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Goondiwindi Regional Council v Tait

 

[2020] QCA 119

SUPREME COURT OF QUEENSLAND

CITATION:

Goondiwindi Regional Council v Tait [2020] QCA 119

PARTIES:

GOONDIWINDI REGIONAL COUNCIL

ABN 79 969 846 487

(appellant)

v

PAULA DEANNE TAIT

(respondent)

FILE NO/S:

Appeal No 13250 of 2019

DC No 1665 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2019] QDC 208 (Jarro DCJ)

DELIVERED ON:

5 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2020

JUDGES:

Morrison and McMurdo JJA and Burns J

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – where the respondent was riding her motorcycle through a floodway and struck a large pothole – where the respondent sued the appellant for damages as a result of the injuries she sustained – where the appellant had responsibility for maintaining that section of road as part of its contractual arrangement with the State of Queensland, under a Road Maintenance Performance Contract (RMPC) – whether taking steps to warn motorists was part of or the commencement of the appellant’s performance of its maintenance obligations

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – CIVIL LIABILITY LEGISLATION – GENERALLY – where there was considerable rainfall which brought widespread flooding, including to the floodway – where the appellant’s maintenance crew identified that there was a danger to traffic because of the rough surface of the floodway and the likelihood of potholes – whether the appellant had actual knowledge of the particular risk – whether the particular risk was the particular pothole that the respondent hit

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – where members of the appellant’s patching crew erected freestanding signs on both approaches to the floodway – where the signs were not secured – where the signage had fallen over at the time of the respondent’s accident – whether the respondent would have been able to avoid the pothole had the temporary signage been up

Civil Liability Act 2003 (Qld), s 35, s 37

Botany Bay City Council v Latham (2013) 197 LGERA 211; [2013] NSWCA 363, distinguished

Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29, applied

Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263, distinguished

North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27, distinguished

COUNSEL:

K N Wilson QC for the appellant

S C Holt QC, with R J Lynch, for the respondent

SOLICITORS:

King & Company Solicitors for the appellant

Shine Lawyers for the respondent

  1. [1]
    MORRISON JA:  On Sunday 25 September 2016 Ms Tait was riding her motorcycle with a group of fellow bike riders, in a southerly direction on the Leichhardt Highway, through the Mittengang Creek Floodway.  The floodway was located at Billa Billa, on the Leichhardt Highway, about 47 kilometres north of Goondiwindi.  She struck a large pothole and sustained injuries when she fell.
  2. [2]
    Ms Tait sued the Goondiwindi Regional Council for damages as a result of the injuries she sustained.  The Council is the local government authority with control over roads in its district, including that part of the highway where the floodway was situated.  The Council had responsibility for maintaining that section of road as part of its contractual arrangement with the State of Queensland, under a contract known as a Road Maintenance Performance Contract (RMPC).
  3. [3]
    The relevant section of the highway was a two-lane undivided bitumen sealed road, where the prevailing speed limit was 100 kilometres per hour.  Because it was a floodway certain signs and markers were in place.  Depth markers and “Floodway” signs, with temporary flaps stating “Water Over Road”, were installed on both approaches to the floodway.

Events leading up to 25 September 2016

  1. [4]
    To a substantial degree there was no controversy about the facts leading up to 25 September 2016.  What follows is largely drawn from the reasons of the learned trial judge.[1]
  2. [5]
    Between 13 and 20 September 2016 there was considerable rainfall which brought widespread flooding, including to the area of the floodway.  Mr Bartels was part of the Council’s road maintenance patching crew.  He drove through the floodway on Monday 19 September.  The water was over the floodway at a depth of about 0.3 metres.
  3. [6]
    The next day Mr Bartels drove through the floodway again, noting that the water had dropped to 0.1 metres.  Four hours later he drove through the floodway once more, noting that it had reduced to surface water.  Mr Bartels’ evidence was that he appreciated that with any rain event “there’s always potholes on the road”.
  4. [7]
    On 21 September the Council’s technical officer, Ms Galvin, notified various Council employees that there was water over the highway at several locations near Billa Billa, and there were significant potholes in various locations on the highway.
  5. [8]
    On 22 September Ms Galvin and the Council’s engineer, Mr Chris Smith, drove along the highway at the floodway.  Mr Smith said a number of photographs were taken which revealed: the weather was fine; the sealed surface of the roadway had begun to strip; and potholes were beginning to develop on the roadway.  Mr Smith noticed that the signs on both approaches to the floodway were showing “Water Over Road”.
  6. [9]
    About two hours later Ms Galvin sent an email to a number of Council employees notifying them that the highway was open, low-depth water was present over the highway in various locations between Mittengang Creek and Mount Carmel Road, and that there was pavement damage on the floodway.  The email included the sentence, “Some pavement damage through floodways – travel to conditions”.  The pavement is that part of the roadway below the bitumen.
  7. [10]
    Later that day, Mr Smith made contact with the supervisor of the Council’s patching crew, Mr Everingham.  He advised Mr Everingham that an inspection and potential signage might be required.  His evidence of what he said to Mr Everingham was:

“I said … it need to be inspected.  There’s water over the road, … 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.”

  1. [11]
    Mr Smith’s reference to “signage” was to the Council’s temporary signage, which stated “ROUGH SURFACE” in black letters against a yellow background, and “REDUCE SPEED” in white letters against a red background.
  2. [12]
    Following that conversation, members of the Council’s patching crew[2] went to the floodway on 22 September, and erected freestanding signs on both approaches to the floodway.  Those signs stated “ROUGH SURFACE” and “REDUCE SPEED”, and were erected on the grass verge a short distance away from the edge of the carriageway.  One faced traffic approaching the floodway in each direction.  The signs were not secured by sandbags (the usual way in which such temporary signage was secured) or an equivalent form of ballast.
  3. [13]
    Mr Doughty[3] visited the floodway on three occasions before Ms Tait’s accident.  He made observations which were recorded in a handwritten file note.  On 22 September he recorded that the floodway 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”.  He noted that sandbags were not attached to the legs of the signs because the crew did not have any.  On 24 September Mr Doughty went through the floodway with Mr Tim Lloyd,[4] and Mr Brian Smith[5] (who was part of the Council’s patching crew).  Mr Doughty considered that “the floodway needed patching with premix as it looked dangerous to road users”.  He noted that between 22 and 24 September the water receded.
  4. [14]
    Mr Brian Smith attended the floodway twice on 24 September, with Mr Doughty and Mr Lloyd.  He noticed a pothole slightly west of the centre line when the truck wheel hit it.[6]  He described the hole as being around 30-40 millimetres deep.  He gave evidence that the temporary signage had been erected on both approaches to the floodway, but not secured by sandbags because it was a busy rain event and “there was a lot of other sandbags probably out around the place”.  His evidence was that if sandbags had been available he would have used them, and the purpose of the temporary signage was to forewarn motorists of the area ahead, though not to warn of any particular pothole but rather to warn motorists that the area had a “generally rough surface”.
  5. [15]
    Mr Brian Smith said there was a discussion with Mr Doughty and Mr Lloyd about the pothole, “it was mainly that – so that one there that we mainly discussed”.[7]  They discussed whether patching maintenance work could be done on the pothole, but agreed it was not possible to start maintenance work on that day because of the water.  As Mr Brian Smith said:[8]

“We come back through and I noticed there was still water in the floodway. I had seven mil stone on and the seven mil stone would have done nothing to fix the holes. Then there was discussion between myself, Tim Lloyd and Brendan Doughty, and there was also discussion about maybe using premix, going back to town and getting premix. And premix would have done nothing because of the water, and the signs were visible, the signs were in place, and it was a minor hole, and that's when we continued on with what we’d done.”

and:[9]

Yeah, the conversation was Brendan said to me, "Do you think that we should contact our supervisor?" Which I didn’t. And then said, "Well, do you think we should go back and get some premix, fill it in?" I seen it is - as a minor defect in the road, and there was water over the road, premix wouldn’t have worked, the signs were in place. And then the discussion was ended there.”

  1. [16]
    Mr Lloyd attended the floodway twice on 24 September.  On the second time the water had receded, and he described it as a “trickle”.  He said he could see from the ripples on the water, and feel from the truck’s wheels, that there were a couple of football sized potholes.[10]  His evidence was that the purpose of the temporary signage was to warn motorists about changed traffic conditions, including a rough surface, which includes potholes.  He agreed that potholes were dangerous to road users, and with traffic, especially large vehicular traffic, the potholes were only going to get worse.[11]

Facts concerning Ms Tait’s riding

  1. [17]
    On the date of the accident Ms Tait was riding with a group of others.  Apart from a brief shower at the start of their ride, the weather was sunny and fine.  The group had ridden along the Gore Highway to Dalby via Millmerran, then to Moonie, and were returning via the Leichhardt Highway to Goondiwindi.  During the journey Ms Tait did not see water across the highways but observed “lots of floodway signs”.  There had been a lot of temporary signs describing “rough surface” and “slow down”.  Her evidence was that when she saw such signs, she slowed down.
  2. [18]
    The group rode in a staggered configuration.  In that formation the lead rider, Ms Trehearn, was positioned closest to the left side, towards the fog line.  Ms Trehearn’s mother, Ms Death, was two to three car lengths back, closer to the right hand side of the lane.  Ms Tait was a further two to three car lengths back, behind Ms Death and near the middle of the lane.
  3. [19]
    Prior to the accident the group were travelling at about 80 km/hr.
  4. [20]
    Ms Tait noticed the permanent “Floodway” sign prior to the actual floodway, but no other signage.  As it transpired, the temporary signage had fallen over.
  5. [21]
    Ms Tait noticed Ms Trehearn veer sharply to the left and at that point she saw what she described as “discolouration” on the highway.  She then saw that Ms Death’s bike was off the ground and Ms Death had been thrown into the air, hitting her own windscreen.
  6. [22]
    By then Ms Tait was in dry gravel in the pothole area, and realised she was in trouble.  She tried to veer left to get away from Ms Death because she thought that bike was going to flip.  Then Ms Tait was catapulted as a result of hitting the deepest part of the pothole.
  7. [23]
    It was not in dispute that the pothole at that time was 20 centimetres deep, 30 centimetres wide and one metre long.
  8. [24]
    Ms Tait explained that the group rode in a staggered formation, and as a consequence her vision was obstructed “to a certain extent”.  The group had passed flooding and potential damage to the roads including potholes, and on such occasions the lead rider (Ms Trehearn) would slow down and the remaining group members would follow.  According to Ms Tait, they rode to the conditions of the roadway, including slowing down when the surface was rough.
  9. [25]
    Ms Trehearn’s evidence was that Ms Tait was a very sound, cautious and careful rider.  She described the way the group operated in a staggered format, and as lead rider, she decreased her speed when she observed signs that indicated changed traffic conditions.  She said she was travelling about a metre off the fog line, and at 100 km/hr when she first noticed discolouration on the road.  As she got closer she saw there was a defect and reduced her speed to 80 km/hr.  Her initial thought was that it was a repair which had not been finished with bitumen.  She was able to avoid the washout by travelling closer to the fog line on the remaining intact bitumen.  As she got close enough she could see the depth of the hole and realised it was a very deep hole which was going to cause a problem.
  10. [26]
    Ms Trehearn could see her mother’s motorcycle in trouble and as she did a quick turn to go back, she saw Ms Tait’s bike going end to end, and Ms Tait coming off.  As they waited for an ambulance to arrive, Ms Trehearn saw a man in a car pull over on the side of the road and stand up a sign which he then tried to keep upright.
  11. [27]
    Ms Trehearn’s evidence was that if she had seen a sign indicating rough surface or reduced speed she would have braked and would have done so much more quickly than she did.  Her best estimate was that her speed at the time she reached the pothole was about 60 km/hr, or lower.
  12. [28]
    Other riders gave similar evidence.  All of them gave evidence that the Council’s temporary signage was not standing up at the time.
  13. [29]
    The learned trial judge made a number of findings based on his assessment of the evidence, and acceptance of the evidence of Ms Tait and other riders.  It is convenient to replicate paragraph [64] of the reasons below, where those findings are expressed:

[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 [sic] 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.

(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.

(l) On 25 September 2016, immediately prior to the washout, Ms Tait was travelling at 80km/hr.

(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.

(n) After the accident, a motorist travelling northbound on the highway stopped, got out of his vehicle and stood up a rectangular sign.

(o) The rectangular sign was the temporary signage.

(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.”

The Council’s control of the roadway

  1. [30]
    There is no dispute that the highway involved was a State controlled road.  The Council is a local government authority with control over a network of somewhere between 600 and 800 kilometres of sealed local roads, and 1400 kilometres of gravel roads.  The Council maintained 800 kilometres of roads on behalf of the State of Queensland under the RMPC.
  2. [31]
    The floodway in question is located on part of the highway maintained by the Council under the RMPC.
  3. [32]
    The RMPC is a document in a number of parts, and outlines the relationship between the Council and the State, and maintenance obligations.  One of the key maintenance strategies identified is to “[m]aintain a safe road environment for road users”.[12]  The Council is designated as the “Contractor” under the RMPC, performing the role of “Network steward”.[13]  Clause 2.5.1 provides that “the Contractor, as the department’s local representative, must act professionally in the department’s interest and must ensure … that Maintenance concerns are addressed at Contractor level and only referred to the department when necessary … [and] that the Network is in a safe condition for Road users”.  The “Network” is defined to comprise the roads included in the RMPC.
  4. [33]
    There are a number of defined terms in the RMPC documents which relevantly include the following:
    1. (a)
      a “Defect” is defined as “Any deficiency in the condition of the road transport infrastructure;
    2. (b)
      “Agreed Intervention Level” means “The agreed magnitude of a Defect that requires rectification action by the Contractor, they are the Upper Intervention Levels and any changes recorded in the Intervention Level and Response Time Schedule”;
    3. (c)
      the various Intervention Levels are those set out in the guidelines to the RMPC;
    4. (d)
      the “Initial Intervention Level” is defined as “The magnitude of a Defect as set out in the Guidelines that should be used by the Contractor for recording Defects into the Forward List of Works to assist in Work planning”; and
    5. (e)
      the Upper Intervention Level is defined as “The magnitude of a Defect as set out in the Guidelines indicating the need for rectification action”.
  5. [34]
    The RMPC contains detailed specifications about the procedures to be adopted, and includes Clause 2.7.2 which provides for the identification of maintenance in advance:[14]

“Outstanding Maintenance needs, including location, should be identified before Defects have reached the Upper Intervention Level.  The Contractor may record details of Maintenance Work into the ‘backlog’ once the Defect Initial Intervention Level is reached, to assist in Work planning.”

  1. [35]
    The RMPC defines “Maintenance” as meaning “All activities, as indicated in this Manual and the Guidelines, to rectify Defects”.[15]
  2. [36]
    Clause 2.9.1 deals with Intervention Levels and Response Times.  It provides:[16]

“Maintenance is to be undertaken once a Defect has reached the Upper Intervention Level.  There may be instances outside the norm where, in some locations on the Network, Maintenance should be undertaken for obvious safety reasons before the Upper Intervention Level is reached.”

  1. [37]
    The RMPC General Conditions document[17] contains definitions in similar terms.  The objectives of the RMPC are set out in Clause 2.3,[18] and include that the State’s objectives are to “ensure the Road Network is safe and serviceable and remains safe and serviceable to users while the Work under the Contract is being carried out”.
  2. [38]
    The Council’s obligation as the Contractor is described as “Network stewardship” in Clause 3.1.[19]  Stewardship includes “dealing with Maintenance concerns at a local level”.[20]  In order to achieve proper performance of its role, the Council is obliged to “undertake all necessary inspections to identify Defects in the Road Infrastructure”.[21]
  3. [39]
    The RMPC recognises that the Council, as Contractor, has possession of the “Site” which is defined to mean the road network.[22]  The Council, as Contractor, “acknowledges and accepts that public use … of the Site will continue during performance of the Contract”.[23]
  4. [40]
    Clauses 9.3 and 9.4 make provision in respect of the protection of people and property, and safety.  As Contractor, the Council’s responsibility is to “provide all things and take all measures necessary to protect people and property using or on the Site”.  The Council’s safety obligation includes an obligation to “ensure the health and safety of any Person affected by the Work under the Contract including … users of the Road infrastructure”.[24]
  5. [41]
    Traffic management is also the subject of provisions under the RMPC.  By Clause 9.5, the Council’s obligation was set out:[25]

“The Contractor shall make all arrangements and do all things necessary to guide traffic safely past any of the Work under the Contract and take all precautions for the safety of workers and Road users.  The Contractor shall supply, install and maintain all traffic signs and control devices and make arrangements for control of traffic in accordance with a traffic guidance scheme (TGS) based on Part 3 of the Manual of Uniform Control Devices (Queensland).”

  1. [42]
    Perhaps not surprisingly, the routine maintenance guidelines contain detailed provisions for how pothole repairs should be carried out.  Emergency temporary pavement repairs are one such activity.[26]  That is described as a “temporary repair of the roadway surface to eliminate hazardous conditions until such time as permanent repairs can be made …”.  For that purpose the work operations include, relevantly, “establishment and disestablishment of traffic control”.

Relevant statutory provisions

  1. [43]
    Section 35 of the Civil Liability Act 2003 (Qld) provides for the principles concerning public authorities such as the Council:

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—

  1. (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;
  2. (b)
    the general allocation of financial or other resources by the authority is not open to challenge;
  3. (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);
  4. (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. [44]
    The requirements of the RMPC are relevant to the issues governed by s 35 of the Civil Liability Act.  The Council was tasked with maintaining the highway on behalf of the State.  On the RMPC, the obligations to undertake maintenance were not confined to when a defect had reached the upper intervention level.  Steps had to be taken to identify the defect and protect road users ahead of that time.
  2. [45]
    Under the RMPC, the Council was indemnified by the State, except in circumstances which included it being negligent in carrying out its work.[27]  Relevant to that, the technical officer in charge of the RMPC gave evidence that:
    1. (a)
      the pothole patching crew fill any potholes that they find as they travel the highway, even before they reach the intervention level; the reason was because in wet weather a small pothole could turn into a particularly large one within a matter of hours; and
    2. (b)
      in their experience, a pothole might be less than at intervention level, but would get worse and exceed intervention level if not filled beforehand, particularly in wet weather.
  3. [46]
    Section 37 of the Civil Liability Act provides as follows:

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

  1. (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—
  1. (a)
    to repair a road or to keep a road in repair; or
  1. (b)
    to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.
  1. (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.”

The competing cases as to s 37(2) of the Civil Liability Act

  1. [47]
    In the Amended Statement of Claim the duty of care pleaded was that, subject to the Civil Liability Act 2003 (Qld), the Council owed a duty to take all reasonable care to eliminate foreseeable risks of injury to users of the highway exercising reasonable care for their own safety.[28]  The pleading also alleged some of the provisions of the RMPC, notably those making the Council responsible for maintenance of roads, obliging it to undertake all necessary inspections to identify deficiencies in the conditions of the roads and those guidelines which specified that if a hazardous defect was identified measures should be adopted that were reasonably necessary to safeguard road users until such time as the defect could be repaired.[29]
  2. [48]
    The breach of that duty was pleaded as including: failing to repair the pothole and failing to erect any adequate sign to inform road users to change their driving or riding conditions because of the presence of the pothole, and failing to secure the sign so that it did not fall down.[30]
  3. [49]
    The Further Amended Defence raised a number of matters in answer to those allegations.  It contended that it owed no duty to users of the highway and that its obligation to repair and maintain the highway was limited by the RMPC.[31]  As to the breach of duty, the Council pleaded that the existence of the pothole was not known to it, the RMPC did not require an immediate response by the Council, and the Council had erected the warning sign notifying of the rough surface and the need to reduce speed.[32]
  4. [50]
    Then the Council pleaded the operation of s 37(2) of the Civil Liability Act:[33]

“… at all material times [the Council] did not have actual knowledge of the particular risk the materialisation of which is alleged to have caused the Plaintiff’s injuries, that particular risk being the presence of the washout within the floodway…”

  1. [51]
    In that pleading, the defined term “the washout” meant the particular pothole which Ms Tait hit.[34]
  2. [52]
    The response to that pleading was in the Reply:[35]

“With respect to the allegations contained in paragraph 15 of the Further Amended Defence, the plaintiff denies the allegations therein and says by way of direct explanation that by reason of the matters pleaded at paragraphs 7-11 of the Statement of Claim, the defendant knew of the presence of large potholes on the floodway which gave rise to the particular risk of a motorist such as the plaintiff, being injured when striking the pothole.”

  1. [53]
    The reference in the Reply to “the pothole” was a reference to “the large pothole which caused the plaintiff’s accident”,[36] which in turn was “the washout” as defined in the Defence and “the pothole” as defined in paragraph 5(e) of the Amended Statement of Claim.
  2. [54]
    Thus it can be seen that it was the Council’s case that for the purposes of s 37(2) of the Civil Liability Act, the “particular risk” was the presence of the particular pothole in the floodway on 25 September 2016.  However, paragraph 12 of the Reply did not, in my respectful view, proceed upon the basis that the particular pothole was the particular risk for the purposes of s 37(2).  As noted above, paragraph 15 of the Council’s Further Amended Defence was denied and therefore the nature of the particular risk was put in issue.  However, the balance of paragraph 12 of the Reply was simply the direct explanation for that denial, and not a specific allegation of its own.  In other words, the Reply did not accept that the “particular risk” for the purposes of s 37(2) was the pothole which Ms Tait struck.  Insofar as anything is drawn from the direct explanation, it is that the Council knew of something which gave rise to the particular risk of a motorist being injured if they hit the pothole which Ms Tait hit.  The thing alleged to be known to the Council was “the presence of large potholes on the floodway”.
  3. [55]
    In the written outline on behalf of the Council at trial, the Council contended that the particular risk for the purpose of s 37 of the Civil Liability Act was the particular pothole which Ms Tait struck.[37]
  4. [56]
    In the written submissions on behalf of Ms Tait at trial, it was contended that s 37 of the Civil Liability Act did not provide immunity to the Council, essentially for two reasons:[38]
    1. (a)
      from 22 September the Council was aware of the deteriorating state of the road surface at the floodway, which had prompted it to place the rough surface/reduce speed signs on either side of the floodway; further, the Council knew of the likelihood of the road surface further deteriorating; and
    2. (b)
      the Council’s failure was in negligently placing the road signage in circumstances where it knew of the deteriorating surface of the road.
  5. [57]
    In oral address it was made clear by the learned trial judge that he understood that the plaintiff’s case was not confined to a contention that the particular risk was that of the pothole which Ms Tait hit.  Rather, as his Honour put it, the plaintiff was contending that “the accident has been caused by the failure to secure a warning sign to forewarn the existence of potholes or the pothole”.[39]  That comment was made in the course of submissions about the plaintiff’s case being not about a failure to repair, but a breach of the duty to warn as referred to in paragraph 90 of the submissions on behalf of the plaintiff.
  6. [58]
    As submissions progressed the learned trial judge again engaged Senior Counsel for the Council on the issue about the extent of the plaintiff’s case.  In the context of examining the allegation of breach of duty in paragraph 15 of the Amended Statement of Claim, his Honour referred to paragraph 15(g) which pleaded a breach by failing “to appropriately secure the sign against wind by weighing it down with, for example, sandbags”.  That is a distinct allegation from those in paragraphs 15(e) and (f), which asserted a failure to erect any adequate sign to warn of the presence of “the pothole” as defined.  As was pointed out,[40] the plaintiff had defined “the sign” by reference to the sign which was actually erected by the Council employees on 22 September.[41]  Therefore, the breach being contended was one distinct from matters tied to the particular pothole.  Rather, it was a failure to adequately secure the sign which the Council employees had acknowledged was designed to warn road users of the presence of a rough surface and the need to reduce speed.
  7. [59]
    Counsel for the plaintiff made it plain in oral address that the plaintiff did not accept the proposition that the “particular risk” for the purposes of s 37(2) of the Civil Liability Act was the particular pothole which Ms Tait hit.  Rather, it was put as being:[42]
    1. (a)
      the Council did identify a particular risk at the floodway;
    2. (b)
      the particular risk identified was a risk to road users from the deteriorating state of the road;
    3. (c)
      the response to the risk was to put warning signs on both sides of the floodway, warning of a rough surface and the need to reduce speed;
    4. (d)
      it was noteworthy that the Council’s response by putting warning signs included putting one on that side of the floodway opposite to where the actual pothole was, and where any potholes had been identified; and
    5. (e)
      the particular risk was the deteriorating floodway, rather than any particular pothole.
  8. [60]
    The nature of the case being based upon a general failure to warn by reason that the signs that were erected were not held in a stable position, was emphasised in oral address.[43]  In that respect the plaintiff’s Counsel made it plain that paragraph 90 of the written submissions was pressed, that being that s 37 of the Civil Liability Act did not apply because the relevant failure was the Council’s failure to properly warn when it knew of the deteriorating surface of the road.
  9. [61]
    Thus, in my view, it is plain that the case was not confined to the application of s 37(2) in the context that the particular risk was the particular pothole which Ms Tait hit.  That was certainly the Council’s case, but not the plaintiff’s case.

Application of s 37(2) in any event

  1. [62]
    In my respectful view, s 37(2) of the Civil Liability Act does not apply in this particular case.  To explain that conclusion some repetition is necessary.
  2. [63]
    Section 37 of the Civil Liability Act relevantly provides:

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

  1. (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—
  1. (a)
    to repair a road or to keep a road in repair; or
  1. (b)
    to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.
  1. (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.”
  1. [64]
    In s 37 a “road authority” is an “entity responsible for carrying out any road work”.  The section provides a road authority with immunity from legal liability for “any failure … in relation to any function” it has in that capacity.  The relevant functions are: (a) to repair a road; (b) to keep a road in repair: s 37(1)(a).
  2. [65]
    Section 37(1)(b) is irrelevant to the present issues as there is no suggestion that the Council failed to inspect the roadway.
  3. [66]
    The Council’s functions to repair and keep a road in repair include the function of erecting temporary warning signs.  The RMPC obliges the Council to “ensure … that the [roads included in the RMPC are] in a safe condition for Road users”: clause 2.5.1.  For that purpose the Council “must plan and manage Maintenance efficiently” and undertake Maintenance efficiently: clauses 2.5.2 and 2.5.3.[44]  “Maintenance” means “All activities, as indicated in this Manual and the Guidelines, to rectify Roads”: clause 1.4.
  4. [67]
    The RMPC requires that the Council identify and plan Work in advance, and perform it using a systematic approach: clauses 2.6.3 and 4.1.3.[45]  “Work” means “the physical Works delivered on the Network which includes Routine Maintenance, Minor Works, Emergency Maintenance …”: clause 1.4.  The term “Emergency Maintenance” means “Activities undertaken by the [Council] in response to an emergency situation”, and “Routine Maintenance” means the activities in the guidelines: clause 1.4.
  5. [68]
    The Council was obliged to carry out Maintenance once the Upper Intervention Level of a defect was reached, but also before the Upper Intervention Level of a defect was reached in instances where “obvious safety reasons” are present: clause 2.9.1.[46]
  6. [69]
    The RMPC also obliges the Council to have and follow safety plans.  In that context the Council was obliged to “guide traffic safely past the Work in accordance with traffic guidance schemes based on the department’s Manual of Uniform Traffic Control Devices”: clause 3.4.[47]
  7. [70]
    That obligation mirrored one in the General Conditions, under which the Council “shall make all arrangements and do all things necessary to guide traffic safely past any of the Work … and take all precautions for the safety of … Road users”.  Specifically, the Council had to “supply, install and maintain all traffic signs and control devices and make arrangements for control of traffic in accordance with” the Manual of Uniform Traffic Control Devices: clause 9.5.[48]
  8. [71]
    The RMPC also contained a hierarchy of defects according to priority.[49]  Priority 1 was a “Hazard”, identified as “defects where the likelihood of harm occurring and its consequences is greater than a safety Defect”.  Priority 3 was given to a Safety Defect, namely Defects “considered to be of a safety nature and that have occurred without significant warning”.  Priority 5 was a “Preventative Defect”, namely one “that, if treated, prevent further asset deterioration, such as sealing of cracked areas to prevent potholes …”.
  9. [72]
    As can be seen from the Council workers’ evidence, the defects identified on the floodway were more serious than “Preventative defects”, as safety concerns were identified which put them into the “Safety” or “Hazard” priority.
  10. [73]
    The Council’s obligations under the RMPC include ensuring the safety of any person affected by the Council’s maintenance work, including road users: clause 9.4.[50]
  11. [74]
    These provisions compel the conclusion, in my view, that erection of temporary signage was part of the Council’s maintenance work once it was determined that the road surface was damaged, potholes would exist and get worse, and therefore there was danger to road users.  The evidence of Mr Brian Smith set out at paragraph [15] above makes it clear that the presence of the temporary signage was an integral part of the Council’s approach to maintenance of the floodway; nothing could be done using gravel or premix because of the continued presence of the floodwater, so the signage meant they could safely leave physical maintenance or repair until later.
  12. [75]
    Thus, failure to properly fix the signage in place would constitute a failure in relation to a function the Council had, namely to repair the road.  Thus s 37(1) would be engaged but for the operation of s 37(2).
  13. [76]
    Section 37(2) provides that s 37(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”.  The risk identified by the Council workers was that potholes could develop or worsen, and if that happened a road user could be harmed.  It was that risk which materialised and resulted in injury to Ms Tait.
  14. [77]
    The Council relied upon several decisions in aid of its contentions on this point, Collins v Clarence Valley Council,[51] North Sydney Council v Roman,[52] Botany Bay City Council v Latham,[53] and Endeavour Foundation v Weaver.[54]
  15. [78]
    Collins concerned a cyclist whose front wheel became stuck in a gap between two planks on a bridge.  The trial judge held that the risk was obvious, and that the evidence did not establish that the Council knew of the particular risk, and so s 45(1) of the Civil Liability Act 2002 (NSW) was engaged to protect the Council from liability.[55]  On appeal the Court held that that finding was open on the evidence.[56]  No question of principle was established, nor guidance as to what “particular risk” means.  The case turned simply on its facts.
  16. [79]
    North Sydney Council v Roman concerned a person who was injured when she fell into a pothole in the gutter.  The evidence established that street sweepers cleaned the area regularly, and were instructed to identify hazards.  No street sweeper was called to give evidence.  The trial judge inferred that the street sweepers had actual knowledge of the pothole, and attributed that knowledge to the Council.  On appeal the Court held that actual knowledge must be found in the mind of an officer within the Council having authority to carry out the repairs, and that the evidence showed that no Council officer at a decision-making level knew of the particular pothole.[57]
  17. [80]
    That synopsis is sufficient to demonstrate why North Sydney Council v Roman does not assist the Council’s case here.  In so far as it dealt with whose knowledge was necessary to the purpose of s 45(1) of the NSW Act, that test is met in this case.  The Council’s patching crew, engineer, technical officer and supervisor knew of the fact that the floodway was damaged and potholes existed there and would deteriorate, and the supervisor instructed the temporary signage to be put up.[58]  Otherwise the case turns on its own facts.
  18. [81]
    Botany Bay concerned a person who tripped while walking on a footpath.  She alleged it was on an uneven brick paver.  The Court of Appeal held that there was no finding as to which paver was involved, nor that the paver was uneven.  Further it was not established that there was any irregularity beyond what might be found in any footpath.[59]  The case therefore failed at an evidential level.  However, consideration was given to the s 45(1) point.  It was held that as the plaintiff had put her case on the basis that a particular paver was uneven and caused her to trip, the actual knowledge required was of that paver and there was no evidence that the Council knew of it.[60]
  19. [82]
    Botany Bay does not assist here where the actual knowledge was not contended to be confined to the particular pothole.
  20. [83]
    In my respectful view, Endeavour adds nothing to this discussion and need not be considered further.
  21. [84]
    Therefore, put into the context of the case at trial, s 37(1) does not apply if, when the temporary signage was not properly fixed in place, the Council knew of the risk that a road user could be injured by hitting an existing or developing pothole.  In my view, the Council, via its workers, knew of that risk at the time they erected the signage and failed to secure it.  Consequently s 37(1) of the Civil Liability Act does not apply.
  22. [85]
    The Council’s contentions to the contrary should be rejected.

Findings as to the duty of care

  1. [86]
    The learned trial judge found that the Council owed a duty of care “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”.[61]
  2. [87]
    The Council’s contention is that the learned trial judge found that the extent of the Council’s obligations to repair and maintain the highway was limited by the terms of the RMPC, but no finding was made that the Council had breached the duty of care, nor that it had breached any identified part of the RMPC insofar as its duty to inspect or repair was concerned.  Further, it was contended that there was no finding concerning the existence and content of the duty to warn which underpinned the finding made that the plaintiff’s case was not based on a failure to repair and inspect the road, but rather based on the Council’s failure, knowing of the deteriorating surface of the road, to negligently place the temporary signage.[62]
  3. [88]
    In my respectful view these contentions misapprehend the nature of the finding by the learned trial judge, and the duty of care established on the facts.
  4. [89]
    It is true to say that the opening words of paragraph [72] of the reasons below were “having regard to the RMPC documents, I find …”, then followed by a reference to the Council’s duty of care.  However, the finding of the duty of care was not based on the RMPC documents alone, but rather a combination of the obligations in the RMPC and the actions and knowledge of the Council’s workers in the days leading up to 25 September 2016.
  5. [90]
    So much is evident from the findings expressed in paragraph [64] of the reasons below, set out verbatim in paragraph [29] above.  Those findings include the state of knowledge of the Council on 22 September 2016, that there was pavement damage on the floodway, that the sealed bitumen surface had begun to strip, and that potholes were beginning to develop in that area.  Further, the findings were that the Council’s patching crew had identified that the conditions might be dangerous to traffic and the necessary response, which was activated, was to erect the rough surface/reduce speed temporary signage.
  6. [91]
    The obligations under the RMPC were obligations of maintenance in the interests, in part, of the safety of users of the roadway.  In my view, erection of the temporary signage was part of or the commencement of the Council’s performance of its maintenance obligations in respect of the floodway.  Whatever the state of the pothole in question in terms of its size or depth, the likelihood of potholes existing and deteriorating was identified, and the first step towards the necessary maintenance to repair that state of affairs was to erect signage pending the carrying out of any physical work.
  7. [92]
    That obligation is borne out by reference to various provisions in the RMPC which have been examined above.
  8. [93]
    Because of the RMPC the Council had control over the highway, and control over its condition.  That control creates the duty of care under which the Council was obliged to exercise reasonable care to avert a danger to safety or bring that danger to the knowledge of road users who might be at risk from it.[63]
  9. [94]
    The erection of the temporary signage was plainly a step taken by the Council workers to warn users, and in particular those approaching the floodway, that the surface of the roadway was rough and as a consequence their speed needed to be adjusted.  In my view, the act of putting the signage up did at least two things.  First, it was part of the performance of the obligation to exercise reasonable care to ensure that road users are safe.  Secondly, it was in part performance of the obligation to manage traffic where maintenance work was to be done, and warn road users of the risk posed by the road conditions.
  10. [95]
    The findings by the learned trial judge in paragraph [64] of the reasons below amply support his Honour’s conclusion as to the duty upon the Council identified in paragraph [72] of the reasons below.
  11. [96]
    I would express that duty slightly differently, but conformably with his Honour’s findings.  In the circumstances, the duty on the Council was to take reasonable care in carrying out maintenance work on the roadway, including installation of warning signage, so as to not create a foreseeable risk of harm to users of the roadway from developing potholes.[64]

Content of the duty

  1. [97]
    Senior Counsel for the appellant contended that the learned trial judge had made no finding concerning the content of the duty to warn.  Thus, it was submitted that there was no finding as to whether the duty to warn was limited by the terms of the RMPC, or a freestanding duty arising independently of that contract.
  2. [98]
    In my view, the contention cannot be accepted.  The learned trial judge’s findings in paragraph [64] of the reasons below contain findings on the activities carried out by the Council’s maintenance crew in the days leading up to 25 September.  Those findings included that as part of their performance of the Council’s maintenance obligations, they identified that there was a danger to traffic because of the rough surface of the floodway and the likelihood of potholes; they identified the need, in those circumstances, to provide signage which would warn motorists of the rough surface and the need to reduce their speed; and they erected signage saying “rough surface” and “reduce speed” in a way that would have warned traffic no matter from which direction the floodway was approached.
  3. [99]
    The learned trial judge also referred to the evidence of Mr Pfingst, which was that the Council’s patching crew would perform work on potholes before the intervention levels were reached because experience told them that potholes would simply get worse, particularly in persistent wet weather.[65]  Those findings, combined with what his Honour drew from the RMPC, led to the conclusion that the duty relevantly included a duty to fix defects deemed to be a safety hazard in a timely and efficient manner, and to maintain the road network to a safe standard.
  4. [100]
    The content of that duty included physical maintenance work, but at the time in question (25 September 2016) the time had not arrived for the performance of physical maintenance work on the road surface in the floodway.  However, the maintenance obligations had been embarked upon by, at the least, the identification of the fact that the roadway was damaged, that the sealed surface had begun to strip, and that potholes existed and were likely to develop.  Secondly, the duty encompassed the taking of necessary steps to perform the maintenance obligation, notably at the relevant time by the erection of temporary signage to warn of the danger (rough surface) and to caution road users as to their manner of driving (reducing speed).
  5. [101]
    When read in conjunction with the findings as to the identification of the need to erect signage, and the steps taken to erect that signage, the duty found by his Honour effectively included a duty to warn.  For the purposes of the matters in issue in these proceedings, there is no need to state the content of that duty beyond its application to what the patching crew confronted.  Having identified that there was a danger to motorists on the highway from potholes in the floodway, or even just the rough surface of the floodway, the duty was to take the first steps in the maintenance process by erecting temporary signage to warn motorists of the rough surface and the need to decrease speed.
  6. [102]
    In my view, to frame the duty as simply a duty to warn is to unduly confine its nature and scope.  The learned trial judge did not express it as a duty to warn, but rather dealt with it on the basis that the duty was to maintain by fixing defects in a timely and efficient way, and to maintain the roadwork to a safe standard for travelling public.  Taking steps to warn motorists was simply part of the duty to maintain.

Securing the temporary signs

  1. [103]
    The Council contends that there was error on the part of the learned trial judge in that he did not consider the application of s 35 of the Civil Liability Act in the context of the requirement not only to install warning signs, but also to ensure that they were appropriately secured.  The submission was that the failure of his Honour to do so was particularly acute given the finding that there were no sandbags available to secure the signs.
  2. [104]
    In my respectful view, the contention lacks merit.  True it is that there were no sandbags available to secure the temporary signs because the Council’s supply had been exhausted some four days earlier.[66]  The difficulty which the Council confronts in this respect is that those erecting the temporary signs knew there were no sandbags, yet did nothing to secure the signs in place.  Several alternatives readily spring to mind.  For example, as Mr Everingham (the Council’s supervisor of the patching crew) accepted, the patching crew could have used any heavy weight, or a star picket (which were available at the Council’s depot).[67]  Another solution was to simply affix the temporary signage to the floodway signs, which were permanent.[68]
  3. [105]
    Further, the signs were erected on 22 September, three days before Ms Tait’s accident.  The evidence from the patching crew was that the site was visited twice on 24 September at which time observations were made about the water level and the potholes.  There was no evidence of any step taken on 24 September to rectify the position which applied when they first put the signage up, namely that there were no sandbags to secure the signs in place.  Given that sandbags were normally used in order to fix the signs in place, the patching crew were clearly aware of the deficiency at the time the signs were erected, and reminded of it on 24 September.
  4. [106]
    Evidence accepted by the learned trial judge, from Council employees, was that the signs needed to be stabilised against windy conditions and the effects of traffic wind buffeting;[69] the whole purpose of using the sandbags was to weigh the signage down so it would not be blown over.[70]  Yet there was no evidence that anyone searched the Council stores, nor was there any evidence that the Council gave instructions to the patching crew as to what to do in the event that sandbags were not available.[71]  The learned trial judge found that there were other options available to stabilise the temporary signage, which included the use of any heavy object or the use of star pickets which were kept at the Council depot.[72]

Causation

  1. [107]
    The Council contended that the learned trial judge’s treatment of the issue of causation was inadequate to establish that had the temporary signage been visible, that it would have made a difference to the way in which Ms Tait and the other riders dealt with the floodway.
  2. [108]
    The learned trial judge’s finding[73] followed a number of findings based on his Honour’s assessment of the evidence:
    1. (a)
      had the signage been securely in place, Ms Trehearn (the lead rider) would have observed it and slowed her motorcycle accordingly;
    2. (b)
      in addition, Ms Trehearn would have actively braked; this involved acceptance of Ms Trehearn’s evidence that as the lead rider, “what I do, the others are going to do behind me”, that she would have braked and “deliberately brought it down much quicker than I did”, as well as assess what to do, not just for herself “but for everyone else as well”;[74]
    3. (c)
      that would have caused the next rider back, Ms Death, to slow down;
    4. (d)
      that would also have caused the other riders to slow down in quick succession; in particular, Ms Tait, who was following Ms Death, would have slowed down; and
    5. (e)
      it was more probable than not that Ms Tait would have slowed her motorcycle and “would have been easily able to avoid riding through the washout”.
  3. [109]
    Those findings are, in my view, unexceptional.  The evidence at the trial was that the group of riders were all mature aged,[75] who were each experienced motorbike riders, experienced at riding with one another over a number of years, and experienced at riding in the formation which they did, namely staggered and with a lead rider.  The group had travelled about 400 kilometres that day, without incident, along roads where the recent wet weather had created difficulties.  They had encountered a lot of “floodway” signs, and temporary signs describing “rough surface” and “slow down”.  Ms Trehearn as lead rider gave evidence that she would always decrease her speed when she saw signs that indicated changed traffic conditions.  She was plainly aware of her responsibility as lead rider, given her evidence that what she did would then be followed by other riders.  Ms Trehearn slowed sufficiently to avoid the pothole, but the next rider back (Ms Death) did not manage to avoid the pothole, though she stayed on the motorbike.  All of the riders gave evidence that Ms Tait was an experienced, safe, cautious rider.
  4. [110]
    In those circumstances, and particularly given that the learned trial judge accepted the evidence of Ms Trehearn about her habit, based on experience, of slowing when confronted by signs saying “rough surface” or “reduce speed”, the findings upon which causation were based are sound.  The reduction of speed which saw Ms Death not able to avoid the pothole, and likewise Ms Tait, was a reduction in speed not prompted by anything but the floodway sign and Ms Trehearn’s noticing discolouration on the road and then, when closer, a defect.  Had the temporary signage been up, the speed would have been reduced even further and Ms Tait would have been able to avoid the pothole.

Contributory negligence

  1. [111]
    The Council contended that a finding of contributory negligence should have been made on the basis that Ms Tait was travelling too closely to the motorcycle in front of her, at an excessive speed in the circumstances, and knew that something was amiss ahead.
  2. [112]
    There are a number of reasons why this contention should be rejected.
  3. [113]
    First, the findings which underpin his Honour’s conclusions on causation amply justify the conclusion that had the temporary signage been visible, the group would have reduced their speed to the point where the pothole could have been avoided.  That necessarily involves the finding, which was made, that Ms Trehearn as lead rider would have reduced her speed, and so would the other riders following her.  Therefore, the speed at which they were travelling in the absence of the temporary signage is not to the point.
  4. [114]
    Secondly, given that the group was riding in a staggered formation, and thus displaced relative to one another in terms of their position in the lane, two to three car lengths between motorbikes could not be said to have been too close in the circumstances.  Ms Tait was, on the evidence accepted by the learned trial judge, between four to six car lengths behind the lead rider, and two to three behind Ms Death.  The evidence that was accepted by his Honour was that this was a group of experienced motorbike riders, not only in riding motorbikes but in riding with one another, responsible, careful to obey warning signs, and alert to the possibility of dangerous conditions because of the recent wet weather.  None of that bespeaks lack of care on the part of Ms Tait for her own safety.
  5. [115]
    Thirdly, Ms Tait was part of a group riding under the control of a lead rider.  That meant that her regard for her own safety depended in part upon reliance on the lead rider.  The lead rider was a very experienced rider whose identification of the defect was sufficient to avoid hitting the pothole.  All that occurred in the absence of the temporary signage.  The position would have been even safer had the signage been in place.  There is no basis to conclude that Ms Tait was not observing care for her own safety as she rode in the staggered formation and under the control of the lead rider.  The lead rider identified the defect, first by noticing discolouration on the road, and then as an actual defect when she got closer.  Her speed, which would have reflected that of Ms Tait behind her, was sufficiently slow that she was able to turn around in time to still see Ms Tait flying through the air.  That does not suggest excessive speed in the circumstances.
  6. [116]
    Fourthly, by riding in staggered formation, with riders offset one against the other, Ms Tait was in a position where she could see forward, and critically maintain observation of the lead rider.  She was conscious of the previous rainfall and flooding, and the potential for damage to the roads.  She had been part of a group which had successfully deployed the method of riding for some 400 kilometres prior to the accident.  In the circumstances, that was powerful evidence that her riding as part of the staggered formation group was appropriate to care for her own safety.

Conclusion

  1. [117]
    For the reasons set out above the appellant’s grounds of challenge have failed.  I would dismiss the appeal with costs.
  2. [118]
    McMURDO JA:  The facts are set out in full in the judgment of Morrison JA and I need not repeat them.  For the reasons that follow, I agree that the appeal should be dismissed.

The Council’s duty of care

  1. [119]
    This accident occurred on a road which was declared, under s 24 of the Transport Infrastructure Act 1994 (Qld), as a State-controlled road.  The ultimate control over such a road is in the chief executive under that Act.[76]  By s 28, the chief executive may exercise, for a State-controlled road in the area of a local government, all of the powers that the local government may exercise for a local government road in the area.[77]
  2. [120]
    By s 29, the chief executive may enter into contracts with other persons, including local governments, for the carrying out of road works on a State-controlled road.  Such a contract may provide for which powers of the local government are to be exercised by the chief executive, and which of the powers are to be exercised by the local government for the State-controlled road: s 29(4).
  3. [121]
    A local government may exercise, for a State-controlled road, all of the powers that it may exercise for a local government road in its area.[78]  However, if there is a contract of the kind mentioned in s 29(4), the exercise of the powers must be according to the contract.[79]
  4. [122]
    Pursuant to s 29(4), such a contract was made with the Council, described as a Road Maintenance Performance Contract (“the Contract”).  It recited that the maintenance of State-controlled roads had been carried out by local governments and the State for more than 70 years, with the local governments being reimbursed for the cost of work undertaken, “as the agent of the department”.[80]
  5. [123]
    By cl 2.5.1 of the Contract, the Council, “as the department’s local representative” was to “act professionally in the department’s interest” and to ensure, amongst other things, that “Maintenance concerns are addressed [by the Council] and only referred to the department when necessary”, and that “the Network[81] is in a safe condition for Road users.”
  6. [124]
    The Contract specifically anticipated the Council’s potential for liability for failing to carry out road maintenance, according to Brodie v Singleton Shire Council (“Brodie”)[82] and to ss 35 and 37 of the Civil Liability Act 2003 (Qld).[83]
  7. [125]
    The Contract thereby delegated to the Council the State’s powers and responsibilities, for the maintenance of roads which included the present one.  Whilst the ultimate legal control of these roads remained with the chief executive, the Council was given effective control of them.  The Council was vested with powers having both a statutory and a contractual basis, with “such a significant and special measure of control over the safety of the person or property of citizens as to impose upon [the Council] a duty of care”: Brodie per Gaudron, McHugh and Gummow JJ at 559 [102].  It is the factor of physical control over the structure and condition of the highway, where that is the source of the risk of harm, which is of fundamental importance to the imposition of this duty of care,[84] and that physical control was given to the Council.  By that duty of care, the Council was obliged to exercise its powers “to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger.”[85]
  8. [126]
    For the Council, it was argued that the trial judge did not identify the origin and content of its duty to warn of this hazard.  It was argued that the judge failed to identify whether the duty to warn was “limited by the terms of the [Contract], in the same way as the duty to repair”, or whether it was “some form of free-standing duty that arose independently of the [Contract]”.[86]
  9. [127]
    The argument cannot be accepted.  The Council’s alleged liability was for breach of a common law duty of care, rather than for breach of the Contract.  The duty of care was owed by the Council because of the powers and responsibilities which it had been given under the Contract.  But the duty of care did not depend upon its being replicated by a term of the Contract.  Therefore, neither of the alternatives posed by the Council’s submission would accurately describe the origin and content of the duty of care and responsibility.  I would not accept, as the trial judge did, that the Council’s obligations were “limited and enshrined” in the Contract.
  10. [128]
    On the facts and circumstances of this case, which are hardly unusual, the existence and content of the duty of care ought to have been clear.  Its basis was the common law as stated by the majority in Brodie.
  11. [129]
    As to the content of the Council’s duty of care in Brodie, Gaudron, McHugh and Gummow JJ said:

“[150] The duty which arises under the common law of Australia may now be considered.  Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff.  Where the state of a roadway, whether from design, construction, works or nonrepair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk.”

More specifically, in respect of the repair and maintenance of roads, their Honours said:

“[162] The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority.  In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations.  The resources available to a road authority, including the availability of matériel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made.  It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed.  Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question.”

(Emphasis added.)

  1. [130]
    In this case, as the actions of the Council’s employees demonstrated, there was a foreseeable risk of personal injury from the surface of the road being, or becoming, unfit for the passage of vehicles at what would ordinarily be a safe and lawful speed.  The Council was bound to take reasonable care to avoid that risk.  Pending the repair of the surface, this required the Council to erect warning signs, and to do so with reasonable care.

Section 37 of the Civil Liability Act

  1. [131]
    Section 37 is as follows:

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

  1. (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—
  1. (a)
    to repair a road or to keep a road in repair; or
  1. (b)
    to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.
  1. (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.
  1. (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. [132]
    The Council was a “road authority” within that provision.  Its alleged liability was for a failure “in relation to” a function which the Council had, as a road authority, to repair the road.  The words “in relation to” can have a wide meaning in expressing a connection or relation between two subject matters, but they commonly reflect the context in which they appear.[87]  The Council’s duties were to repair this section of the road, and before doing so, to take reasonable steps to avoid the risk, which I have described above, by warning motorists about the condition of the road.  Its failure to warn them, by not erecting signs which would remain upright until the road was repaired, was a failure in relation to its function to repair the road.  Subject to s 37(2), the Council would not be liable.
  2. [133]
    Section 37(2) made s 37(1) inapplicable to this case if, at the relevant time, the Council had actual knowledge of the particular risk, the materialisation of which resulted in the harm.
  3. [134]
    The Council’s argument was that the “particular risk” was the particular pothole or other defect in the surface of the road which caused the loss of control of the respondent’s motorcycle.  That submission cannot be accepted.  The pothole was not the particular risk which materialised.  The risk was that which I have described above at [130].  It was the materialisation of that risk which resulted in the harm.  Undoubtedly, the Council had actual knowledge of that risk.  That is why the Council erected, although incompetently, the warning signs.

Section 35 of the Civil Liability Act

  1. [135]
    The Council argues that the judge failed to have regard to the principles of s 35, in deciding whether it had breached its duty of care.  Its argument seemed to be that, in the terms of s 35, it had limited resources, namely sandbags by which the signs could have been secured, and its allocation of those resources elsewhere could not be open to challenge.
  2. [136]
    It is sufficient to say that the use of sandbags was not the only way in which the signs might have been kept upright for a few days.  As the trial judge found, there were other options to stabilise this signage, such as affixing the sign to the permanent “Floodway” sign.[88]

Other issues

  1. [137]
    I agree with the reasons of Morrison JA in rejecting the appellant’s arguments about causation and contributory negligence.
  2. [138]
    I therefore agree with the orders proposed by Morrison JA.
  3. [139]
    BURNS J:  I have read the reasons of Morrison JA.  I agree with those reasons as well as his Honour’s conclusion that this appeal should be dismissed with costs.  I also agree with the additional reasons expressed by McMurdo JA.

Footnotes

[1]Tait v Goondiwindi Regional Council [2019] QDC 208 at [6]-[22].

[2]Mr Doughty, Mr Deans and Mr Webster.

[3]He was a member of the Council’s road patching crew and had been with the Council 11 years.

[4]He was a backhoe operator who had been employed by the Council for 14 years; he was part of the patching crew.

[5]He was a bitumen maintenance labourer and member of the Council’s patching crew; he had been with the Council nine and a half years.

[6]Marked on Exhibit 2, photograph 44, Appeal Book (AB) 167.

[7]AB 1247 line 47.

[8]AB 1246 lines 1-8.

[9]AB 1248 lines 6-10.

[10]AB 1172 lines 15-35.

[11]AB 1175 lines 18-30.

[12]Clause 1.2.3, AB 130.

[13]Clause 2.5, AB 134.

[14]AB 136.

[15]AB 132.

[16]AB 139.

[17]AB 322.

[18]AB 333.

[19]AB 335.

[20]Clause 3.1(c).

[21]Clause 3.2(2), AB 336.

[22]Clauses 9.1 and 9.2, AB 350.

[23]Clause 9.2.

[24]Clause 9.4, AB 351-352.

[25]AB 353.

[26]AB 406.

[27]Clause 3.3, AB 337.

[28]Para 2(g), AB 67.

[29]Paras 3 and 4, AB 67-68.

[30]Para 15(b) and (e)-(g), AB 71.

[31]Paras 2(i) and (j), AB 98.

[32]Para 14, AB 105-106.

[33]Paragraph 15(b), AB 106.

[34]Para 5(c), AB 99.

[35]Para 12, AB 115.

[36]Para 8(e) of the Reply, AB 113-114.

[37]Paras 99-108, AB 1367-1369.

[38]Paras 87 and 90, AB 1405.

[39]AB 1301 line 41.

[40]AB 1311 line 14 to AB 1312 line 26.

[41]Para 9(c) of the Amended Statement of Claim, AB 69.

[42]AB 1328 line 42 to AB 1329 line 30.

[43]AB 1332 and 1336-1337.

[44]AB 135.

[45]AB 136, 150.

[46]AB 139.

[47]AB 144.

[48]AB 353.

[49]Figure 3.2.1, AB 336.

[50]AB 352.

[51][2015] NSWCA 263.

[52][2007] NSWCA 27.

[53][2013] NSWCA 363.

[54][2013] QCA 371.

[55]Collins at [58]-[60].

[56]Collins at [157]-[162].

[57]North Sydney Council v Roman at [150]-[157] per Basten JA, and Bryson JA at [129]-[130].

[58]Reasons below at [64](c)-(i); Mr Everingham’s evidence at AB 1229 line 32 to AB 1230 line 7.

[59]Botany Bay at [33]-[36], [43].

[60]Botany Bay at [46]-[49].

[61]Reasons below at [72].

[62]Reasons below at [74].

[63]Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29, at 559 [102]-[103].

[64]Vairy v Wyong Shire Council (2005) 223 CLR 422, [2005] HCA 62; Brodie v Singleton Shire Council (2001) 206 CLR 512, [2001] HCA 29.

[65]Reasons below at [70]-[71].

[66]Reasons below at [64](f).

[67]AB 1240 lines 4-20.

[68]Evidence of Mr Alford, AB 1217 lines 4-9.

[69]Reasons below at [84].

[70]Reasons below at [85].

[71]Reasons below at [86].

[72]AB 1240 lines 4-20; AB 1271 lines 17-24.

[73]Reasons below at [92].

[74]AB 1086 lines 13-17.

[75]Described by Ms Trehearn as “a mob of oldies”, AB 1086 line 23.

[76]Transport Infrastructure Act 1994 (Qld), s 23(1)(b); as to the office of chief executive, see Acts Interpretation Act 1954 (Qld) s 33(11).

[77]As to which, see Local Government Act 2009 (Qld), s 60.

[78]Transport Infrastructure Act 1994 (Qld), s 45(1).

[79]Transport Infrastructure Act 1994 (Qld), s 45(2).

[80]Clause 1.2.1 of the Contract.

[81]Defined as those roads included in the Contract: cl 1.4.

[82](2001) 206 CLR 512; [2001] HCA 29.

[83]Clause 3.3 of the Contract.

[84]Brodie at 559 [102]-[103].

[85]Ibid.

[86]Appellant’s amended outline of argument, para 8.

[87]cf Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 at 47 (Brennan, Deane and Gaudron JJ).

[88]Tait v Goondiwindi Regional Council [2019] QDC 208 at [86].

Close

Editorial Notes

  • Published Case Name:

    Goondiwindi Regional Council v Tait

  • Shortened Case Name:

    Goondiwindi Regional Council v Tait

  • MNC:

    [2020] QCA 119

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Burns J

  • Date:

    05 Jun 2020

Litigation History

No Litigation History

Appeal Status

No Status