Plunkett v Council of the City of Gold Coast
[2000] QDC 414
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- Plunkett v Council of the City of Gold Coast[2000] QDC 414
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Plunkett v Council of the City of Gold Coast[2000] QDC 414
Plunkett v Council of the City of Gold Coast[2000] QDC 414
DISTRICT COURT OF QUEENSLAND
CITATION: | Plunkett v Council of the City of Gold Coast [2000] QDC 414 | |
PARTIES: | JOHN PLUNKETT (Plaintiff) V COUNCIL OF THE CITY OF GOLD COAST (Defendant) | |
FILE NO/S: | 371/1996 | |
DIVISION: | District Court | |
PROCEEDING: | Action | |
ORIGINATING COURT: | Southport | |
DELIVERED ON: | 10 March, 2000 | |
DELIVERED AT: | Brisbane | |
HEARING DATE: | 9 – 11 February, 2000 | |
JUDGE: | P.D. Robin, Q.C., D.C.J. | |
ORDER: | Judgment for the plaintiff against the defendant in the sum of $27,512.33, with costs to be assessed | |
CATCHWORDS: | Negligence – whether road authority guilty of misfeasance or nonfeasance – plaintiff cyclist riding on defendant Council’s road injured when wheel fell between bars of a grate covering a gully pit – grate held to be part of road – misfeasance not established against defendant in initial design and construction – misfeasance established on basis that resurfacing of the road was done in such a manner that the grate became more difficult for an approaching cyclist to see – cyclist held guilty of contributory negligence to extent of two-thirds – mechanical engineer held not entitled to give expert evidence regarding civil engineering, and hydraulics in particular – Uniform Civil Procedure Rules r. 226 – whether tender of “Form 24” certifying solicitor’s explaining the duty of disclosure to party is necessary. | |
COUNSEL: | Mr G Cross (for the Plaintiff) Mr P Hackett (for the Defendant) | |
SOLICITORS: | Hoolihan’s Lawyers (for the Plaintiff) O'Keefe Mahoney Bennett (for the Defendant) | |
- [1]The plaintiff was a couple of days short of his 35th birthday on 24th August 1995 when he fell from his bicycle in Old Burleigh Road, Surfers Paradise just before the corner of First Avenue and broke his neck. Fortunately, he was wearing a helmet; it suffered some damage. A wheel of the bicycle got caught between the bars of a concrete grate which ran parallel to the plaintiff’s line of travel and he was thrown forwards, landing on his head. He suffered other injuries, including a broken bone in his right wrist, a broken jaw, concussion and a laceration to his left leg. His dental plate was broken. He blames the local authority for the accident, pleading the following particulars of negligence:
“(a) failing to install the said stormwater drain cover so that it was not a danger to cyclists using the said road;
- (b)causing and/or allowing the said stormwater drain cover to be installed and remain in such a position so as to allow the wheel of a bicycle to enter between the grates of the said stormwater drain cover;
- (c)failing to provide a stormwater drain cover which did not allow the wheel of a bicycle to enter between the grates;
- (d)failing to warn cyclists of the dangers of the stormwater drain covers;
- (e)positioning the stormwater drain cover so as it intruded onto the said road into the path of cyclists;
- (f)failing to install the stormwater drain cover with cross-grates so bicycle wheels would not enter between the grates of the said stormwater covers.”
- [2]The Council claims that if it is held negligent, there was contributory negligence by the plaintiff, essentially in failing to watch where he was riding. It resists the proposition that it was negligent, relying on the well-established doctrine that protects highway authorities whose only failing is to do nothing (nonfeasance) as opposed to those who do something, but do it negligently (misfeasance): see Buckle v Bayswater Road Board (1937) 57 CLR 259. Although such a grate would no longer be installed, at least partly because of the danger posed to cyclists, the Council argues that when this one was installed, some time between 1968 and 1975, it conformed with best practice.
- [3]The plaintiff’s accident happened about 8.00am on a day which was apparently clear. He was riding his bicycle, which may be described as a racing bike or semi-racer in a southerly direction along Old Burleigh Road, which he knew well, having ridden there for months five or six times a week. He said he was riding close to the gutter because the traffic was heavy:
“Just before the corner I’ve looked around to check and to make sure that no cars were turning (left from Old Burleigh Road into First Avenue so as to turn across the plaintiff’s line of travel) – just as I’ve looked back around the front wheel’s gone from under me. Just disappeared – boom – straight down. I’m going straight over the handle bars, landed on me head. I’m lying on the road. I went to get up but I couldn’t move the top of my body. I couldn’t move me head.”
- [4]As noted already, the wheel had got caught in a concrete grate placed over a gully pit designed to carry off surface water from Old Burleigh Road and from adjacent land which, if not drained away, would get onto the road.
- [5]The grate was supposedly constructed in accordance with a plan dated 16th September 1968 (Exhibit 23), which plan provided “standard details of side entry pits with & without – grates”. According to the plan, the grate was constituted by ten pre-cast concrete grate bars each 3 feet 6 inches by 2¼ inches by 4½ inches. The last measurement represented the depth of the bar. Each was “waisted” so that the 2¼ width at the end quickly tapered away; when the bars lay alongside each other, the effect was that the width of each opening to permit water to get into the gully pit approached the width of the contiguous bars. The plan showed no dimensions in this respect. Measurements attempted in Court using two such bars in pristine condition showed considerable variation in the width of the openings, depending on the vagaries of the combination of mould and concrete pouring technique used, and on which surface of a bar was placed at the top. The subject grate, in accordance with Exhibit 23, was intended to be (and may be regarded as being) two feet wide, allowing some tolerance to accommodate ten bars, and necessarily protruded into the roadway some six inches beyond the line of the standard 18 inch wide concrete gutter. The bars were housed in a concrete “collar” which necessarily protruded a few inches further into what would otherwise be the bitumen surface of the roadway. This had the useful effect of providing a visual contrast of textures and/or colours apt to give a warning to road users of the presence of such a grate, which presents an obvious hazard to some categories of road user, such as persons wearing footwear with stiletto or similar heels or using means of transport with wheels narrow enough to get caught in the gaps of the grate.
- [6]It is convenient to state now my conclusion that the Council should be held liable to the plaintiff on the basis of its action sometime subsequent to the original installation of the grate in resurfacing Old Burleigh Road in such a way as to do away with the useful visual “warning” which was originally there. This conclusion is one reached with some hesitation, because the technique of “feathering” in road resurfacing is an established and sensible one, calculated to prevent the development of a high lip at the extremity of the new bitumen, which may itself be a hazard to road users. Here, the feathering had the consequence that the discontinuity of the line of demarcation between concrete gutter and bitumen road surface constituted by the projecting grate was significantly masked or obscured.
- [7]Both the evidence at the trial and common experience confirm that there is a conflict between what the safety of cyclists may require and what a practical and efficient system of drainage requires. The topic of bicycle-safe grates has been of general concern for some years, and to the defendant Council in particular. It is obvious that the wheels of a bicycle such as the plaintiff’s could get caught in the subject grate, leading to injury to the rider, or perhaps other people. The apparent solution would be to ensure that discontinuities in the trafficked surface running parallel to the line of travel should be short enough to prevent a bicycle wheel’s getting trapped. On the other hand, the evidence of engineers with appropriate expertise in hydraulics (and, in my opinion, common experience) is that any bar or cross-member placed perpendicularly across the flow of water, along a gutter, say, creates a drastic impediment to the water’s passing down through the grate; there is a concomitant drastic reduction in hydraulic efficiency of the drainage system. It is convenient to say at this point that the application of British standards for grates, devised in a land of “gentle rain”, likewise of American standards, devised for roads that do not exhibit the Australian characteristic of a marked discontinuity between the gradients of the road surface intended for traffic and an adjacent “gutter” area are not readily applicable here: it can not be said that failure to comply with them shows or tends to show negligence or any lack of proper care. The evidence amply established that the use of various bicycle-safe grates over gully pits of the kinds advocated by the plaintiff and his witnesses would very likely so severely compromise the efficiency of the water inlet that additional gully pits would require to be constructed, with their own appropriate grates. This case can not be presented as one in which the Council should have spent $300 or so for a better grate at Old Burleigh Road and First Avenue. There is no particular reason why this grate should have been attended to, as opposed to the thousands of similar grates noted in the Council’s inventory. Beyond that, it seems certain that in many, if not most or all of such instances, additional gully pits may have to be constructed, at a cost of some thousands of dollars each. If this were not done, it is easily foreseeable that, at times of heavy rain and runoff, there will be sheets of water on the roads, leading to vehicles “aquaplaning” or otherwise getting out of control and huge potential liabilities in the Council.
- [8]At the time of construction of the gully pit and concrete grate in question (sometime between 1968 and 1975, when Exhibit 24, a plan contemplating further works and their linking up with the relevant gully pit – work never carried out – was designed) the solution adopted was, on all the evidence, both a common and a reasonable one. It is clear, going again on the evidence given and on common experience, that use of bicycles on the Gold Coast has become much more widespread, and that there has been a proliferation of bicycles with racing or narrow wheels. It has not been shown that such wheels were common when the gully pit and grate were constructed. It seems, as a matter of speculation, that the approach then was that cyclists, at least those whose equipment was such as to pose a risk, should not ride over such grates, or in the gutter. There was “expert” evidence from persons connected with cycling that one should not ride in the gutter. The hazards presented by the kerb, particularly one rising vertically, the steeper gradient of the gutter compared with the road, lips or steep edges where the bitumen ends, and, of course, the grates, are perfectly obvious. It is a reasonable assumption that the designers and constructors of the grate thought that cyclists would not be riding across them, certainly not in the direction of the bars.
- [9]As it happens, the defendant Council has actively encouraged the development of cycling. In the year or years prior to the plaintiff’s accident, it published an attractively presented “Guide to Gold Coast Bikeways”, which has been improved, updated and expanded since. It is true that, at the relevant time, the recommended bicycle route to the south along the Esplanade at Surfers Paradise ended at Cavill Avenue, Surfers Paradise, commencing again at First Avenue to the south. Inevitably, cyclists would traverse the link by using the Esplanade, Northcliffe Terrace and its continuation, Garfield Terrace and then, via a short dog leg along Fern Street, Old Burleigh Road. The Council’s reluctance to admit knowledge of frequent use of Old Burleigh Road by cyclists was mystifying. The evidence establishes such use, which the Council should be taken to have known of and encouraged. Mr Plunkett did not present any case based on personal knowledge of the contents of the booklet.
- [10]In the circumstances, the defendant has become committed to bicycle-safe grates. The subject grate would no longer qualify. Nor, intriguingly, does the new concrete grate which has replaced the subject grate in the last year or so: in this one, the gaps are reduced to less than half the former length by the bars widening to their full 2¼ inch width at the centre, so that the overall grate gives the appearance of being made up of two shorter ones. Installation of this replacement grate would not seem to be part of the defendant’s programme to replace grates not complying with its new standards as funds become available in accordance with a set of priorities set out in documentation the Council placed before the Court.
- [11]There was an air of excitement at the beginning of the trial brought about by the Council’s late disclosure of Exhibit 25, a report of 17th June 1991 entitled “Gold Coast City Council Gully Pit Inlets – Designed for combined maximum inlet capacity and bicycle safety”. Its chief author was Mr Cruise, an engineer whose expertise in civil engineering and hydraulics the Court accepts, who was the Council’s chief draftsman. The report explained why there was cause for concern. It cited Australian Bureau of Statistics figures indicating that 90% of all bicycle accidents involved collision with a motor vehicle, 4% “hitting fixed objects such as parked vehicles, power poles, grates etc:
“In 1989/90 only nine persons in the whole of Queensland were reported as injured in bicycle accidents involved in hitting fixed objects.
The Gold Coast City Council has received six claims in three years for persons falling into Council’s grated pits. However in all cases the pits concerned the old concrete bar grates … these are no longer installed and are being phased out.”
- [12]Not all “six claims” were like the present. Only a couple involved bicycles. Nonetheless, the case emerged as one in which an accident of the kind foreseen by Mr Cruise involving a style of grate assessed by him as not safe for bicycles actually happened.
- [13]An intelligent lay person would think such a conclusion rendered the plaintiff’s success certain. The Council is providing for the cycling public a roadway incorporating what it recognises as a hazard. However, as Justice Oliver Wendell Holmes famously put it, the life of the law has not been logic. The Council asserts that it is a “highway authority” liable only if it positively executes works which are shown, according to the standards of the time of their execution, to have been designed or constructed negligently. In an era of rationalisation and simplification of the common law, it is something of a surprise to revisit this subject and to discover that judges still must wrestle with the arcane distinctions developed by English judges in an era when understandable policy considerations were thought to require protection of highway authorities which might be impecunious and of those persons who were charged with determining the authority’s spending priorities from liability for damages suffered by members of the public if a particular highway were damaged or fell into disrepair.
- [14]Perhaps the leading case in Australia is Buckle v Bayswater Road Board (1936) 57 CLR 259. Dixon J, dissenting in the result, said at 280-81:
“The question is whether the road board is under a civil liability to the plaintiff for the particular damage thus sustained by him in consequence of the state or condition of the road. The duty of a road authority towards individual members of the public exercising the common right of passage over the highway has no similarity or even analogy to the duty or duties of occupiers of property to safeguard those who lawfully come upon the premises they occupy from dangers arising from their character or condition. The principles upon which the road authority’s liability, or absence of liability, depends have nothing to do with the ownership or occupation of property or the relation between an owner or occupier and persons whose presence he may solicit or suffer.
…
It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway.
…
A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise any other power belonging to it as a highway authority. It is not surprising that attempts to escape the application of this doctrine should be made and renewed from time to time on behalf of persons suffering personal injury through the defective condition of public highways.”
- [15]This describes the “nonfeasance” in which the defendant takes refuge.
- [16]Among the successful attempts made to escape the nonfeasance rule is the Buckle case itself. The majority considered that the collapsed drain (obscured by luxuriant grass growth) into which the plaintiff fell was something extraneous to the road, indeed, amounted to “artificial works placed there for purposes foreign to the road considered as a highway, such as sewers for drainage of adjoining land and the like”. A highway authority (like the present defendant) which is also an authority for other purposes such as drainage (like the present defendant) may be safe from liability in one capacity, but liable in the other. One wonders whether the time has not come for a different approach. There is something rather quaint in the year 2000 in the prospect of the High Court of Australia in 1936, condemned to wrestle with the plethora of cases, nearly all decided in England, dividing, in what seem straightforward circumstances. The subject road traversed boggy countryside made wet by spring water which rose on adjacent land. Dixon J said at 291-93:
“It is a mistake to suppose that simply because a thing such as a covered drain or gutter is of such a nature that it will, when it falls into disrepair or dilapidation, cause a dangerous condition of the highway, it is incumbent on the road authority which put it there to take active measures to prevent or remove that condition. If the drain or gutter forms part of the road construction and is put there to serve a purpose arising out of its character as a highway, as for example to carry off the surface water, or to drain off seepage and protect the road base, the road authority incurs no civil responsibility by allowing it to fall into a condition of danger, unless in the first instance it acted improperly in placing it there.
…
But on the facts of the case it is, in my opinion, established that the drain was made for roadway purposes and that when the open drain was made originally, when later part of it was converted to an agricultural drain, and when, in 1931, the glazed earthenware pipe was put in, the road board exercised its powers as a highway authority with due care and skill and without negligence in the design or the execution of the work.
…
[T]he evidence itself appears to me to establish that the drains were regarded as necessary to protect the road from water and carry it away and that they served no other purpose. In my opinion the evidence establishes quite clearly that the purpose of the drain was to take away the water which made the soil of the road boggy. … The water from that source as well as ordinary surface water found its way to the roadway, which was low-lying.
…
[I]t remains true that it was an agricultural drain operating to receive and take away the water which otherwise would be retained in the soil of the roadway.
…
Some evidence was given as to the part which surface water, as distinguished from seepage, played in making it necessary to have a drain on each side of the centre way. The distinction does not seem to me to be of any importance.
…
The distinction between spring water and surface water does not seem to me to be of any importance, because the source whence the water got on to the road cannot affect the question.”
- [17]McTiernan J regarded the drain (which collapsed when a State main roads authority (not the defendant in the case) did works to upgrade the road) regarded the drain as not part of the road:
“The earthenware pipe ran underneath the surface of the road but was not a part of the road or of its foundations and in my opinion had the character of an artificial work.” (page 300)
- [18]Latham CJ (page 276) thought the evidence established that the drain, even if it were put down for road purposes, was also put down for ordinary drainage purposes, that is for draining water coming from the springs. He had noted at page 272 that “the same body may be both a highway authority and a drainage authority. Its liabilities in those two capacities are quite distinct.” As a drainage authority, the defendant had the duty to keep the drain “in proper order so as to prevent it from becoming a danger to the public” (page 276). Thus the same authority may have a defence in its capacity of highway authority, but no defence in its capacity as drainage authority. His Honour said at 273, having noted a case relied upon by Mr Cross, White v The Hindley Local Board of Health (1875) LR 10 QB 219:
“Thus in the present case, if the drain pipe was put down both for road purposes and for drainage purposes apart from any considerations affecting the road, the defendant would be liable for damage resulting from proved negligence.
…
In order to determine the applicability of the legal principles which have been stated, it is necessary to ascertain whether the drain was put down merely as part of road work or whether it was a separate artificial structure introduced into a road under a power other than the power to make roads and alter them &c. Upon this point I have the misfortune of differing from my brother Dixon.”
- [19]The headnote of White’s case is:
“As the plaintiff was riding along a highway, under which was a sewer, his horse trod on a grid, or grating, put there to drain the surface-water off the road into the sewer. The grid being in a defective state gave way and the horse’s leg was injured. Plaintiff brought an action against the local board of health of the district, who are the surveyors of the highway, by ss.68, 117, of 11 & 12 Vict. c. 63, and in whom also the sewers are vested under ss.43, 45:-
Held, that, though the defendants might not be liable as surveyors of the highway, they were liable as owners of the sewer, of which the grid formed part, for negligence in not keeping the grid in a proper state.”
- [20]If I may say so with respect, a certain amount of amusement is generated from consideration of some of the older authorities considered in Buckle. Dixon J noted one at 288:
“A remarkable example of the distinction is supplied by Thompson v. Mayor &c. of Brighton [(1894) 1 Q.B. 332]. The defendant was both the road authority and the sewerage authority. The road had been worn down round a cover of a manhole belonging to a sewer. The manhole cover was in itself in good order, but, owing to its projection from the worn surface of the road, was a source of danger which in fact caused the injury complained of. The Court of Appeal decided that the cause of the accident was the failure of the defendant as road authority to keep up the level of the road and for such a failure there was no civil liability. Davey L.J. said:- “What was the cause of the accident? It appears to me … that there can only be one answer – it was the default of the corporation to keep the road in repair.”[(1894) 1 Q.B., at p.343.]”
- [21]While it does not matter for the final resolution of this case, in my opinion the evidence before me leads to the resolution arrived at by Dixon J, namely that the defendant was acting as a highway authority, relevantly concerned to get water which might cause problems off the road, whether the source of that water was rain falling on the roadway itself or rain falling on adjacent land – and to provide an appropriate road surface in the subject area in that context, a surface (probably) necessarily consisting of bitumen traffic lanes, gutters and grates.
- [22]Mr Cross submitted the grate was an artificial structure, not part of the roadway proper, and that the Council had the same duty to take care to prevent it being a source of danger as the owner of private land would have, relying on Grafton City Council v Riley Dodds (Australia) Ltd (1955) 72 WN(NSW) 33, 38. On this approach, even if considered as a highway authority, it came under a duty to act when a danger arose. An alternative argument, of course, was that in respect of the gully pit and grate, the Council was not a highway authority at all. Mr Cross relied much on Desmond v Mt Isa City Council (1991) 2 QdR 482, which calls attention to a well-known passage in the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, at 47:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”
- [23]Desmond may be seen as a helpful case for the plaintiff so far as statements in the judgments tend to dismiss the argument sought to be mounted by the local authority that considerations of cost precluded its being obliged to design a road of higher standard, likewise associated considerations including treating all areas of the city alike if roads were to be upgraded. In the interests of economy, wide unsealed shoulders were left, from which surface waters in time of heavy rainfall carried gravel down an incline to an intersection and tended to deposit it there. A motorcyclist was seriously hurt when he skidded on such gravel. The headnote reads, in part:
“Held …
- (2)that a duty arose in this case because the local authority had permitted sub-division on the basis of a road layout which inevitably had the dangerous features which materialised in this case unless it either sealed, kerbed and channelled the side of a road leading to the intersection or took appropriate steps by warning the public and cleaning the intersection as early as practicable to guard against the hazard.”
- [24]The decision in this respect takes up one of the possibilities of “misfeasance” outlined by Dixon J in Buckle at 283:
“But while a road authority owes to the members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong. It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorized acts when done by a road authority. But a road authority in doing them must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles. These principles include the rule that to render the highway unsafe is to commit a nuisance, and that to execute authorized works without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury. It is evidence that even if what otherwise might be an obstruction or danger is created on the highway, it may be made relatively harmless by the use of some additional precaution, such as guarding or lighting. If the precaution is discontinued, consequences may ensue which up to that time had been intercepted. For these consequences the road authority will be liable in damages. But it will be liable not on the ground that it failed to exercise its powers so as to prevent them, but on the ground that it was the active agent in causing an unnecessary danger in the highway.”
- [25]In this case, the plaintiff is far from showing any actionable want of care in the original design and construction of the grate. This is because it is the standards of that time that are to be applied, as Dixon J made clear at 284:
“The improper nature of the original act of the road authority must always be the foundation of the complaint against it. Cases in which but for continual subsequent safeguards the work actively done by the road authority would make the highway dangerous must be distinguished from the very different class of case in which the operations of the road authority put the highway in a condition perfectly proper and safe, but liable in the course of time through wear and tear and deterioration to become unsafe. Whenever an artificial road surface is provided, neglect to maintain it is likely to result in its destruction by wear and weather. Its last condition may be expected to be worse that its first. But these considerations do not throw upon the road authority which fails to maintain a road any civil liability for the consequences, although at the time of construction they might have been foreseen. If, judged according to the standards of the time and the circumstances then prevailing, the design and execution of the work were not improper or unsafe, the development of a defective or dangerous condition of the highway is to be attributed to the failure to maintain or repair, which involves no civil liability for particular damage. It cannot be regarded as a dangerous condition “caused by,” because necessarily resulting from, the original construction of the roadway.”
- [26]Illustrations which his Honour gave include the use of wood blocks to seal roadways, although it was apparently known the actions of water or underlying pitch or tar might lead the surface to become dangerous in time: it was enough to protect the road authority that an accepted usual method of construction was used.
- [27]Wood blocks played a role in South Australian Railways Commissioner v Barnes (1927) 40 CLR 179, an early High Court decision noted in Buckle but not commented upon at length. It may be thought to deserve some notice because the accident is similar to that which befell Mr Plunkett. The headnote is:
“A line of railway belonging to the appellant ran along a public street. The railway had originally been constructed by a private company, under the authority of a private Act (No. 1 of 1850). By a long series of statutes the authorities, powers, duties and liabilities of the company had become vested in the appellant. In 1922 the roadway between, and for 18 inches on either side of, the rails was wood-blocked by the corporation of the municipality in which the street was situated. This was done at the request and expense of the appellant. A groove was cut in the blocks on the inner side of each rail to take the flanges of the wheels. In course of time the shoulder of this groove became worn away by the traffic on the street, leaving a considerable depression alongside the rail. The wheel of the respondent’s trolly caught in this depression, causing the trolly to skid and collide with a truck standing on the line. The respondent was thrown from the trolly and injured.
Held, that the appellant was liable to the respondent for the damages sustained by him:
By Isaacs A.C.J., on the ground that the appellant had constructed an artificial work in the road which, unless properly maintained, was likely to become a nuisance and that, having the power to repair it, he had allowed it to become a nuisance;
By Higgins and Starke JJ., on the ground that the relevant statutes imposed an obligation on the appellant to repair the wood-blocking between the rails, which he had failed to carry out.”
- [28]In this case, I am not prepared to regard the grate as an artificial structure, independent of the roadway, or to regard the Council’s actions in respect of it as other than those of a road authority. There may be an element in the case of deterioration of the grate, in that photographs taken by the plaintiff some months after his accident suggest that bars of the grate had moved about over the years, creating one or two gaps considerably wider than the designer intended. This does not seem to me a deficiency in the design, along the lines of Desmond; rather it seems a conventional situation of deterioration and wear. It has not been shown that it was one of the wider gaps which caused the accident, in any event.
- [29]The plaintiff’s photographs Exhibits 1 to 8 may be taken as broadly showing the condition of the grate at the date of the accident. In that condition, the “feathering” of bitumen in the course of resurfacing of Old Burleigh Road across the concrete collar of the grate is apparent. This represents a departure from the designer’s apparent intentions in Exhibit 23 and leads to an unfavourable comparison, from point of view of visibility, with the cast iron or steel grate depicted in Exhibit 42G, which has a full concrete collar. No-one knows just when the resurfacing took place. In my opinion it was foreseeable at that time that an accident of the kind which befell the plaintiff might occur; precautions could easily have been taken, perhaps by laying the new bitumen in a different way, perhaps by marking the roadway in some other way, to preserve at least the extent of visual warning of presence of the grate which had been there before. In this respect, the Council, which may be presumed to have done or permitted the work, it being the relevant authority, may be judged guilty of misfeasance as in cases like Riley Dodds or Commissioner of Main Roads v O'Ryan (1992) 78 LGRA 387, on each of which Mr Cross relied.
- [30]Thus, although nothing has been shown against the Council in respect of the original design and construction of the grate and although its “nonfeasance” defence may have proved efficacious had no further work been done, misfeasance is established against it in the way described in respect of subsequent works of uncertain date, doubtless intended to improve the road, which had the effect of making it more unsafe for cyclists who might fail to take proper care for their own safety and ride across it.
- [31]The defendant asks the Court to find contributory negligence in the plaintiff. While it is true that any authority in the position of the defendant must make due allowance for momentary lapses of attention by road users, practical considerations impose limits on what can reasonably be expected of the authority. Thus, in present conditions, it seems impossible to do away with obstacles such as poles placed very close to moving traffic. The same applies to grates, which can hardly be dispensed with. The public interest in requiring all road users, drivers, cyclists, pedestrians, even passengers to take care of their own safety and the safety of others is undeniable. Although the Court can be comfortably satisfied Mr Plunkett broke his neck and suffered the other injuries when thrown over the handlebars of his bicycle when it got trapped in the gutter, he was not able to give the Court much detail about his accident. He surmises that when he looked over his right shoulder to check on the movements of motor vehicles that might be following, his bicycle veered to the left and, for that reason only, got caught in the grate. Mr Cross sought evidence from other cyclists that such a phenomenon happened, but without success. The theory that Mr Plunkett was somehow directed toward the gutter by the painted white line (marking off a parking area) moving right up to the gutter at the intersection, so that the parking area tapered off to nothing, hardly assists Mr Plunkett, in my view. He says he was riding to the left of that line because the traffic was heavy. Mr Hackett did not persist with a technical argument he began to mount based on some traffic regulations in accordance with which, it seemed, Mr Plunkett was obliged to keep to the right of that line; evidence of a number of witnesses established the disposition of cyclists to keep to the left. Mr Plunkett appeared to explain his having to keep further left than he would like in terms of the volume of traffic. I am not sure that this helps him avoid a finding of contributory negligence, even if it does explain what he did. If the volume of vehicular traffic is such as to endanger a cyclist, the answer would seem to be for the cyclist to seek an alternative route, here, along Surf Parade, or alternatively the Gold Coast Highway, or dismount and walk until the traffic clears, if he feels unsafe on the ordinary part of the roadway.
- [32]It is dangerous for cyclists to ride in or near the gutter. Mr Plunkett should not have been doing it. He does not claim he was forced by any specific threatening movement of a motor vehicle to do it. When he did it, he came to grief. This happened on a stretch of road which he knew extremely well. He must be taken to have known of the existence of grates of various descriptions – his case contained varying estimates of a considerable number of such grates in that stretch of road. In my opinion the responsibility of a cyclist to avoid riding across a grate or placing himself in a position where he might, through inadvertence or by being forced to, ride across a grate is a very high one. I think the present grate ought to have loomed larger in his thinking because of its proximity to the (known) hazard to cyclists of Old Burleigh Road traffic turning left into First Avenue. The plaintiff fell very far short of taking the care for his own safety which he could reasonably be expected to take and, in my view, there is the major responsibility for the accident. That responsibility is assessed at two-thirds of the blame, against one-third in the Council.
- [33]The Court reserved questions of the admissibility of the evidence of two “engineering experts” called by the plaintiff. Mr Hackett’s complaint was that the relevant expertise was that of a civil engineer, and, specifically, one with expertise in hydraulics. Both Mr Shepherd and Mr Kenny were mechanical engineers.
- [34]Mr Shepherd works for InterSafe, an organisation which frequently provides reports of engineers or “safety consultants” for use in litigation. Their evidence is commonly received, and may be helpful to a court by assisting understanding of how, for example, forces that do not on the face of things seem great may cause significant injury to a plaintiff who encounters them in the workplace or in some kind of accident. Setting aside Mr Hackett’s somewhat ungenerous attack on Mr Shepherd for his youth (he did not even have his engineering degree when the plaintiff’s accident happened) it was said that his engineering expertise was of the wrong kind. After consideration, I agree with this. The cases discussed above explain why the defendant was justified in calling its expert (civil/hydraulic) engineers, to defend the standards of the Council’s public works by reference to the state of professional beliefs at the time and what they were able to say of their own knowledge in justification of the correctness of those beliefs. There can be no objection, in my view, to Mr Shepherd, after appropriate research, giving evidence of such matters at a time before he was born, but he lacks expertise in those matters himself. When one thinks about it, it is hardly necessary to have professional expertise to unearth the brochures he found (all post-dating the accident, I think), which illustrate bicycle-safe grates that might be preferable to the one installed 20 years or more before the accident.
- [35]The objection to evidence along the lines of Mr Shepherd’s explaining the accident used to be that it involved swearing to the issue for the Court, or, alternatively, was simply stating the obvious. In this case, I think it is obvious what will happen if a bicycle with a narrow wheel is ridden over a grate such as the one in question. There seems to me no need (or indeed room) for a purported “expert” to explain the accident in terms of Mr Shepherd’s “features”:
- “ a road grate was present in the path of travel of the bicycle;
- the bars of the road grate were longitudinal (or parallel) to the direction of travel;
- the gap between bars on the road grate (and likely between the grate and road) were of sufficient size to allow the bicycle wheel to fall through;
- there were no lateral or other bars to reduce the tyre penetration distance;
- the bicycle tyre penetrated a distance significantly exceeding the 5mm maximum required by the relevant Australian Standard.”
- [36]I do not wish to be critical of Mr Shepherd who, obviously, did his best when asked to provide the report. However, everything he says is so obvious as not to require the cachet of coming from an expert. I do not think any intelligent layman would have too much difficulty finding the relevant Australian Standard which, in any event, was not in existence when the subject grate was constructed. As Mr Hackett pointed out, Mr Shepherd’s list of essential or contributory features does not contain the primary one, that Mr Plunkett was a cyclist not looking where he was going. The expedient was resorted to of Mr Shepherd’s evidence being taken and placed on the record, in case it should be held admissible. My conclusion is that it is not admissible, because there is no relevant field of expertise in which he is an expert.
- [37]Mr Hackett made a similar complaint regarding the evidence of Mr Kenny. While the foregoing considerations apply to him as well, he happened to have expertise of another kind, which, in my opinion, qualified him to give expert evidence. He is trained as a mechanical and electrical engineer, also qualified in traffic engineering, who had done only basic study in hydraulics. He had in fact designed some drainage systems installed on private industrial land, as opposed to roadways. More importantly, in a responsible position with the Royal Automobile Club of Queensland, he had a professional interest over a number of years in traffic safety, soliciting information about unsafe road conditions through the association’s newspaper “The Road Ahead”. He investigated many accidents. As it happened many of the safety concerns emerging related to the safety of cyclists. I think that Mr Kenny developed genuine expertise in this way and that his evidence, if only as “survey” evidence of the kind accepted in courts nowdays, should be received. In the course of his employment with the RACQ, he officially conveyed concerns for cyclists’ safety to the Brisbane City Council and to the Local Government Association. While his expectation may have been that the defendant would have learned of concerns passed on to its association, it was not proper for the Court to make that assumption. In the end, it could not be shown that when the relevant gully pit and grate were constructed, the knowledge or approaches Mr Kenny had were universal or general. Indeed, he conceded that his evidence was given from the standpoint of bicycle safety. There are other standpoints. Although it may not have been acted on ultimately by the Court, the evidence of Mr Kenny from the witness box was impressive evidence. I rule it was admissible.
- [38]It follows from the foregoing that the plaintiff ought not to recover any costs connected with Mr Shepherd’s reports. From my point of view, Mr Kenny’s report is in a different situation.
- [39]The final comment I wish to make concerns the plaintiff’s action in tendering Exhibit 18, a certificate of his solicitor’s having explained the duty of disclosure. The certificate was in Form 24 and was said to be required under rule 226 of the Uniform Civil Procedure Rules which does indeed require that “the solicitor having conduct for a proceeding for a party must give to the Court at the trial” such a certificate. I apprehended that the tender was a gesture to highlight complaints regarding the defendant’s disclosure, but was told (and inquiries of other judges tended to confirm it) that there is a practice developing of tendering such certificates. By the end of the trial, the defendant reciprocated. Since the trial, I have had further experience of the tendering of a Form 24. In my opinion, notwithstanding the mandatory language of rule 226, what is required is no more than that the certificate be available to be given to the court at trial if anyone wants this to happen, either the Judge or Magistrate or another party. I can see no point in cluttering the Court’s record by such documents, if no-one has any interest in this happening – against the tendency of the UCPR to reduce what must go into the record.
- [40]I turn to assessment of the quantum of the plaintiff’s damages.
- [41]The neck injury was a serious one, comprising a Jefferson’s fracture of C1 which is equivalent to a burst fracture and an associated fracture of the lateral mass of C2; there was also a compression fracture of T5 and T6. The plaintiff was totally immobilised for two months as his general practitioner Dr McKenzie reported on 13th January 1996; this inevitably led to stiffness and loss of muscle bulk and strength, necessitating a good deal of exercising, including swimming for mobilisation and strengthening, “a slow and painful process.” At the time of the report the plaintiff was still suffering headaches, and stiffness and pain at the top of his back. Although (in line with other evidence) it may be accepted the fracture successfully reunited after six months, it is clear that the associated soft tissue injury would take longer to resolve. Dr McKenzie predicted some residual disability and the likelihood of long term complications of osteoarthritis and cervical spondilitis. For some reason, the parties did not wish the Court to have regard to reports by the treating orthopaedic surgeon, Dr Scott-Young, which were included in Dr McKenzie’s file, an exhibit before the Court. Dr Pentis was engaged to provide medico-legal reports, the later of which, following examination on 25.2.97, ventured the following comment:
“The gentleman has sustained injuries to his body in the stated accident. The fractured wrist appears to have healed to a reasonable degree but has left him with some weakness and some decreased flexion.
Further treatment for this would be to accept it as it is. It is not warranted to operatively explore it as it may not improve its overall functioning.
He has been left with a residual weakness which would approximate a 7.5% loss of the efficient function of the upper limb on the affected side.
As to his cervical spine, here he has had fractures involving C1 C2 and has been left with an incapacity in this region. There are no signs of instability at present so no operative treatment is required.
Long term the problem is that he may develop some degeneration in the area and if such is the case then treatment may be necessary down the line. He is currently 36 years of age. It’s unlikely to see problems before he is 50 years, if he continues in a normal vein.
The problems I envisage with his work activities – he’s probably best advised not to carry out any heavy lifting type work or repetitive stressful overhead work as this will tend to aggravate the area further.
The incapacity that he has in his neck at present is approximately a 15% loss of the efficient function of his spine as a whole. It may degenerate to as far as a 20% loss of the efficient function of his spine as a whole.
If operations are required in the future for the C1 C2 region, costing for such a procedure would be in the vicinity of $7500 with a recovery period of at least nine months to a year.”
- [42]The plaintiff’s solicitors referred him to Dr White, a year later. His opinion was:
“This man suffered a number of significant injuries consistent with the history given. His only residual complaints relate to the injuries of the cervical spine.
In view of the elapsed time since injury I would regard his condition as stable and stationery and consider that he has suffered a ten per cent (10%) whole person impairment as a consequence of the injuries to this cervical spine.
A further whole person impairment of five per cent (5%) appears reasonable to the combined effects of the thoracic fractures, the fractures of the right wrist, the dental and mandibular damage.”
- [43]Fortunately for the plaintiff, he seems to have improved considerably by the time of Dr White’s examination, which was confirmed by a further examination on 1st November 1999 when the plaintiff apparently said that he had “if anything, got worse”, was suffering aggravation of neck pain by his farming activities or attempts at physical training; he complained of headaches on average about twice a week. Dr White confirmed his previous opinion, adding:
“I would regard him as permanently unfit for work involving heavy physical labour or duties necessitating maintenance of the head and neck in fixed positions for extended periods of time.”
- [44]Surgery as recommended by Dr Pentis seems most unlikely to become necessary. Indeed, the plaintiff’s present attitude is one of disinclination to undergo surgery.
- [45]An orthopaedic surgeon who examined Mr Plunkett and gave evidence for the defendant was unimpressed with him, considering that he should be treated as having recovered after about six months when the fractures healed.
- [46]The Court assessed the plaintiff as an honest and genuine witness, although one who was not always able to be helpful or responsive. In a way, the use of a “quantum statement” in his interests backfired, the document containing some material easily demonstrated to be wrong. Mr Plunkett has, in addition, given conflicting accounts as to whether he was conscious throughout after his fall, so as to be capable of taking in his efforts to struggle off the roadway and being collected by the ambulance, for example. He must be assessed, however, as essentially a credible witness. His complaints regarding his disabilities since the accident were borne out, indeed strengthened, by Mr McGuirk, an impressive witness. The two have been friends since schooldays in Albury, where they ran a successful windscreen fitting business together for a few years. They moved to Queensland more or less at the same time. Mr Plunkett moved in with Mr McGuirk and the latter’s girlfriend so they could provide him with accommodation and care after his discharge from hospital. (The evidence at one point named another couple as the first carers.) Some time afterwards, they moved to the Bundaberg area, where the two men purchased a farm together; on it they have attempted to grow small crops such as squash and eggplant, with limited success. Mr McGuirk undertook a good deal of security work in the town. In fact, he is now back on the Gold Coast, having returned to employment with the Southport Australian Rules Football Club in a more responsible position than the “security” one he used to hold there. It seems the farm may soon be sold. I accept Mr McGuirk’s evidence that, although the plaintiff helped with work on the farm, and associated work such as a couple of kilometres of fencing and addition of a verandah to one of the houses on the farm, the heavy tasks have fallen to Mr McGuirk. While the plaintiff is able to do some physical work, including the picking of produce for some hours at a time on the appropriate days, his contributions are somewhat sporadic.
- [47]It is clear the plaintiff could do light work. One of the medical witnesses approved taxi driving, although that is not something the plaintiff has evinced any interest in, he suggesting he might engage in tractor driving, which, apparently, he does on the farm; the medical evidence is that this seems inappropriate, given the extent to which the driver of a tractor will be engaged in tasks necessitating turning to look over his shoulder.
- [48]The plaintiff asserts he has followed an exercise regime (reported to some of the doctors as “physiotherapy”) since the accident, in order to get and stay fit. It seems to me broadly similar to the one he said he was following in an attempt to “get fit” so that he could engage in security work alongside Mr McGuirk over the year or more preceding the accident. Given the plaintiff’s advancing age, it does not seem to me he is precluded from recreational type physical activities he might have engaged in if uninjured. Some of these may now bring him some discomfort.
- [49]He faces the embarrassment of an unusually poor working history in the years leading up to the accident, which severely reduces his past and future economic loss. Although on the medical evidence his earning capacity has been impaired, the record makes it impossible to find that Mr Plunkett would have utilised his earning capacity, assuming it to be unimpaired, to any great extent. After leaving school, there was a reasonable employment record and, as noted, participation in a successful business. One wonders whether the plaintiff himself appreciates how unimpressive is his working history. He was inclined to describe himself as working as a “roadie” for Rodney Rude when injured. The truth is that such work, which lasted a couple of months and no more, was completed the year before. Mr Plunkett set great store by a period of highly paid employment in a construction project with Ralph M Lee. Once again, that employment was over within a couple of months. It had become not unusual for the plaintiff to have no employment for as much as eight months or a year. He has done other things, such as construct a mudbrick home for himself (in the South) with considerable help from siblings in his large family, and made money from an investment property. For a time he “lived on the interest”.
- [50]He says, and is corroborated by Mr McGuirk, that he had plans to “get fit”, so that he could undertake security work. This process took more than a year, in the course of which no steps were taken for Mr Plunkett to undertake the very brief “course” necessary for registration or licensing to do security work in Queensland. The Court was told that Mr Plunkett had got overweight, and out of condition, and shed 12 kilograms under the exercise regime being supervised by Mr McGuirk. It was, in fact, in the course of the cycling part that the injury is said to have happened. While I accept that probabilities are Mr McGuirk would have organised employment in security for the plaintiff had he been motivated and ready to take it, I feel driven to regard this project as, in reality, something of a pipe dream. I do not think the chances of the plaintiff, if he had remained uninjured, taking it up were very great. Further, he indicated that this security work was only ever to be pursued for a few years, with a view to building up a fund to buy a better farm – although Mr Plunkett, for his part, was very happy with the one found at Yandaran, near Bundaberg.
- [51]It is not only Mr Plunkett’s inability to convince the Court of his determination to be actively engaged in employment that leads to discounting of the provision that should be made for impairment of his earning capacity. Allowance has to be made for other vicissitudes that might disrupt employment. Mr Plunkett confirmed a number of motorcycle accidents resulting in broken limbs in his younger years, about which he told Dr Pentis. Much more recently, he was injured (fortunately less seriously) when he “rolled” his four wheel drive vehicle while returning from a visit to his girlfriend.
- [52]Mr Hackett has agreed with the plaintiff’s claim for special damages of $8,306.95, which I propose to round up to the next dollar and on which interest is not claimed by Mr Cross – also to a Griffiths v Kerkemeyer claim of $2,725.00 which should carry interest. I assess general damages at $27,500.00 and allow interest on $12,000.00 for 4½ years of $1,080.00. Past economic loss is fixed in a global sum of $10,000.00, with interest (at 5%) of $2,250.00. Impairment of earning capacity is allowed in a global sum of $30,000.00. Loss of past superannuation entitlements will be $600.00, loss of future entitlements $1,800.00. For Griffiths v Kerkemeyer including interest $3,000.00 is allowed. The amount of special damages is indicated above. The total of those sums is $82,537.00.
- [53]Having regard to the Court’s view that Mr Plunkett should be regarded as two-thirds to blame for the accident, the judgment sum reduces to $27,512.33.
- [54]It appears the plaintiff ought to have judgment in that sum, with costs to be assessed. The parties will have the opportunity to submit for different orders after considering these reasons.