Supreme Court New South Wales

• Medium Neutral Citation: Pillinger v Lismore City Council [2014] NSWSC 447
• Hearing dates: 2 - 6, 9 - 13 July 2012; 3 - 7, 10 - 11 December 2012
• Decision date: 16 April 2014
• Jurisdiction: Common Law
• Before: Button J

Decision

(1) Judgment for the plaintiff against the first defendant and the third defendant in the sum of $1,170,000.

(2) Contribution in the liability pursuant to order 1 at 60% in the case of the third defendant and 40% in the case of the first defendant.

(3) Judgment for the first defendant against the third defendant on the cross-claim of the first defendant.

(4) Dismiss the cross-claim of the third defendant against the first defendant.

(5) The parties are to formulate draft orders, as necessary, further to the above orders, and in accordance with my reasons for judgment.

(6) The parties are to formulate draft orders with regard to costs and other ancillary matters in accordance with the above orders.

(7) The parties have liberty to approach my Associate in order to obtain a date for the determination of the further orders referred to in orders 5 and 6.

• Catchwords: TORTS - negligence - motorcyclist injured after driving over loose material on newly resurfaced road - whether parties responsible for conducting roadworks negligent - application of Part 5 of the Civil Liability Act 2002 - cross-claim between defendants - interpretation of contract - contributory negligence - contribution between defendants pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946.
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5E, 5D, 5F, 5H, 42, 43A, 45; Evidence Act 1995 (NSW), s140; Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5; Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)(b)
• Cases Cited: Australian Broadcasting Commission v Australian Performing Rights Association Ltd (1973) 129 CLR 99; Benic v New South Wales [2010] NSWSC 1039; Bitumen and Oil Refiners (Aust) Ltd v Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512; Commissioner for Government Transport [1955] HCA 1; 92 CLR 200; Council of the Shire of Wyong v Shirt and Others (1979) 146 CLR 40; Erect Safe Scaffolding (Australia) Pty Ltd v Sutton and Another [2008] NSWCA 114; 72 NSWLR 1; Firth v Latham & Ors [2007] NSWCA 40; Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151; Jones v Dunkel [1959] HCA 8; 101 CLR 298; North Sydney Council v Roman [2007] NSWCA 27, 69 NSWLR 240; Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; 59 ALJR 492; Roads and Traffic Authority of NSW, Council of the Shire of Evans and Pioneer Road Services Pty Ltd v Palmer [2003] NSWCA 58; Roads and Traffic Authority of NSW v Dederer (2007) HCA 42; 234 CLR 330; Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360; Short & Anor v Barrett (New South Wales Court of Appeal, 5 October 1990, unreported)
• Category: Principal judgment
• Parties: David Pillinger by his tutor Helen Pillinger (Plaintiff); Lismore City Council (First Defendant); Bitupave Limited (t/as Boral Asphalt) (Third Defendant)
• Representation: Counsel: R W Seton SC, F Austin (Plaintiff); R S Sheldon SC (First Defendant); M T McCulloch SC, R Gambi (Third Defendant); Solicitors: Shanahan Tudhope Lawyers (Plaintiff); DLA Phillips Fox (First Defendant); Davidson Gerathy Lawyers (Third Defendant)
• File Number(s): 2009/333088

Judgment

Issue

1 At about 4 PM on 22 January 2006, Mr David Pillinger ("the plaintiff") was riding his motorcycle in a northerly direction on Blue Knob Road. He had lunched in the township of Nimbin in the Northern Rivers of New South Wales, having travelled on the same road from the north earlier that day. He came off his motorcycle and suffered serious injuries.

2 The primary issue for determination by me is whether Lismore City Council ("the Council)" or Bitupave Limited trading as Boral Asphalt ("Boral") (or both) are liable in negligence to the plaintiff; and, if so, to what degree (including consideration as necessary of contributory negligence). The secondary issue is to determine, if necessary, two cross-claims between the two defendants.

3 The parties helpfully agreed that damages, if negligence is established, and leaving aside contributory negligence, should be in the sum of $1.3 million.

Undisputed facts

4 A number of facts are not in dispute, and can be stated chronologically.

5 The plaintiff was born in July 1956, and was aged 49 years at the time of the accident.

6 At the time of the accident the plaintiff had been, for many decades, a motorcycling enthusiast. He was a very experienced rider. He had a number of convictions for speeding recorded against him.

7 The Council was incorporated in 1976.

8 In June 2005, Boral submitted a tender to the Council by way of letter in response to a request for provision of sprayed bitumen surfacing works on a stretch of Blue Knob Road between 6.1 km and 6.5 km north of the township of Nimbin.

9 On 21 July 2005, by way of letter, the Council accepted the tender from Boral.

10 From 25 November 2005 to 16 December 2005, the Council did work on the stretch of road in question. The pre-existing surface was removed, and roadbase in the form of crushed basalt and other rocks was laid down. The new road surface was graded and compacted, and concrete and water was applied to create a hard surface. A pre-existing table drain on the eastern, higher side of the road was not upgraded.

11 On 17 December 2005, Boral began work on the same stretch of Blue Knob Road. As a first step, a rotary broom was used to sweep the road surface in order to remove loose material. A new bitumen surface was applied to the road. Thereafter 14 mm aggregate was laid into the bitumen. It was then compacted with a roller. Finally, Boral swept excess aggregate from the road surface using a rotary broom.

12 The road was opened to traffic without lines marked on the road. Nor were any warning signs erected about the fact that there had been new work done, or to suggest that there was any loose material on the road. The speed limit on the stretch of road was 80 km/h.

13 On 18, 19 and 20 January 2006, there was very heavy rain in the Lismore area, even taking into account the context that the Northern Rivers area of New South Wales often experiences heavy rainfall in summer.

14 On Sunday, 22 January 2006 at about 8 AM, the plaintiff rode with a group of approximately 20 fellow motorcycling enthusiasts from Queensland to New South Wales. The plaintiff was driving a powerful 1200 cc machine. In due course, all of the motorcyclists passed over the stretch of road in question in a southerly direction without incident. They enjoyed a lunch in a hotel in the township of Nimbin. The plaintiff did not drink any alcohol at lunch. After lunch the plaintiff farewelled his companions and arranged to meet them in the Queensland town of Beaudesert, where he was proposing to refuel. The plaintiff overtook fellow riders Mr Michael Humberdross and Mr John Gillies 5 or 10 minutes after leaving Nimbin.

15 Whilst travelling north on the stretch of road, over an uphill gradient, the plaintiff lost control of his motorcycle and became separated from it. It ended up on its side and was damaged. The plaintiff was found lying on the road. Investigations over the subsequent years showed that he had suffered many severe injuries. No-one witnessed the accident and the plaintiff has no memory of it.

16 A number of persons attended the scene that day very shortly after the accident occurred. Among them were members of the group of motorcyclists who had been travelling behind the plaintiff, including Mr Humberdross and Ms Jane Taylor. All of them passed over the stretch of road without incident as they approached the plaintiff. They attended upon him. They also made observations of the state of the road.

17 Ms Anne Stevenson, a resident of 30 years who lived in close proximity to the scene of the accident, also saw its aftermath.

18 Detective Sergeant Gary Acton attended the scene, and made a number of observations. He made an entry in his notebook and also created a COPS record in the police database.

19 The wife of the plaintiff, Mrs Helen Pillinger, and her son Mr Michael Pillinger were informed of the accident by police. They visited the plaintiff in hospital in Lismore. Before 8 AM the next day, Monday 23 January 2006, they attended at the scene and made observations and took photographs.

20 On the same day, Ms Stevenson made a report about the state of the road to the Council. A Council worker created a document as a result.

21 On Thursday, 26 January 2006, Mrs Pillinger and Michael Pillinger visited the scene again.

22 Over the intervening years, the plaintiff received a great deal of medical treatment and assessment.

Resolution of disputed facts

23 I turn to determine a number of facts that were in dispute between the parties. In order to provide comprehensible context, some undisputed facts will be included. All disputed matters with regard to which I express my satisfaction have been established on the balance of probabilities, pursuant to s 140 of the Evidence Act 1995 (NSW).

24 Before embarking on that exercise, I should mention that a number of reports of experts were tendered, and there was a degree of oral evidence from them in conclave. However, that process was cut short with the consent of all three parties. By the time of the preparation of written submissions and the addresses, the expert evidence received little emphasis, except with regard to the speed at which the plaintiff was travelling at the time of the accident. For that reason I will not engage in a detailed discussion of the evidence of the experts.

(i) What was the state of the stretch of road?

25 The road was gently curving. As one travelled in a northerly direction it had an uphill gradient. It was paved and, although unmarked, had one lane travelling north and one lane travelling south. The eastern side was somewhat higher than the western side. Neither side had a concrete kerb and gutter. To the eastern side of the road was a table drain.

26 Mr Humberdross said in his statement:

"I recall that around the accident site the whole road surface was covered with loose bitumen and gravel. It was not a smooth mix.

There was also a particular accumulation of gravel in one area further back down the road near a bend.

At that point I saw marks in the gravel." (Exhibit M)

27 In his oral evidence, Mr Humberdross said that there was gravel "for maybe a couple of ks ... it wasn't just that area. It was like a newly laid road" (TT 322.46). He recalled being able to hear that there was loose gravel on the road when walking or riding over it (TT 326.18). He said that "in that one particular area there was a build up of a larger amount of loose bitumen and gravel that had ... accumulated in that one particular spot" (TT 323.27).

28 Mr Humberdross observed a large gouge mark "in the middle of the build up of gravel and bitumen" (TT 331.43) where "the build-up of loose bitumen and gravel had been ... taken down to the lower surface of the bitumen" (TT 328.10). He estimated that this gouge mark was approximately 100 metres south of the plaintiff's motorcycle's final resting spot (TT 328.21). He described the "marks in the gravel" he referred to in his statement as where "something had removed the gravel in the centre and left all the gravel around it" (TT 320.44). Mr Humberdross explained that what he labelled "gravel" was "greyish-brown" in colour and was "anything that has been washed onto the road as well" (TT 331.42). He described the "bitumen" as being the same colour as the road (TT 331).

29 Ms Taylor, who was a pillion passenger on her then-husband's motorcycle, said in her evidence that as she dismounted from the motorcycle to attend to the plaintiff she noticed "that the gravel on the road was not secure at all, it was loose" (Exhibit N; TT 347.40). She described the bitumen as "sticky" (Exhibit N), and recalled that it stuck to her clothes and shoes (TT 348.10). She said that walking on the road surface "was like walking on marbles. You could feel it moving under your feet" (TT 348.23). She said "The gravel and bitumen to the edge of the road was far looser than the amount in the middle of the road" (Exhibit N).

30 Ms Taylor observed one mark on the road to the south of the plaintiff's motorcycle where it appeared that "the gravel had been brushed away" (TT 348.48). She described this mark as "probably only a patch" (TT 349.1), and (at least initially) described the gravel in the vicinity of this mark as being a different colour to the road surface, namely brown (TT 349.47- 355.41). During cross-examination Ms Taylor could not recall whether the mark was in a patch of different coloured gravel (TT 356).

31 Detective Sergent Acton gave oral evidence about his attendance at the scene of the accident soon after it occurred. He said that after walking from the plaintiff's motorcycle in a southerly direction along Blue Knob Road he saw "the marks of a wheel imprint in some blue gravel" (TT 130.25). He estimated that the depth of this gravel was "[a]bout an inch" (TT 130.48). He agreed that this was a present recollection, and he had not made a contemporaneous record about the depth of the gravel (TT 140.4). From this point, heading back north towards the plaintiff's motorcycle, he observed "an impression of a tyre mark and it fishtailed, as in zigzagging like a snake trail for a ... distance ... of approximately 30 metres" (TT 131.12). Commencing a short distance from this tyre mark, Detective Sergent Acton observed "scrape marks on the road surface" that "continued for another 36 metres" and "stopped at the motorbike's place of rest" (TT 132.17-132.26).

32 Detective Sergent Acton's notebook entries and a COPS entry regarding the accident were also admitted as evidence (subject to an excision as a result of objection). His notebook entry records:

"GRAVEL ON ROAD

30 METRES NORTH

DROP BIKE

THEN 36 METERS TO

RESTING PLACE" (Exhibit K)

33 Ms Stevenson, the resident, gave evidence that immediately after the time of the accident she was aware of a "band of material composed of soil, sand, leaf matter and blue metal gravel lying across the road" (Exhibit BR; TT 729.50). She described the surface of the road as "in excellent condition" (Exhibit BR), and stated that "[the road] was great it was well made" (TT 756.23). She had "absolutely" no difficulty walking on the road surface (TT 770.30).

34 Ms Stevenson said that following a severe storm in the days before the accident "[d]isplaced leaf litter, twigs, etc had clogged the drain at one spot" (Exhibit BR). She said that after the storm, but before the accident, she had noticed material spread across the road from this clogged drain that "appeared to be sandy soil with blue metal gravel in it and that gravel resembled the initial lining of the drain just after construction"(TT 767.26). She explained that "the soil was brown [and] the gravel was charcoal in colour" (TT 760.6). She estimated that this blue metal gravel was approximately an inch in size, and was twice the size of the aggregate used by Boral (TT 768.10-769.14).

35 In her statement, Ms Stevenson said:

"In the day or so before the accident I had travelled over this band of materials in a car and felt a bit of a hump as I went over it. I did not think it presented a traffic hazard for me." (Exhibit BR)

36 Mrs Pillinger gave evidence of the observations she made the next day. She said that there was a "large amount of gravel and soil" on the "black shiny surface" of the road (Exhibit H). She said, "if you moved your foot around the road, the gravel would move" (TT 193.19), and she noticed that "blue metal and tarry" was stuck to her shoes when she left the accident site (TT 113.10). She said in her statement:

"From where the motorbike debris was located, back in a southerly direction, I noticed a combination of soil, which was the general colour of the nearby dirt embankment, blue metal and some organic matter ... was lying in a general diagonal spread across the width of the road.

From where that material lay on the road back in a northerly direction towards the motorbike debris, I saw some scuff marks and a gouge in the road surface and together with blue skid marks [sic]." (Exhibit J)

37 Mrs Pillinger said in her oral evidence that the material on the road was "scattered in different sections" (TT 105.20) and was "in patches" (TT 106.44). She estimated that it covered "an area of probably 3 metres" measured longitudinally along the length of the road (TT 106.23).

38 Michael Pillinger, who visited the accident scene with his mother on the day after the accident, also observed that there was a "band of gravel" south of the place where the plaintiff's motorcycle ended up. In his statement he said:

"I recall observing a fairly thick band of gravel, i.e. blue metal, about 450mm wide spanning the whole way across the road on an open corner. By 'thick' it varied between 20 and 30mm in height... It was mixed with a bit of dirt or mud." (Exhibit L)

39 In his oral evidence Michael Pillinger described this band as "a major wash of gravel", and identified this as "the starting point" of the accident site (TT 215.35).

40 A few metres north of this band of gravel Michael Pillinger observed "what appeared to be quiet [sic] a deep gouge mark in the bitumen surface" (Exhibit L). To the north of this band he observed "a number of smaller gouges, more like scrap [sic] marks in the road" (Exhibit L). He said that "the gravel was loose across the distance of the accident site" (TT 215.35), and that he could feel the loose gravel underfoot when walking on the road surface (TT 215.44).

41 A number of photographs were tendered in evidence. I have borne in mind the caution that one should adopt as the tribunal of fact with regard to reading too much into photographs (see Meagher JA in Short & Anor v Barrett (New South Wales Court of Appeal, 5 October 1990, unreported)), especially those that are not of great clarity. But it can be said that, at the least, they show a brown discolouration crossing the road at a diagonal angle: see, for example, Exhibits 7G-H and 9.

42 With regard to the determination of the factual question as to what was on the road, the Council and Boral placed a great deal of weight on the evidence of Ms Stevenson. That was founded on the fact that she was a scientist, had lived in the area for thirty years, and had a good chance to make observations when she walked her dogs along the road regularly. But whilst I consider that she was an important witness, I consider that her evidence must be taken into account along with the evidence of every other witness. I do not consider that her evidence somehow "trumps" the evidence of all of the other witnesses. In particular, it is noteworthy that her statement was made on 22 November 2012. In the circumstances, I do not consider that her description of the size of the items that she saw on the road should be regarded as conclusive.

43 I consider that the written, oral, and documentary evidence establishes that there was a substantial amount of loose gravel on the road. (I shall deal later with the question whether it was excessive, or whether it was inconsistent with the usual practice of Boral.) There was also a brownish swathe across the road made up of dirt, organic material such as twigs and leaves, roadbase, and aggregate in the form of gravel. As for the roadbase being part of that swathe, the evidence of the witnesses who examined the road after the accident does not support that particular finding. However, for reasons that I shall explain in a moment, the evidence of Mr McPherson and Mr McDonnell does.

44 Finally, Boral contended that the failure of the plaintiff to call more of the touring party could be used against the plaintiff with regard to the state of the road, by way of the well-known doctrine in Jones v Dunkel [1959] HCA 8; 101 CLR 298. I do not accept that submission. The plaintiff placed a large amount of evidence before the Court with regard to the state of the road. The fact that there may well have been other persons who could have said something about the state of it does not lead me to infer that the evidence of those persons would not have assisted the plaintiff.

(ii) How did the material get on the road?

45 Mr Jeremy McDonnell, former contracting supervisor for Boral, Mr Shane McPherson, the on-site supervisor from Boral, and Mr Robert Matthews, the site supervisor from the Council, gave evidence about the roadworks carried out on the stretch of Blue Knob Road in the months before the accident. Most of this evidence concerned the general procedures followed by the Council and Boral when carrying out this kind of work.

46 Mr Matthews explained that the roadbase prepared by the Council consisted of "crashed [sic] rocks", including sandstone and basalt (TT 787.20). He also said that the old road surface could be crushed up and used under the roadbase (TT 804.8).

47 Mr Matthews gave evidence that when creating a roadbase prior to resealing, the Council would not create windrows (that is, a row or line of material that has been raked or swept together) on both sides of the road (TT 808.5). In his statement, he said, "by the end of the stabilising and grading [i.e. at the conclusion of the Council's work] there are no windrows left" as any windrow created is "levelled out to the shoulder of the road where it is rolled and compacted" (Exhibit 33). Further, he stated that when carrying out roadworks neither the Council nor Boral would grade the road surface or sweep excess materials in such a way that it would create a windrow on the high side of a rural road, as that would impede drainage (TT 814.41; Exhibit 33). His evidence was that the angle of the blade of the grader would be adjusted on each pass to ensure that excess material was always swept to one side of the road (TT 806.50 - 808.26).

48 With regard to Boral's usual practice, Mr Matthews stated:

"When I observed Boral sweeping a road after aggregate was sprayed, I observed they did so until a windrow formed. The windrow was then either picked up by hand or removed using shovels or brooms. It was not left in a windrow. It was feathered out past the shoulder, at least a couple of metres past the edge of the seal and on every occasion when I have seen it done the material will be swept to the downhill side of the road." (Exhibit 33)

49 During cross-examination, Mr Matthews gave evidence that after roadworks are fully completed, it is ordinary practice to use moving traffic to continually impress the aggregate into the bitumen (TT 793.30). He agreed that it is normal for a small amount of aggregate to become dislodged by vehicle movements, and for traffic to create a windrow of aggregate (TT 793.36; 823.37). He said that "under some circumstances", if the bitumen becomes unusually cool in the first week or two after a job, the aggregate does not embed properly in the bitumen. Tyres travelling over the new road surface will then "[pluck] the stone out and it can cause a windrow." Mr Matthews put forward "heavy rain" and where the road is "through shadows and what not" as examples of circumstances in which this so-called "stripping effect" can occur (TT 823.41-824.14).

50 Mr McDonnell and Mr McPherson, the two employees of Boral, gave evidence that after the Council had completed preparing the roadbase a windrow of that material would be left along both sides of the road. These windrows were added to by Boral workers, who used a rotary broom to sweep the road surface prior to applying the bitumen, and after the aggregate had been laid and compacted. Accordingly, when Boral finished work on a stretch of road there would be a windrow on both sides of the road comprising roadbase and aggregate (TT 838.40 - 839.44; TT 859; Exhibit 36). It can be seen that this evidence directly contradicted the evidence of Mr Matthews in a number of ways.

51 Mr McPherson of Boral specifically recalled that there was a windrow on the eastern side of Blue Knob Road at the completion of the 2005 roadworks (TT 873.10).

52 Mr McDonnell gave evidence that it was normal practice for Boral workers to sweep or "feather out" such a windrow beyond the finished surface of the road (TT 851.44). However he also stated that to avoid sweeping aggregate into a nearby table drain, aggregate would be left in a windrow (TT 844.41). Mr McPherson gave evidence that there was "no possibility" that Boral employees on the Blue Knob road works removed the windrow with shovels, or swept it out further towards the table drain with brooms (TT 865.46). He stated that it was ordinary practice for the Council to "knock off the windrow" after removing the pegs that marked the boundary of the work (Exhibit 36).

53 It can be seen that there is a clear contradiction on the evidence about whether or not there was a windrow on the eastern side of the road that requires resolution by me on the balance of probabilities.

54 I am satisfied that the Council did leave a windrow on the eastern side of the road when it completed its work. I am also satisfied that when Boral completed its work it left a windrow there that was feathered to some degree and that comprised roadbase and aggregate. I shall return to the question of who feathered it later in this judgment. I have come to that view for the following reasons.

55 The Council submitted that I would have to be satisfied "to the Briginshaw standard" that the evidence of Mr Matthews was false. I do not accept that proposition. I note that Mr Matthews had been medically retired some years ago. It is possible that he is mistaken in his recollection as to how the Council went about its roadworks. It is also possible that he is seeking to protect himself, or another worker, or the Council, in light of what has happened. I need not come to any affirmative position about those matters. Nor do I rely on Jones v Dunkel in coming to that view, contrary to the submission of the plaintiff about the absence of evidence from any other Council employee (PWS at [95]). It suffices to say that on the unequivocal evidence of Mr McDonnell and Mr McPherson I accept that it was the practice of the Council to leave a windrow of excess roadbase on both sides of a rural road, and that that procedure was adopted in this case.

56 In short, I find that after the works were completed, there was a windrow comprised of roadbase from the Council and aggregate from Boral on the eastern side of the road.

57 I consider that I should also determine the degree to which that material was "feathered out" (that is, distributed to the east so that the windrow was flattened) at the end of the works, and by whom.

58 The evidence on this question was a little unclear. It will be recalled that the evidence of Mr Matthews of the Council was that there was no windrow to the east; I therefore put his evidence to one side.

59 Mr McDonnell, the contracting supervisor of Boral, gave evidence that Boral would leave aggregate short of a table drain and not sweep it into the drain (TT 844.41). His position was that the normal practice was for gravel to be swept from the road surface to the side (TT 851.46).

60 Mr McPherson, the site supervisor of Boral, gave evidence that it was not the job of Boral to feather the windrow at the end of the works (TT 864.22), and that that task would be undertaken by employees of the Council (TT 865.46).

61 I do not consider that, when the works were completed, there was a formed-up windrow of roadbase and aggregate to the east of the road. Nor do I consider that it had been swept into the drain by employees of either the Council or Boral. Rather, I consider that there was a quantity of roadbase and aggregate that was lying to the east of the road and to the west of the drain. In light of the evidence of Mr McDonnell and Mr McPherson, I find that it was the Council who had feathered it out.

62 After the roadworks were completed, vehicles driving over the newly surfaced road dislodged some of the aggregate embedded in the bitumen. That explains the amount of loose gravel that a number of witnesses noticed. The amount of gravel on the road was not unusual or excessive, and was in general accordance with a particle count that had been conducted by Mr McPherson. I am not satisfied that the gravel on the road (other than what was in the swathe) had been washed from the outer eastern side of the road.

63 The drain overflowed at the point described by Ms Stevenson. That was a result of the combined effect of the volume of rainwater and the blockage by organic material at that point. The result was that a torrent of water crossed the roadway in a general southwesterly direction. It carried with it brown dirt, brown roadbase, and blue-grey aggregate, all of which had been sitting to the east of the road. That is the explanation for the appearance of the swathe across the road described by the witnesses and discernible in the photographs.

64 I do not accept that the roadbase stayed on the side of the road whilst all of the other materials moved to the southwest with the torrent of water. I am satisfied on the balance of probabilities that the roadbase formed part of the swathe as well.

65 I am also satisfied to the same standard that none of the materials on the road that were in the swathe had come from within the drain. Apart from anything else, it would take an enormous amount of water pressure to cause rocks or stones to rise up and out of a drain. The far more likely explanation is that all of the material in the swathe had been to the east of the road and the west of the drain.

(iii) How did the accident occur?

66 The evidence of Detective Sergent Acton was the subject of criticism by the Council and Boral. And yet he was a trained investigator of road accidents. Furthermore, in contrast to every other witness (including Ms Stevenson), he made a contemporaneous note of what he observed. It was criticised for its brevity, but some of that was explained by a successful objection. There was also criticism of his failure to photograph his observations. The explanation for that failure is that the police are in the business of investigating possible crimes, not possible torts. In the witness box, the evidence of the Detective was to my mind detailed, cautious and clear.

67 Detective Sergent Acton observed a "zigzagging" pattern through the gravel. I am satisfied that that pattern was caused by a tyre moving the gravel out of the way and leaving a furrow. Although the Detective did not identify that tyre as being that of a motorcycle, I infer without difficulty that a tyre of the motorcycle of the plaintiff caused that trail.

68 I am satisfied that the plaintiff lost control of his motorcycle once it passed onto the swathe. Certainly such items as soil, leaves, crushed rock, and gravel would provide far less friction between the tyres of a motorcycle and a road surface, and could lead to a concomitant lack of control. The zigzag shows the path of a tyre of the motorcycle once control had been lost; the gouge marks on the road show the motorcycle hitting the surface of the road with great force.

69 As for the mechanism by which control was lost, I am satisfied that the plaintiff was a most experienced motorcycle rider. He was also an extremely cautious one. Despite many decades of riding motorcycles, he had had only one previous accident, and that was at an organised racetrack during which another rider "clipped" his wheel. So great was his caution that he disapproved of his fellow tourers carrying pillion passengers, on the basis that they could be a dangerous distraction. Whilst it is true that he had had a number of speeding infringements over the years, one needs to bear in mind that he was a truck driver during that time. The fact that the plaintiff was an experienced and cautious motorcycle rider bolsters my satisfaction that he lost control of his motorcycle as a result of the sudden loss of friction occasioned by the tyres of his motorcycle coming into contact with the swathe.

70 Finally, there was a deal of expert evidence that sought to calculate the speed at which the plaintiff was travelling when the accident occurred. The calculations were based on the distance that the motorcycle slid; the amount of friction that the road surface would have provided; and other factors. That in turn called for a consideration of such things as the degree of friction that a motorcycle fitted with a fairing would have experienced as it slid along a road. There was a reasonably marked divergence in the opinions, the lowest possible estimated speed of the motorcycle as it began to fishtail being 64 km/h, and the greatest being 83 km/h: see Exhibit AK, Report of Dr Rechnitzer entitled "Supplementary Report on Single Motorcycle Incident" dated 30 May 2011, at 13, which seeks to summarise the opinions. It will be recalled that the speed limit on the stretch of road was 80 km/h.

71 To my mind, there were too many variables that were unable to be determined to permit one to come to a firm view based upon the expert opinions about the speed at which the plaintiff was travelling when his motorcycle hit the swathe and he lost control. In particular, I do not consider that one is able to state with any accuracy the degree of grip or slipperiness that the swathe provided.

72 Taking into account: the care with which the plaintiff rode as a matter of practice; his many years of experience as a motorcycle rider; the fact that he overtook two companions shortly before the accident; and his plan to refuel once over the border; I find on the balance of probabilities that the plaintiff was travelling at or slightly below the speed limit of 80 km/h.

Summary of findings of fact

73 In short, I am satisfied of the following propositions on the balance of probabilities.

74 First, when the roadworks were completed, there was a feathered windrow to the east of the stretch of road. That windrow comprised roadbase and aggregate.

75 Secondly, apart from what was subsequently in the swathe, there was not an excessive amount of aggregate on the stretch of road at that time.

76 Thirdly, the Council did not erect a sign that said anything such as "Caution - new work" or "Caution - loose gravel", and there was no such sign facing in either direction on 22 January 2006.

77 Fourthly, as a result of the combined effect of being blocked by vegetation and very heavy rains, the table drain to the east of the stretch of road overflowed. A stream of water travelled across the road in a general southwesterly direction. That stream carried with it a mixture of dirt, vegetable matter, roadbase, and aggregate.

78 Fifthly, a swathe made up of those four components was on the road at the time that the plaintiff travelled over it, in both a southerly and northerly direction, on 22 January 2006.

79 Sixthly, during the few days between the time that the swathe came into existence and the accident occurred, no officer of the Council became aware of its existence.

80 Seventhly, when the tyres of the motorcycle of the plaintiff came in contact with this swathe, friction was markedly reduced, with the result that the plaintiff lost control of the motorcycle. After that, the motorcycle zigzagged through the gravel on the road, leaving a trail. The motorcycle hit the roadway more than once, leaving gouge marks. The plaintiff also suffered impacts with the road, resulting in his injuries.

81 Eighthly, at the time of the collision the plaintiff was travelling at or slightly below the speed limit of 80 km/h.

Were the defendants negligent?

82 I move to consider whether the plaintiff has established that the two defendants were negligent. The particulars of negligence alleged by the plaintiff can be conveniently divided into a failure to remove excess roadworks material from the road, and a failure to warn the plaintiff that roadworks had recently been carried out via the erection of a sign. Senior counsel for the plaintiff made clear in his submissions that the latter failure was only alleged against the Council. Original particulars of negligence that asserted that the Council had been negligent by failing to install a sufficient drainage system or by failing to inspect the road was abandoned by the plaintiff by the end of the hearing.

Was Boral negligent?

83 It is convenient to deal first with the question of whether the plaintiff has established the elements of negligence against Boral.

(i) Duty of care

84 Boral did not deny that, in its roadbuilding work, it owed a duty of care to road users. However, in oral submissions it was expressed rather precisely as:

"a duty to take reasonable care in carrying out its work so that aggregate did not find its way on to the roadway in a quantity sufficient to cause a motorcyclist to lose control" (TT 975)

85 I do not accept that the duty of care should be expressed with such particularity. Rather, I consider that it should be thought of more generally. To my mind, Boral owed a duty to take reasonable care in its roadworks with regard to motorcyclists who themselves were taking reasonable care with regard to their riding. The plaintiff did not dispute that formulation. I am content to regard it as the duty of care owed by Boral to the plaintiff: Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [163]; Roads and Traffic Authority of NSW v Dederer (2007) HCA 42; 234 CLR 330 at [45].

(ii) Breach of duty

86 In short, in order to determine whether there has been a breach of the duty of care that I have found to have existed I must ask myself a number of questions. The matters to be taken into consideration are now chiefly contained in s 5B of the Civil Liability Act 2002 (NSW) ("the Act"), and are to be applied against the background of the well-known passage of the judgment of Mason J in Council of the Shire of Wyong v Shirt and Others (1979) 146 CLR 40 at 47. I must be satisfied of each of the three matters set out in s 5B(1) of the Act before finding that there has been a breach of duty: Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 at [442]-[444].

87 The first step is to identify the risk of harm with regard to which it is said that there was a breach of the duty of care. In Roads and Traffic Authority of NSW v Dederer at [53], it was said by Gummow J that "It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be." On the other hand, the New South Wales Court of Appeal has cautioned against characterising the risk of harm too narrowly: see Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151 at [25] per Meagher JA.

88 In written submissions, the plaintiff formulated the risk of harm more than once. There was some variation. At first, it was submitted that the risk of harm was "that of a motorcyclist hitting the hazard and losing control of his motorcycle and being injured" (PWS at [20]). Later, the risk of harm was said to be "the loss of control of a motor bike on loose material on the road causing injury to the rider" (PWS at [71]).

89 Boral submitted that the risk of harm was:

"The risk of a motorcyclist suffering injury as a result of losing control of his/her motorcycle due to the presence of a sufficient amount of aggregate used in the resealing of the road that had become spread across the road surface following a severe storm event, due to a blockage of the drainage and wash-out of material over the road." (BWS at [14])

90 For completeness at this stage, I note that the Council submitted that the risk of harm was "the risk of injury that arises from the presence of material on the road" (CWS at [19]).

91 I consider that the plaintiff has formulated the risk of harm too broadly, and Boral too narrowly. To my mind, it should be characterised as being "the risk that road building materials to the eastern side of the roadway could be swept onto the road, causing motorcyclists to lose control of their vehicles and suffer injuries as a result".

92 Having identified the risk of harm, I need to consider prospectively, and without the benefit of the hindsight of the occurrence of the accident, whether a reasonable person in the position of Boral would have foreseen that its conduct involved a risk of injury to the plaintiff as a motorcyclist, or to motorcyclists generally. In answering that question I must ask myself whether the risk was one of which Boral "knew or ought to have known" (s 5B(1)(a)), and whether the risk was "not insignificant" (s 5B(1)(b)).

93 I consider that the answer to those questions must be in the affirmative. It will be recalled that I have found that, in December 2005, Boral left a feathered windrow containing roadbase and aggregate on the eastern side of a road that had to its eastern side a table drain. There was no more advanced system of curbing and guttering. The road sloped to the west. The road was a curving road through a treed rural area in the far north of New South Wales.

94 I consider that a reasonable person in the position of Boral would have foreseen that its conduct in leaving the feathered windrow to the eastern side of the road in those circumstances involved a risk of injury to motorcyclists, namely the risk that roadbase or aggregate or both could wash or otherwise travel across the road, thereby reducing the available friction on the road and endangering motorcyclists. The situation may be contrasted to different circumstances that one may posit, such as the construction of a road that did not possess a high side and a low side, or where there was no drain, or where there was very little rainfall, or very little vegetation.

95 I consider that Boral, on the evidence a large and experienced company with regard to road works, at the least ought to have known of the risk. I also consider that the risk, whilst not particularly large, was not insignificant, in all of the circumstances to which I have referred and bearing in mind the discussion of Garling J at [101] in Benic v New South Wales [2010] NSWSC 1039.

96 The second component of the question of breach of duty is to ask myself what a reasonable person would have done in response to the risk: s 5B(1)(c) of the Act. In particular, I must take into account the probability that the harm would occur if precautions were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that created the risk of harm: s 5B(2) of the Act.

97 I have found this question difficult to determine. I do not consider that Boral left an excessive amount of roadbase or aggregate in the feathered windrow. The evidence made plain that, due to the presence of the table drain, it was impractical to seek to use some large cleaning machine or vehicle to pick up every piece of aggregate or gravel to the eastern side of the road. Indeed to do so in close proximity to the drain could have been very dangerous to the operator.

98 It is noteworthy that Mr Matthews, an employee of the Council, was firm in his evidence that the Council would never leave a windrow on the high side of the road. That was because of the very danger of "filling up the table drain", limiting its capacity to cope with rain, and increasing the chances of rainwater flowing onto the road and taking excess material with it (TT 814.44 - 816.46). He explained that, as far as he was concerned, the driver of the grader who was creating a windrow could and would without difficulty, as he or she made each pass, adjust the angled blade of the grader so that only one windrow, on the lower side of the road, would be created (TT 806.50-808.26; TT 814.41; Exhibit 33).

99 I have already explained that I reject the evidence of Mr Matthews that that is what happened on the occasion under discussion. I repeat that I have found affirmatively that there was indeed a feathered windrow on the eastern side of the road, created by the Council and consisting initially of roadbase, and added to by Boral and consisting of roadbase and aggregate. Nevertheless, his evidence of what he believed was done can inform one's assessment of what could have been done (but was not in fact done).

100 I have come to the view that a reasonable person in the position of Boral would have conducted himself or herself to ensure that the windrow was not left on the high, eastern side of the stretch of road in question. In other words, whilst I accept that a reasonable person would have, in other situations, left a windrow to the east, in the particular circumstances of this case I consider that a reasonable person would not have done so. Those circumstances are: the fact that this was a rural road; the area was treed; there was a table drain to the east; the road sloped to the west; there was no kerb or gutter; and the Northern Rivers experience heavy rain in summer (Exhibit R).

101 I have considered the probability that the harm would occur if care were not taken, as required by s 5B(2)(a) of the Act. I accept that the chance that an overflowing drain would cause a swathe of this kind across the road was low, and the chance that it would occur at that particular spot was very low. But analysing matters somewhat more generally, in all of the circumstances that I have recounted I consider that there was a reasonable possibility that at some point along the windrow an excess of water could cause the contents of the windrow to enter the roadway.

102 I analyse the likely seriousness of the harm, as required by s 5B(2)(b), as follows. The swathe presented no difficulty to Ms Stevenson when she drove her car over it. And it would have provided nothing more than a messy inconvenience to a pedestrian walking along the side of the road. But the position of a rider who is manipulating a two-wheeled motorcycle, and who is not surrounded by a very solid steel structure that, in all likelihood, includes airbags, is to be sharply contrasted with that of a person who is driving a car or truck. I assess the likely seriousness of the risk of harm to a motorcycle rider travelling at about 80 km/h as very high.

103 There would have been a burden in ensuring that there was a windrow only on the low side of the road: s 5B(2)(c). The manoeuvre described by Mr Matthews whereby the sweeping mechanism would need to be adjusted at the end of each pass would have been somewhat more time-consuming, and would have required a little more training of the operator. But I assess the burden of ensuring that there was not a windrow to the eastern side of the stretch of road as low.

104 Finally, my analysis of the social utility of the activity that created the risk of harm, as required by s 5B(2)(d), is as follows. The social utility of building and maintaining roads is obviously very high. But it was not the process of road building in general that created the risk of harm. Rather, it was the activity of creating a windrow to the east in the circumstances that did so. Although there was some social utility in doing it that way, in that it saved time and work and therefore money, I assess it as low.

105 In all of the circumstances, I consider that a reasonable person in the position of Boral would have formed a windrow to the west of the road only, in accordance with the procedure described by Mr Matthews. It follows that I consider that breach of duty has been made out.

(iii) Causation and damage

106 I turn to the question of whether the breach of its duty of care by Boral caused the injuries to the plaintiff. In doing so, I bear in mind that the plaintiff bears the onus of proving the relevant facts: s 5E of the Act

107 In short, pursuant to s 5D(1) of the Act, I need to be satisfied of two matters. The first is that the negligence of Boral was a "necessary condition" of the harm occurring: s 5D(1)(a). In other words, I need to be satisfied that, but for the materials being left in the feathered windrow, the plaintiff would not have suffered injury.

108 I am so satisfied. But for the roadbase and aggregate to the east, the swathe from the torrent would have been markedly different, in that it would have comprised only an amount of dirt and organic matter from the west of the drain and to the east of the road. It would therefore not have been as deep and extensive. It would also not have been as likely to provide a "moveable" surface (in the sense that crushed rocks and gravel on a road surface are liable to move when in contact with a tyre, thereby reducing friction and control). Without the roadbase and the aggregate, the swathe would not have been more than a stretch of dirt and leaves on the road.

109 Separately, I am well satisfied that the accident was not caused by inattention on the part of the plaintiff, or mechanical malfunction, or any similar circumstance or event.

110 In short, I consider on the balance of probabilities that the presence of the swathe on the road containing roadbase and aggregate emanating from the windrow was a necessary precondition of the harm that the plaintiff suffered.

111 Finally, to the extent necessary, for the purposes of s 5D(3)(a) I determine "subjectively" in light of all of the circumstances that, if the swathe had not been present on the road containing roadbase and aggregate, the plaintiff, a highly experienced and careful motorcycle rider, would have simply passed over a short stretch of dirt traversing the road.

112 The second matter I must be satisfied of is that "it is appropriate for the scope of the negligent person's liability to extend to the harm so caused": s 5D(1)(b). No party submitted that there was anything about the circumstances of this matter that would lead me to the view that the scope of the liability of Boral should not extend to the injuries suffered by the plaintiff. I find that it should so extend.

113 In short, I consider that the plaintiff has established on the balance of probabilities the elements of the tort of negligence against Boral.

Was the Council negligent?

114 Much of the above analysis is apposite to the position of the Council, and I will avoid unnecessary repetition. I will, of course, need to deal with the provisions contained in Part 5 of the Act to do with the liability of public authorities.

115 The Council did not dispute that it owed a duty of care to the plaintiff; namely, a duty to exercise reasonable care for the safety of road users who were themselves taking care for their own safety, even taking into account the special provisions contained in s 42 of the Act (CWS at [4]).

116 As for breach of that duty, I consider that much of my analysis with regard to Boral is applicable. I repeat my formulation of the risk of harm. I have found that the Council left a windrow of roadbase to the east; subsequently Boral left a windrow of roadbase and aggregate. The alternative that could have been adopted was to ensure that on each occasion there was only one large windrow to the western side of the road. Without repeating seriatim my analysis of the provisions of the Act, I consider that the plaintiff has established that the Council breached the duty of care it owed to the plaintiff.

117 Pursuant to s 42 of the Act, when considering whether the Council owes a duty of care or has breached any such duty, I must also bear in mind the limitations in financial and other resources that apply to the Council in the exercise of its functions; that it is not my place to set the allocation of those resources; that I must consider the broad range of activities of an entity such as the Council; and that the Council can rely on its compliance with "general procedures and applicable standards" in defence of the claim.

118 I have reflected on all of those matters. But I am not suggesting that the Council should have conducted its roadworks in a markedly different or more expensive way. Nor do I consider that the drain (along with every other similar drain within the jurisdiction of the Council) was defective and should have been remedied. Nor do I consider that a different procedure should have been adopted with regard to windrows with regard to every exercise of roadbuilding, urban and rural, in which the Council engaged in 2005. Rather, I have simply come to the view, bearing in mind all of the factors in s 42 of the Act, that a reasonable person in the position of the Council in this particular case would have taken steps to ensure that a windrow of roadbase was not left to the high side of the road.

119 With regard to the leaving of material, the Council relied upon s 45 of the Act. But I respectfully consider that that submission can be dealt with briefly. The Council engaged in the activity of playing a part in the repair of one of the roads within its jurisdiction. It did not fail to build a road. In other words, this is not a case of "non-feasance" (to use the concept that appears in the heading of the section), but rather misfeasance. I do not consider that the Council can divide up its activities in that way, and characterise an aspect of its activities as in truth doing nothing. It is noteworthy that the leading case of North Sydney Council v Roman [2007] NSWCA 27, 69 NSWLR 240 involved a failure to fill in a pothole that caused injury, not a process of filling in a pothole that was negligently performed.

120 It follows that I do not consider that s 45 can avail the Council with regard to the quantity of roadbase to the east.

121 In short, the Council did not dispute that it owed the plaintiff a duty of care. I consider that the Council breached that duty by leaving the quantity of roadbase to the east that was washed onto the road.

122 As for causation, I am satisfied that the swathe contained roadbase. With regard to the "but for" test, it was the combined effect of the contents of the swathe that led to the loss of control of the motorcycle. At the least the presence of the roadbase in the swathe, bearing in mind that it was comprised of crushed rocks, was a material contribution to that loss of control. Of course it is not possible or necessary to say that it was a particular crushed rock, or a particular piece of gravel, or indeed a particular leaf, that tipped the balance from the plaintiff retaining control to losing control as the motorcycle passed over the swathe.

123 Again, there is nothing to suggest that s 5D(1)(b) of the Act should operate against the plaintiff.

124 In all of the circumstances, I am satisfied that that requirement of causation has been made out against the Council.

125 In short I am satisfied that the plaintiff has established the elements of negligence against the Council with regard to the leaving of aggregate to the east of the roadway.

126 However, the same cannot be said about the failure to erect road signs to the effect of "Caution - new work" or "Caution - loose stones". That is so even though that was seemingly contrary to the Standard with regard to such matters (Exhibit AP). That is because of the operation of s 43A of the Act.

127 The plaintiff did not dispute that the erection of road signs was a "special statutory power" vested in the Council: TT 1040.37. However he submitted that the failure to erect such signs was "so unreasonable that no authority having the special statutory power in question could properly consider the ... omission to be a reasonable exercise of, or failure to exercise, its power" (s43A(3)).

128 I respectfully reject that proposition. It is one thing to accept that one would have expected such a sign or signs in the general circumstances of this case, in conformity with the Standard. And one can readily accept, with the benefit of perfect hindsight, that the erection of such a sign or signs would have been desirable and may have avoided these tragic consequences. But that is not the test contained in the section.

129 I have not reached a level of satisfaction that, in all the circumstances of the case, the failure to erect a sign or signs was so unreasonable that no local Council could properly consider that omission to be a reasonable failure to exercise that power.

130 Two aspects of the evidence inform this finding. The first is that there was no expert evidence called on behalf the plaintiff as to what officers of other councils would have made of the omission of this council: Firth v Latham & Ors [2007] NSWCA 40 at [60] and following. The second is that it should be remembered that the roadworks came to an end on 17 December 2005. The accident occurred on 22 January 2006; that is, five weeks later. In other words, it is not so much the failure to erect a sign the day after the roadworks came to an end that is relevant, but rather the failure to have maintained the presence of a sign or signs five weeks later. I am simply unable to be satisfied on the evidence before me that it was unreasonable to the requisite degree for the Council not to have ensured the presence of a sign or signs on the day of the accident, many days after the roadworks came to an end.

131 In short, I consider that s 43A of the Act protects the Council from any liability arising from the absence of road signs on the day in question.

132 To summarise my findings with regard to the claim in negligence of the plaintiff against the Council, I consider that negligence has been established by way of the leaving of a quantity of roadbase to the eastern side of the road when the Council finished its roadworks, but not by the failure to ensure that there were warning road signs on the day of the accident.

133 Finally, with regard to the absence of signs, the Council relied upon the provisions of the Act directed towards obvious risk, and the fact that a defendant does not owe a duty of care to warn of an obvious risk: ss 5F and 5H of the Act. It submitted in short that, in light of the fact that the plaintiff had earlier that day passed over the swathe when riding south, the swathe was a risk that was obvious to him when he was riding north and the accident occurred. The Council submitted that, in the circumstances of this case, s 5H applied, and that this was a second basis on which the Council could not be liable for failing to erect warning signs (CWS at [107]-[111]).

134 The plaintiff submitted that it was "unreasonable and unrealistic to expect a person to ride along a country road taking note of all the conditions for the purpose of their return trip" (TT 1038.40). Further, the plaintiff submitted that it was unclear how prominent or thick the swathe was on the eastern side of the road compared with the western side of the road (TT 1038.44).

135 It would be an odd result if the question of whether s 5H is engaged (and thereby protects the Council) with regard to the failure to erect and maintain road signs is dependent upon the capricious question of whether a motorcycle rider travelling north on the stretch of road had traversed it from the opposite direction on the day in question (as opposed to, for example, having approached Nimbin from the south). But in any event, because of my view that s 43A protects the Council with regard to the absence of road signs, I do not propose to analyse this subsidiary submission of the Council further.

136 In oral submissions, Boral made it clear that it relied on these aspects of the evidence purely in support of an assertion of contributory negligence (TT 982). I will deal with the fact that the plaintiff had passed over the swathe earlier in the day now that I come to discuss that doctrine.

Contributory negligence of the plaintiff

137 As I have said, there is no suggestion that the plaintiff was intoxicated by alcohol or any other drug at the time of the accident. I have already determined on the balance of probabilities that the plaintiff was travelling at or slightly below the speed limit. I also consider that he was riding generally with due attention.

138 However, it will be recalled that the plaintiff had travelled over that same stretch of road in a southerly direction earlier that day. And that journey had been undertaken a short time before the northerly journey, in that only a period of lunch intervened. In other words, the plaintiff was on notice of the presence of the extended portion of gravel on the road, along with the swathe, as a result of having experienced both of them earlier on that same day.

139 It is true that it is possible that the swathe was less marked on the eastern side of the road (over which the plaintiff travelled in a southerly direction) as opposed to on the western side of the road (over which he travelled in a northerly direction and lost control). It is also true, as the plaintiff submitted, that it is possible that shadows from trees obscured, to some degree, the view of the plaintiff as he approached the swathe from the south; on the evidence, including the photographic exhibits, that proposition is impossible to determine. Nevertheless, without engaging in a detailed analysis of the circumstances, I consider that there was a degree of contributory negligence on the part of the plaintiff in his failing to negotiate the hazard over which he had passed quite recently, and of which he thereby had explicit notice.

140 In accordance with s 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), and the approach set out in Pennington v Norris (1956) 96 CLR 10 at 16, I assess the contributory negligence of the plaintiff in all the circumstances as being 10%.

Contribution between Boral and the Council

141 To summarise matters, I have found that both the Council and Boral are liable in negligence to the plaintiff. I have also found that the plaintiff is liable by way of contributory negligence in the amount of 10%.

142 I turn to consideration of the question of contribution between the two defendants, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). This section creates a statutory right of contribution between concurrent tortfeasors (whether joint or several). Each of the defendants relied upon this section against the other.

143 The relevant statutory provisions are as follows:

5 Proceedings against and contribution between joint and several tort-feasors

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):

...

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

...

144 In light of my findings, there is no dispute that Boral and the Council are both liable in respect of the damage suffered by the plaintiff. Accordingly, both may rely on this statutory cause of action: Bitumen and Oil Refiners (Aust) Ltd v Commissioner for Government Transport [1955] HCA 1; 92 CLR 200 at 211-12.

145 The practical content of determining responsibility for damage was discussed by the High Court of Australia in Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; 59 ALJR 492 in the context apportionment between a plaintiff and a defendant. At 496 the Court said:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre [1958] TASStRp 11; (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

146 With these principles in mind, I consider that Boral is somewhat more culpable than the Council in the circumstances of this case. That is so for a number of reasons. First, the Council left merely an amount of roadbase, whereas when Boral departed there was left an amount of roadbase and aggregate. Secondly, whilst it is true that there was a final inspection by officers of the Council, it was Boral that worked on the stretch of road during the latter stage of the works. Thirdly, I infer that a company engaged in the specialised business of sealing roads has more expertise than a local council that is exercising countless other functions.

147 Applying the principles of apportionment to those circumstances, I consider that contribution of liability should be determined at 60% to Boral and 40% to the Council.

The first cross-claim: the Council v Boral

148 I turn to consider the cross-claim of the Council against Boral.

149 Its first foundation was breach of contract, itself founded on three clauses of the contract between the Council and Boral. It is convenient to deal with these clauses in an order different from that in which they were presented in the Further Amended Statement of Cross-Claim.

150 The first clause relied upon was clause D 2.7. Various aspects of it were relied upon, and it is necessary to set it out in its entirety:

D2.7 REMOVAL OF LOOSE AGGREGATE

i. During the progress of work and until the risk of flying stones has passed, the Contractor shall be responsible for the removal of loose sealing aggregate form [sic] the pavement an [sic] shoulders and the sweeping unit shall not leave the site of work during this period.

ii. On the day of sealing and where excess aggregate has accumulated, the pavement shall be swept using a vacuum broom in suction mode only.

iii. Final sweeping of the pavement and shoulders shall be completed on the day after the incorporation of aggregate. All loose sealing aggregate on the pavement and shoulders shall be removed using a vacuum broom.

iv. A mechanical broom shall also be maintained on-site to supplement the vacuum broom.

v. The Contractor shall remove all windrows of loose aggregate.

vi. The Contractor shall pay particular attention to the removal of loose sealing aggregate from intersections, medians and grassed verges.

vii. The cost of removal of loose aggregate shall be included in the rate stated in Item 8 - Load, Haul and Spread Aggregate of Schedule 2.

viii. Removed aggregate shall be stockpiled at a site nominated by the Superintendent.

ix. The Contractor should note, that for quantities up to 9,999 litres in one visit, that Council shall supply a vacuum broom and operator at no charge to the Contractor. [Emphasis in original]

151 The simple submission of the Council was that Boral did not comply with that clause, if it were the case (as I have found it to be) that there was roadbase and aggregate to the east of the road. Particular reliance was placed upon sub-clause (iii). The Council submitted that, if the plaintiff succeeds against the Council, that is because there was indeed "loose sealing aggregate on the pavement and shoulders". And it was said that Boral simply failed to use a vacuum broom in accordance with the clause.

152 I consider that the question of the vacuum broom can be disposed of quickly. It was not disputed that sub-clause (ix) called upon the Council to provide a vacuum broom in the circumstances of this case. And yet there was no dispute that that was never done. It cannot be the case that the Council can rely on an agreement on the part of Boral that it will use a vacuum broom to be supplied by the Council when the Council never provided, pursuant to the contract, that very item.

153 Because of my view about the vacuum broom, I do not proceed to determine the second answer of Boral to that claim, namely an acceptance over many years by the Council of Boral not using a vacuum broom with regard to previous works, that state of affairs being said to give rise to an estoppel against the Council.

154 As for the other aspects of the claim based on this clause, the Council submitted that the simple fact is that the foundation of the claim of the plaintiff is roadbase and aggregate to the eastern edge of the road. And yet, according to sub-clause (iii), Boral agreed that it would ensure that that would not be the case.

155 I do not accept that sub-clause (iii) should be read in the way for which the Council contends. It needs to be read in the context of the whole clause: see Australian Broadcasting Commission v Australian Performing Rights Association Ltd (1973) 129 CLR 99 at 110. To my mind, the clause as a whole follows a progression with regard to the order in which steps are to be taken, and the locations in which they are to be performed.

156 First, the clause speaks of what Boral must do during the progress of the works: sub-clause (i). It goes on to say what must happen on the day of sealing: sub-clause (ii). Then it speaks of final sweeping on the day after incorporation: sub-clauses (iii) and (iv). It is on that day that the pavement and the shoulder must be cleared.

157 Later, and in what I infer to be a different location, Boral must remove windrows of loose aggregate: sub-clause (v). Finally, the clause speaks of matters that must be given particular attention, and where aggregate should be stockpiled: sub-clauses (vi) and (viii).

158 I consider that when the clause speaks of "shoulders" in sub-clause (iii) it is not speaking of the location at which the windrow was placed on the stretch of road. Rather, it was speaking of an area close to the edge of the paving but still within it.

159 It may be accepted that Boral did not remove all of the aggregate on the pavement and the shoulders (whether by way of vacuum broom or any other measure). But that is not the location of the feathered windrow that I have found played a central role in the accident. To the extent that Boral did not comply with sub-clause (iii), that was not the cause of the liability of the Council.

160 As for sub-clause (v), it cannot be the case that the contract means that Boral was required to remove every piece of aggregate that made up a windrow. Rather, I interpret it to mean that Boral was called upon to remove any such windrow by feathering it. It will be recalled that I have found that there was no windrow when the works were completed; rather, there was roadbase and aggregate to the east of the road that the Council had feathered out, in accordance with usual practice.

161 In other words, it may be accepted that, strictly speaking, Boral did not comply with sub-clause (v), in that it was the Council and not Boral who removed the windrow by feathering it. But that is of no moment in this case. That is because it is not the presence of a windrow that was central to the accident; rather, it was the presence of the materials, not formed-up into a windrow, to the east of the road and to the west of the drain, that was central.

162 In other words, whilst it may be accepted that Boral did not remove the windrow, that is of no moment in terms of liability or causation, because I have found that the Council did so.

163 In short, reading clause D 2.7 as a whole, for various reasons I do not consider that the Council can succeed against Boral on the basis that Boral breached it.

164 The second clause relied upon was clause 8 of AS 4305-1996 (which was incorporated in the contract), which is as follows:

8 DAMAGE TO PERSONS AND PROPERTY

Insofar as this Clause 8 applies to property, it applies to property other than the work under the Contract.

From the time when the Contractor commences work under the Contract, the Contractor shall indemnify the Principal against -

(a) loss of or damage to property of the Principal, including existing property in or upon which the work under the Contract is being carried out. The limit of indemnity under this Clause 8(a) shall be the amount stated in item 14; and

(b) claims by any person against the Principal in respect of personal injury or death or loss of or damage to property,

arising out of or as a consequence of the carrying out by the Contractor of the work under the Contract, but the Contractor's liability to indemnify the Principal shall be reduced proportionally to the extent that the act or omission of the Principal, the Superintendent or the Principal's other contractors, employees, consultants or agents contributed to the loss, damage, death or injury.

This Clause 8 shall not apply to -

(i) the extent that the liability of the Contractor is limited by another provision of the Contract;

(ii) exclude any other right of the Principal to be indemnified by the Contractor;

(iii) things for the care of which the Contractor is responsible for under Clause 7.1

(iv) damage which is the unavoidable result of the construction of the Works in accordance with the Contract; and

(v) claims in respect of the right of the Principal to have the work under the Contract carried out.

The Principal shall indemnify the Contractor in respect of damage referred to in Clause 8(iv) and claims referred to in Clause 8(v).

165 The Council submitted that that clause entitled it to full indemnity with regard to any liability of the Council arising from the works. Boral submitted that, reading the clause as a whole, it should be construed as stating that Boral must indemnify the Council in circumstances in which the negligence of Boral has led to liability on the part of the Council. It was said that it does not operate to require Boral to indemnify the Council in circumstances where the Council has itself been negligent.

166 I respectfully accept the submission of Boral. It seems to me that, when the clause speaks of proportional reduction of the indemnity insofar as the act or omission of the Council contributed to the adverse consequences, the clause is speaking of the indemnity that Boral is called upon to provide being reduced to the extent that the Council is itself negligent. I have already found that the Council was negligent by way of its own action in leaving a windrow of roadbase on the eastern side of the road.

167 It can be seen that the indemnity clause under discussion is structurally different from, for example, those that are extracted in Erect Safe Scaffolding (Australia) Pty Ltd v Sutton and Another [2008] NSWCA 114; 72 NSWLR 1 at [140] and in Roads and Traffic Authority of NSW, Council of the Shire of Evans and Pioneer Road Services Pty Ltd v Palmer [2003] NSWCA 58 at [201].

168 Due to what I consider to be the clear words of the clause, I do not consider that I need to review the authorities to which I was invited, whether they be to do with contractual construction in general, or the construction of indemnity clauses in the context of road building in particular.

169 The third clause upon which the Council relied was clause 10. It is necessary to set out both that clause and the clause preceding it:

9 INSURANCE OF THE WORK UNDER THE CONTRACT

Before the Contractor commences work under the Contract, the party named in Item 15 shall effect an insurance policy for an amount not less than the sum stated in Item 16 covering the Contractor's liability under Clause 7 [which concerns "care of work and reinstatement of damage"]. Insurance effected by the Contractor shall be with an insurer and in terms both approved in writing by the Principal, which approvals shall not be reasonably withheld.

The insurance policy shall be in the joint names of the Principal and the Contractor, and shall cover the Principal, the Contractor and all subcontractors employed from time to time in relation to the work under the Contract for their respective rights, interests and liabilities. The policy shall be maintained until the Contractor ceases to be responsible under Clause 7 for the care of anything.

10 PUBLIC LIABILITY INSURANCE

Before the Contractor commences work under the Contract, the party named in Item 17 shall effect a public liability policy of insurance in the joint names of the Principal and the Contractor which covers the Principal, the Contractor, the Superintendent and all subcontractors employed from time to time in relation to the work under the Contract for their respective rights and interests, and covers their liabilities to third parties. The policy shall also cover for the Contractor's liability to the Principal and the Principal's liability to the Contractor for loss of or damage to property (other than property required to be insured by Clause 9) and the death of or injury to any person (other than liability which is required by law to be insured under a workers compensation policy of insurance). Insurance effected by the Contractor shall be with an insurer and in terms both approved in writing by the Principal, which approvals shall not be unreasonably withheld.

The public liability policy of insurance shall be for an amount in respect of any one occurrence not less than the amount stated in Item 18. The policy shall be maintained until the Final Certificate is issued.

170 In succinct written and oral submissions, Boral submitted that I should read clause 10 in a limited way, in light of the limited indemnity provided by clause 8. Boral submitted that it could not be the case that Boral was required to insure the Council for all of its liabilities arising from the works, but rather merely those with regard to which Boral had agreed to indemnify the Council pursuant to clause 8. It was said that the position of clause 10, closely following upon clause 8, argued in favour of that proposition. It was also submitted that that the use of the phrase "for their respective rights and interests" implicitly leads one back to be relationship of indemnity contained in clause 8.

171 Boral did not rely on any estoppel with regard to the claim of the Council pursuant to breach of clause 10. The focus of Boral was upon the construction of the clause.

172 The Council submitted that the words of clause 10 mean what they say. It was submitted that the reading proposed by Boral would not make commercial sense, in that there was no point in requiring Boral to obtain insurance for the Council only with regard to liabilities for which Boral indemnified the Council in any event.

173 There are a number of aspects of the clause, and its position within the contract as a whole, that support the submission of the Council.

174 First, there is nothing in clause 10 to suggest that the reference to rights and interests of various parties is to be interpreted as referring to the limited indemnity in clause 8.

175 Secondly, in contrast to clause 8, clause 10 does not have any explicit structural limitation.

176 Thirdly, although clause 9 explicitly refers to clause 7, clause 10 does not explicitly refer to clause 8. The explicit reference in clause 9 to clause 7 argues against inferring an implicit reference in clause 10 to clause 8.

177 Fourthly, clause 10 is followed by two clauses to do with "insurance of employees" and "insurance provisions". There is nothing to suggest that those general provisions are limited or to be read down. That context suggests that clause 10 is not to be read down either.

178 Fifthly, the submission of the Council that the reading for which Boral contends would render the protection by way of insurance nugatory is generally correct. If the submission of Boral is accepted that clause 10 requires only insurance of liability on the part of the Council for which, pursuant to clause 8, the Council is already indemnified by Boral, the only circumstances in which that would be of any advantage to the Council would be if Boral were impecunious. That would be a very odd reading of a contract between a Council and a large corporation.

179 In all of the circumstances, I consider that Boral breached its contract with the Council, in that Boral did not effect a policy of public liability insurance that covered the liabilities of the Council to the plaintiff. The measure of damages in light of that breach is the liability of the Council in the tort of negligence to the plaintiff. It follows that the Council is entitled to an effectual indemnity from Boral for the whole of its liability to the plaintiff.

180 The second and third bases of the cross-claim of the Council against Boral were damages for negligence based upon various omissions on the part of Boral generally founded upon failure to comply with aspects of clause D 2.7, and contribution or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. In light of my determination with regard to breach of the contract with regard to insurance, I will not analyse those claims at length. However, I have taken those matters into account when I considered the question of contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946.

The second cross claim: Boral v the Council

181 This pleading asserted in short that the Council had been negligent with regard to the state of the drain that overflowed, and also in failing to inspect the road after heavy rainfall. However, despite the fact that senior counsel for Boral made highly detailed and helpful written and oral submissions about many other facets of the case, none were made in support of the allegations in this cross-claim. I consider that I am entitled to infer that, in those circumstances, as a result of the refinement of the issues throughout the course of the hearing, this aspect of the cross-claim was not pressed.

182 Again, to the extent that the cross-claim also relied upon s 5, I have considered that when I came to my determination of contribution.

183 I make the following orders.

Orders

(1) Judgment for the plaintiff against the first defendant and the third defendant in the sum of $1,170,000.

(2) Contribution in the liability pursuant to order 1 at 60% in the case of the third defendant and 40% in the case of the first defendant.

(3) Judgment for the first defendant against the third defendant on the cross-claim of the first defendant.

(4) Dismiss the cross-claim of the third defendant against the first defendant.

(5) The parties are to formulate draft orders, as necessary, further to the above orders, and in accordance with my reasons for judgment.

(6) The parties are to formulate draft orders with regard to costs and other ancillary matters in accordance with the above orders.

(7) The parties have liberty to approach my Associate in order to obtain a date for the determination of the further orders referred to in orders 5 and 6.

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Decision last updated: 17 April 2014