated:

“[162] Sections 23 and 24 of the CLA are relevant.  They provide:

23 Standard of care in relation to contributory negligence

(1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.

(2) For that purpose—

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

(b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.

24 Contributory negligence can defeat claim

In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.

[163] These legislative provisions have not affected the principles that apply generally.  They were explained in the joint judgment of Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in Podrebersek v Australian Iron & Steel Pty Ltd:

It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account.  The question was whether, in those circumstances and under those conditions, the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, or to negligence.

…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.  The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

  1. [95]
    The Council argued that an apportionment of 80 per cent for contributory negligence would be appropriate on the bases of Ms Tait’s admitted concessions in the evidence that her view was obstructed given the manner in which she operated her motorcycle and her unreasonable reliance on the provision of a warning from the lead rider in the group; rather than making her own assessment, as a prudent rider ought to have done, of the condition of the road.[107]
  1. [96]
    I am not persuaded by that submission for a number of reasons. The first is that the alternative to riding in a staggered configuration was to ride in a single file by “which [a motorcyclist] only see[s] beside [him/her] and the back of the bike in front of [him/her]”.[108]  Secondly, Ms Tait was riding within the speed limit.  She followed at a safe distance and I am satisfied that she kept a proper lookout.  Indeed the rider in front of Ms Tait, namely, Ms Death, did not swerve and rode through the washout (albeit somehow managing to stay on her bike).  It was unclear to me on Ms Death’s evidence as to when she actively applied her brakes.[109]  Therefore, there was no immediate warning of looming danger.  Further, as soon as Ms Tait saw Ms Trehearn “veer sharply to the left”, she reduced her speed, which was at the first possible opportunity.  Apart from noticing some discolouration, I accept that Ms Tait had no idea of what lay ahead and, in my view, could do nothing to avoid the washout in the circumstances.  I am therefore of the view that there should be no reduction for contributory negligence. 

What Damages are recoverable by Ms Tait?

  1. [97]
    Having considered the Council liable, I will now proceed to assess Ms Tait’s damages.

General Damages

  1. [98]
    It is not in dispute that the incident caused Ms Tait to suffer:
  1. (a)
    a compression fracture of the 11th and 12th thoracic vertebrae;
  1. (b)
    a fracture of the transverse process of the 2nd – 4th lumbar vertebrae;
  1. (c)
    a compression fracture of the vertebrae or body of the 1st lumbar vertebrae;
  1. (d)
    comminuted fractures of the 4th and 5th metatarsals of the left foot;
  1. (e)
    a minimally displaced fracture of the 3rd metatarsal of the left foot;
  1. (f)
    a lateral malleolus fracture of the left foot;
  1. (g)
    a posterior talus fracture of the left foot;
  1. (h)
    a navicular fracture of the left foot;
  1. (i)
    a cuboid impaction fracture of the left foot;
  1. (j)
    abrasions and bruising of the left hip;
  1. (k)
    abrasions on the right knee and left ankle;
  1. (l)
    bruising on dorsum of the left hand; and,
  1. (m)
    a haematoma of the left midfoot.
  1. [99]
    It is also not in dispute that following the accident, Ms Tait:
  1. (a)
    was transported to the Goondiwindi Hospital Emergency Department;
  1. (b)
    underwent radiological investigation (including CT scans);
  1. (c)
    was transferred to the Wesley Hospital on 27 September 2016; and,
  1. (d)
    underwent an operation on 27 September 2016 where the following procedures were performed:
  1. (i)
    T12-L1, L1-L2 decompression rhizolysis;
  1. (ii)
    T12-L3 intersegmental fixation;
  1. (iii)
    T12-L2 posterolateral graft; and,
  1. (iv)
    fraction reduction.
  1. [100]
    About three weeks after the accident, Ms Tait was discharged from the Wesley Hospital on 20 October 2016. She was required to wear a moonboot until December 2016. She returned to work in April 2017. She said she can no longer wear high heels and is forced to wear flat soled shoes. She experiences pain in her mid-back and foot. In order to seek temporary relief from the pain, she lies down during her lunchbreak on the days that she works, takes medication and attends physiotherapy every five to six weeks. She no longer rides her motorcycle and has been deprived of the opportunity to regularly attend outings for coffee, movies with friends and pursue her gardening.
  1. [101]
    A number of medical reports were tendered by consent. More particularly, a number of Orthopaedic Specialists measured Ms Tait’s whole person impairment under AMA5 methodology, namely:
  1. (a)
    in a report of 23 October 2017, Orthopaedic Surgeon, Dr Greg Gillett assessed Ms Tait as suffering a 22 per cent whole person impairment of the lumbar spine and a four per cent whole person impairment of the left foot;
  1. (b)
    in a report of 8 November 2017, Orthopaedic Surgeon, Dr John Fraser assessed Ms Tait as having a three per cent whole person impairment of the left foot; and,
  1. (c)
    in a report dated 8 November 2017, Orthopaedic Surgeon, Dr John Tuffley assessed Ms Tait’s injury to the lumbar spine as a 23 per cent whole person impairment.
  1. [102]
    In a supplementary file note, Dr Gillett did not disagree with the whole person impairment assessments of Doctors Tuffley and Fraser.[110]
  1. [103]
    In addition, Occupational Physician Dr Marcus Navin was called at trial. Dr Navin concluded that a 23 per cent whole person impairment applied to the lumbar spine and an eight per cent whole person impairment applied to the left foot. Whilst his opinion of the whole person impairment of the lumbar spine is comparable to that of the Orthopaedic Surgeons, it is different to the assessments given by Doctors Gillett and Fraser with respect to the left foot.
  1. [104]
    It is common ground between the parties, and properly so, that Ms Tait’s dominant injury falls to be assessed as a serious thoracic or lumbar spine injury (Item 91 of the Civil Liability Regulation 2014).  This Item provides an ISV range between 16 and 35 points. 
  1. [105]
    Having regard to the commentary within the Civil Liability Regulation, I allow 32 points.  I am also inclined to allow an uplift of 25 per cent in light of Ms Tait’s left foot injury, which I assess as a moderate foot injury (Item 149 of the Civil Liability Regulation) because the injury cannot be reflected with the maximum ISV for the dominant injury given Ms Tait’s ongoing pain and restrictions.  That ultimately yields an ISV of 40 points.  Therefore, applying Schedule 7, Tab 7 of the Civil Liability Regulation, Ms Tait’s general damages are assessed at $97,500.00.

Past Economic Loss

  1. [106]
    The parties have agreed on a figure of $21,000.00 (inclusive of interest and superannuation loss).

Future Economic Loss

  1. [107]
    Under s 55(2) of the CLA, the court may only award damages in the event that it is satisfied that the person has suffered, or will suffer, loss having regard to their age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. In the current matter, this involves a consideration of whether Ms Tait has demonstrated, on the balance of probabilities, that her earning capacity has been diminished by reason of the accident–caused injuries and, if so, whether that diminution in earning capacity is or may be productive of financial loss.[111]  It remains with Ms Tait to show that her earning capacity has been diminished by the accident–caused injury and “that diminution is or may be productive of financial loss”.[112]
  1. [108]
    Ms Tait is 61. Notionally she has a further six years before normal statutory retirement age. Following the accident in September 2016, Ms Tait returned to her role as Practice Nurse at the Goondiwindi Medical Centre in January 2017. She works 9½ hours a day, Monday to Thursday.[113]  Ms Tait’s current net weekly pay is $969.00.[114] 
  1. [109]
    It is common ground between the experts that Ms Tait has returned to her normal duties. Dr Tuffley remarked that Ms Tait’s return was considered to have been more rapid than would have been the case with many persons suffering the same injury, suggestive that Ms Tait is well motivated. Dr Fraser’s view is that Ms Tait will be able to continue to work as an enrolled nurse until normal retirement age. He commented that she did not appear to be exaggerating or maximising her injuries for the purposes of the examination. Dr Gillett’s view was that Ms Tait will be able to work in her current role in a general practice situation with a sympathetic employer as long as she is able to obtain assistance when required with heavier tasks. Dr Navin observed that Ms Tait has returned to her normal working life and routine, but is affected by pain, requiring the taking of breaks several times a day. He remarked:

“I also offer that Ms Tait is somewhat concerned at her capacity to meet the increased demands of the medical practice as it expands significantly in the number of doctors within the practice.  She expressed concern at her capacity to meet the increased demands from the additional Practitioners”.[115]

  1. [110]
    Ms Tait stands at work all day. She twists and turns a lot. She has to set up for procedures. She cleans instruments, assists doctors with procedures and helps patients on and off treatment beds.[116]  Ms Tait’s symptoms become aggravated because of her work duties and, during her lunchbreak, she will drive to her house and lie down for 30 minutes, before returning to work for the afternoon.  The Goondiwindi Medical Practice has, according to Ms Tait, “gotten busier and busier” despite a static number of doctors being employed over the last couple of years.[117]  Ms Tait plans to assess her retirement age at the end of the year to see how much “longer [she] can last”.[118] 
  1. [111]
    All in all, I am satisfied that Ms Tait’s earning capacity has been diminished by reason of the accident-caused injuries and that such diminution may be productive of financial loss.
  1. [112]
    In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, the High Court held that it was an error to conclude, on the balance of probabilities, whether the future event would have happened by the relevant date with a consequence that loss of earning capacity for a period after that date did not occur.[119]   Rather, the future hypothetical event was to be approached according to the possibilities with the plaintiff entitled to the relevant proportionate amount of the prospect that loss of earning capacity would continue after the relevant date, into the future, and until the end of the plaintiff’s expected working life.
  1. [113]
    It was submitted on behalf of Ms Tait that an amount of not less than $120,000.00 is an appropriate figure for future economic loss on the basis that the prospects of her remaining in fulltime employment beyond January 2020 were no more than 50 per cent.  I am not as pessimistic about that prospect.  Whilst I accept the issue to be determined is Ms Tait’s prospects of an early retirement at some time before 15 July 2025 (i.e. her 67th birthday), I place such a prospect at around 25 per cent because Ms Tait impressed upon me as being stoic and well-motivated to return back to work in a large medical practice rather quickly and able to self-manage within her physical capabilities despite the demands of her job. 
  1. [114]
    Therefore adopting the methodology submitted by Mr Lynch, but allowing a 25 per cent prospect of early retirement, future economic loss will be assessed at $60,000.00.[120]

Future Superannuation Loss

  1. [115]
    In light of s. 19(2) of the Superannuation Guarantee (Administration) Amendment Act 2012, the average rate of compulsory employer funded superannuation is 10½ per cent.  Therefore based on the future economic loss award, Ms Tait is entitled to $6,300.00 for future superannuation loss.

Future Medical Expenses

  1. [116]
    Ms Tait maintains a claim for medication and physiotherapy for the balance of her anticipated life expectancy (27½ years) (multiplier 790).
  1. [117]
    Whilst I consider it is reasonable to claim the cost of medication, more specifically Panadol Osteo, I consider physiotherapy ought to be required solely in order to manage Ms Tait’s symptoms aggravated by her work duties.
  1. [118]
    As a consequence, I will allow the amount of $8,090.35 based on:
  1. (a)
    $4.91 per week over the balance of Ms Tait’ anticipated life expectancy (27½ years) (multiplier 790), yielding $3,879.00[121];
  1. (b)
    $15.54 per week over the balance of the plaintiff’s normal working life (six years) (multiplier 271), yielding $4,211.35.[122]

Future Paid Care

  1. [119]
    Ms Tait seeks an amount of approximately $13,000.00 for future paid care.
  1. [120]
    The Council accepts that in some cases a plaintiff might otherwise establish that he or she will have a need for the provision of future paid care, despite the statutory threshold in s 59 of the CLA not being met. It is submitted that a figure of no more than $2,500.00 for future paid care is appropriate.
  1. [121]
    Occupational Therapist Gordon Siebel assessed Ms Tait on 24 October 2017. Mr Siebel explained that Ms Tait is a motivated lady who wishes to be independent. In his view, Ms Tait has been independent with respect to most tasks since 22 April 2017, however, the areas where she requires assistance are with respect to vacuuming, mopping and scrubbing of lower areas of the home and laundry. In addition, he considered Ms Tait requires assistance with gardening tasks, with such tasks extending to whipper snipping and trimming of garden hedges. In his view, the extra assistance will be beneficial because it will assist Ms Tait to remain in her current employment.
  1. [122]
    It seems to me that the weight of the evidence is that whilst Ms Tait is able to perform light to medium type domestic duties, she will require assistance with heavy domestic tasks into the future. I also consider it appropriate that Ms Tait will require assistance with house cleaning in order to support her whilst she maintains ongoing employment.[123]  In this regard, Ms Tait gave evidence that house cleaning aggravated her symptoms and that if she could afford to, she would engage a paid cleaner.  She said the cost in Goondiwindi is $32 per hour and she estimated that the task would take a couple of hours per week.[124] 
  1. [123]
    I will allow one hour per week for cleaning whilst Ms Tait is in employment. Therefore, given Ms Tait has six years to putative retirement at age 67, a gross figure of $8,672.00 is derived (based on $32 per week by multiplier 271). Adopting the same Malec discount as applied for future economic loss (25 per cent), I assess the need for a cleaner at $2,168.00. 
  1. [124]
    In addition, allowing for the need of one hour per month for gardening, at $32 per hour ($8 per week), from age 67 to putative life expectancy (22 years, deferred for six years), an amount of $4,200.00 is reached.[125]
  1. [125]
    Therefore I award the total amount for future paid care as $6,368.00.

Agreed Damages

  1. [126]
    The parties have agreed to the following amounts:
  1. (a)
    $6,650.55 – Refund to Goondiwindi Hospital;
  1. (b)
    $11,838.15 – Refund to Medicare;
  1. (c)
    $59,882.35 – Refund to BUPA;
  1. (d)
    $3,272.80 – Travel expenses;
  1. (e)
    $2,459.08 – Out of pocket expenses;
  1. (f)
    $20,246.83 – Medical gap expenses.
  1. [127]
    In addition it is agreed by the parties that the 10 year bond rate for the most recent quarter is 1.36 per cent.
  1. [128]
    Interest is required on travel expenses, out of pocket expenses and medical gap expenses. Over say 1½ years, I calculate that to be $530.00.

Conclusion

  1. [129]
    I therefore give judgment to Ms Tait for the following amounts:

General Damages

$97,500.00

Past Economic Loss (inclusive of superannuation and interest)

$21,000.00

Future Economic Loss

$60,000.00

Future Loss of Superannuation

$6,300.00

Future Medical and Other Out of Pockets

$8,090.35

Future Paid Assistance

$6,368.00

Damages otherwise agreed by the parties

$104,349.76

Interest on Past Specials

$530.00

TOTAL

$304,138.11

  1. [130]
    I will hear the parties as to costs.

Footnotes

[1]See defendant’s written submissions at [2]. 

[2]See exhibit 23 at [3.1.3].

[3]See exhibit 23 at [3.1.4].

[4]See exhibit 30.

[5]T3-79, ll 38 – 39. 

[6]T3-83, ll 9-10.

[7]T3-83, ll 12-20.

[8]T3-83, ll 22-24.

[9]T3-81, ll 24 – 25. 

[10]See amended statement of claim at [6], admitted in further amended defence at [6].  See also exhibit 6, tab 9. 

[11]T3-61, ll 15 – 18.

[12]See paragraph 8 of the amended statement of claim at 8, admitted in further amended defence at [7(a)], [7(b)] and [7(d)].  See also exhibit 2, pages 43 – 48. 

[13]T3-61, ll 41 – 46. 

[14]See amended statement of claim at [7], admitted in further amended defence at [6].  See also exhibit 6, tab 10.

[15]See exhibit 6, tab 10.  

[16]T3-62, ll 1 – 10.

[17]T3-67, ll 15 – 18. 

[18]See amended statement of claim at [12(a)] – [12(e)], admitted in further amended defence at [11(a)] – [11(c)].

[19]See amended statement of claim at [9], admitted in further amended defence at [8].

[20]T3-74, ll 35-36.

[21]See exhibit 22.

[22]Ibid.

[23]Mr Everingham said that the Council’s supply of sandbags was “exhausted” by Wednesday 21 September 2-16: T3-33, l 26.

[24]See exhibit 22.

[25]T2-31, ll 17 – 21.

[26]See exhibit 25; T3-58, ll 19-36.

[27]T3-50, ll 1-3.

[28]T3-50, l 45 and T3-52, l 41 – T3-53, l 5.

[29]T3-54, ll 16 – 18. 

[30]T2-49, ll 9 – 13. 

[31]T2-47, l 27.

[32](Incorporating potholes): T2-49, ll 18 – 33.  

[33]T2-46, ll 11 – 26.

[34]T1-18, ll 1 – 5. 

[35]T1-18, ll 7 – 9.

[36]T1-18, l 11.

[37]T1-18, ll 28 – 35.

[38]See for instance T1-18 and T1-19. 

[39]T1-19, ll 31 – 44. 

[40]T1-20, ll 1 – 25. 

[41]T1-20, ll 27 – 31. 

[42]T1-20, ll 39 – 42. 

[43]T1-20, l 44 – T1-21, l 14.

[44]T1-21, l 24.

[45]See exhibits 3 and 4 depicted the pothole/washout. 

[46]T1-36, ll 18 – 20. 

[47]T1-38, ll 1 – 7.

[48]T1-40, ll 41 – 47.

[49]T1-52, ll 10 – 11.

[50]T1-51, ll 33 – 39 and T1-52, ll 17 – 18.

[51]T1-52, ll 20 – 26.

[52]T1-52, ll 31 – 35.

[53]T1-53, ll 4 – 7.

[54]T1-53, ll 13 – 15.

[55]T1-53, ll 16 – 34.

[56]T1-57, ll 15 – 28.

[57]T1-65, l 25.

[58]T1-66, l 40 – T1-67, l 6.

[59]T1-69.

[60]T1-7, ll 25 – 26.

[61]T1-73, ll 28 – 29.

[62]T1-73, ll 31 – 44.

[63]T1-73, l 46.

[64]T1-74, ll 5 – 47.

[65]T1-75.  See also exhibits 4 and 21. 

[66]T1-76.

[67]T1-77, ll 10 and 11.

[68]T1-77, ll 24 – 29. 

[69]T1-86, ll 11 – 19.

[70]T1-86, l 44 – T1-87, l 2.

[71]See exhibit 2, p 16 at [2.9.1]. 

[72]See exhibit 2, p 9.

[73]See exhibit 6, tab 28, p 3.

[74]T3-87, ll 6 – 13.

[75]See exhibit 2, pp 19 – 20 at [3.3].

[76]T3–25, ll 33 – 35.

[77]T3–25, ll 38 – 41. 

[78]T3-87, ll 34 – 39.

[79]See exhibit 6, tab 18.

[80]See exhibit 6, tab 32.

[81]See generally exhibit 2, pp 9, 16, 19 and 2; exhibit 6, tabs 18 and 28; and, T3-87, ll 6 – 13.

[82]See plaintiff’s written submissions at [90].  See also reply to amended further defence at 6(c), 6(d), 9, 10 and 12. 

[83]See plaintiff’s written submissions at [90].

[84]See defendant’s written submissions at [88(ii)].

[85]See defendant’s written submissions at [10] and [97] – [109]. 

[86]T3-40, ll 5 – 29. 

[87]T3-67, ll 25 – 36.  There was other evidence of potholes getting worse from Tim Lloyd (T2-49).  See also evidence of Dave Sorrenson (T3-25). 

[88]T3-67, l 38 – T3-68, l 9.

[89]See defendant’s written submissions at [13]. 

[90]See defendant’s written submissions at [14]. 

[91]See defendant’s written submissions at [23] – [31], [36] – [44].

[92]Cf., nonfeasance. 

[93]Cf., North Sydney Council v Roman [2007] NSWCA 27 and Botany Bay City Council v Latham [2013] NSWCA 363.

[94]T3-72, ll 23 – 31.  See also earlier in his evidence, at T3-68, ll 37 – 41, where Mr Smith said that the temporary signs were “sturdy” and “we just add sandbags on as a precaution”.  Also cf., defendant’s written submissions at [88(vi)].

[95]T3-36, l 35 – T3-37, l 16.  Also cf., defendant’s written submissions at [88(vi)].

[96]T3-68, ll 36 – 46.  See also T3-42. 

[97]See for example T3-73, ll 13 – 31.  See also T3-42.  Also cf., defendant’s written submissions at [88(vii)]. 

[98]See defendant’s written submissions at [88(iii) – (iv)] and also [88(xi)]. 

[99]Cf., See defendant’s written submissions at [56], [58] – [63] and [64] – [67].

[100]T1-52, ll 31 – 35.

[101]T1.53, ll 4 – 7.

[102]T1-73, l 46.  Cf., Collins v Clarence Valley Council [2015] NSWCA 263.

[103]T1-86, l 41.

[104]T1-56, l 34 – T1-57, l 24.

[105]See Kelly v State of Queensland [2013] QSC 106 at [147] and [151] (and also Kelly v State of Queensland [2014] QCA 27 at [24] – [25]); Strong v Woolworths & Anor (2012) 246 CLR 182 at [20] and [32]; Pettigrew v Wentworth Shire Council [2012] NSWSC 624 at [113] – [117], [132] and [155]; Curtis v Harden Shire Council [2014] NSWCA 314 at [179] – [187] and [193]. 

[106]Ibid.  Cf., defendant’s written submissions at [88(viii)], [88(x)] and [88(xi)]. 

[107]See also defendant’s written submissions at [57].

[108]T1-48, l 25.  See also T1-66, ll 40 – 45 and T1-40.

[109]T1-81, ll 25 – 47. 

[110]See exhibit 11.

[111]See generally Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 at [47] – [51] per White JA.

[112]See Nucifora & Anor v AAI Limited [2013] QSC 338 at [30].

[113]Ms Tait also did some casual retail work in a boutique/homewares store (see T1-15, l 37 to T1-16, l 11).  She had done this since 2000.  It seems to me the income she derived from that though was no more than $1,000 each financial year: see exhibit 14. 

[114]T1-31, ll 28-29.

[115]See exhibit 10, page 10 [49].

[116]See for example T1-30, ll 18-27.

[117]T1-30, ll 36-39.

[118]T1-30, ll 35-36.

[119]As applied by Jackson J in Rodger v Johnson [2013] QSC 117 at [14].

[120]Multiplier 251 x $969, reduced by 75 per cent.  See [111] of the plaintiff’s written submissions. 

[121]Ms Tait’s evidence was that she spent $7 on a packet of Panadol Osteo which contains 20 tablets in a packet.  She takes two tablets each morning.  A packet therefore lasts her 10 days.  She is therefore spending approximately $255.50 per year on Panadol Osteo, producing a weekly figure of $4.91 per week.

[122]Ms Tait gave evidence that she has physiotherapy every five to six weeks at a cost of $85 to $86 per week (T1-28, ll 16 - 18).  If one assumes a cost of $85.50 every 5½ weeks, this converts to approximately $808 per year, or $15.54 per week. 

[123]See cross-examination of Mr Seibel. 

[124]T1-30, ll 1 – 42.

[125]That is $8 per week x 704 multiplier x 0.746.  I note Ms Tait engaged a gardener at a cost of $40 per hour on 22 May 2017 prior to moving into her current dwelling.  (Exhibit 20).

Close

Editorial Notes

  • Published Case Name:

    Tait v Goondiwindi Regional Council

  • Shortened Case Name:

    Tait v Goondiwindi Regional Council

  • MNC:

    [2019] QDC 208

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    31 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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