New South Wales Court of Appeal CITATION : Astec Pty Limited v Yass Truck & Tractor Pty Limited [1999] NSWCA 41 FILE NUMBER(S) : CA 40595/97 HEARING DATE(S) : 04/03/99 JUDGMENT DATE : 4 March 1999 Astec Pty Limited PARTIES : Roads and Traffic Authority Yass Truck & Tractor Pty Limited JUDGMENT OF : Sheller JA at 15; Beazley JA at 1; Fitzgerald JA at 16 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 3764/95 LOWER COURT JUDICIAL OFFICER : Howie DCJ COUNSEL : D Cutler (Appellant) M B Duncan (Respondent) SOLICITORS : Stewart Cuddy & Mockler (Appellant) Edwards Johnstone Sullivan (Respondent) CATCHWORDS : Negligence; Contributory Negligence; Finding of fact open to the trial judge DECISION : Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40595/97 DC 3764/95 SHELLER JA BEAZLEY JA FITZGERALD JA Thursday, 4 March 1999 ASTEC PTY LIMITED & ANOR v YASS TRUCK AND TRACTOR PTY LIMITED JUDGMENT 1 BEAZLEY JA: The appellants were the unsuccessful defendant in proceedings before Howie DCJ in respect of a claim for damages for property damage arising out of a motor vehicle accident. The only issue on appeal is whether his Honour erred in failing to find contributory negligence on the part of the respondent through its driver, David Robertson. 2 The accident occurred in the early hours of 1 June 1994 when the respondent drove south on the Barton Highway from Yass in the direction of the Australian Capital Territory. It was a clear night with fine weather, but there was a light fog. At one point along the highway roadworks were under construction. The roadworks were being constructed by the first appellant in accordance with a contract it had entered into with the second appellant. The roadworks covered a distance of about 1.6 kilometres. There was a sign indicating the presence of road work and an 80 kilometre speed limit applied to that area of the highway. Mr Robertson was well aware of the road works, which had commenced in early May, as he had travelled that stretch of road several times a day for a prior period of about six months. 3 It was about 1.20am when Mr Robertson reached the road works. He had his headlights on and he said that the normal headlights were sufficient for the conditions at the time. According to Mr Robertson's evidence, about 1.5 kilometres past the commencement of the road works, he saw what appeared to him to be a set of headlights coming towards him about 1 kilometre ahead. 4 At this time he was travelling between seventy and eighty kilometres per hour. His evidence was that there was nothing to show the edge of the road; there were no lines on the road way, no guide posts and no barrier boards. Nor were there any lane markings, including any marking of the centre line. He said that because of this, he moved slightly to his left as a matter of caution to ensure that he was on his correct side of the road and to give the on-coming vehicle as much of the road as possible. This forced the front passenger side wheel of the truck off the surface of the road, where Mr Robertson lost control of it. The truck rolled. It stopped on its side across the centre of the road way. The trailer disconnected and rolled off the road surface into an adjoining field. 5 Mr Robertson later determined that there had in fact been no other vehicle approaching him but that what he had seen was the reflection of his truck's headlights in the windscreen of a roller parked on the side of the road which had been used in the construction of the road works on the highway. 6 On the eastern side of the roadworks there was a straight drop from the level of the new road surface to the existing gravel shoulder of about 80 mm. Photographic evidence was tendered that showed half the width of the existing gravel verge, a distance of about 500 cm, had been sprayed with what appeared to be black tar or bitumen. The remainder of the gravel verge was of a light grey colour and sloped away to grass and scrub. 7 Senior Constable Monkley attended the accident site at about 2am on 1 June and again attended the scene a few days later, on 6 June. In his traffic collision report he concluded that the cause of the accident were the conditions of the road works. Senior Constable Monkley had no record that he had been informed by Mr Robertson that there was a vehicle parked in the vicinity of the point of the road where the collision occurred. Nor did he have a record Mr Robertson's having moved to the left of the road because he saw what he believed to be the lights of an incoming vehicle. 8 The trial judge rejected Mr Robertson's explanation that he moved to the far left of the road as a matter of caution because there was no road markings or marking of the laneways. He found that the centre and fog lines had been marked out on the road surface by reflective markers, adequate to mark the centre of the road and the traffic lanes and that they ought to have been seen by a person driving along that road. 9 His Honour also rejected Mr Robertson's explanation that there was a roller parked on the crest of the hill just past the end of the road work. 10 Despite these findings Howie DCJ decided that he did not need to find that Mr Robertson was inadvertently travelling in the manner he had alleged. Rather, he simply found that there was no reasonable explanation for it and that there was no particular relevance in determining why Mr Robertson allowed the truck to move off the lanes of the roadway. 11 His Honour found that the edge of the new road surface presented a dangerous situation to drivers "by reason of the drop between the layer of hot mix and the gravel verge", made more so by their similarity of colour. Such danger as was present here required that there be adequate signs and barrier boards to alert drivers to the situation. In fact, barrier boards were erected after the accident. His Honour further found that a sign should have been in place to bring to the attention of road users the risk in using the shoulder, and the fact that the shoulder area was of a reduced width. 12 His Honour commented that the shoulder of the road way generally permits a driver some degree of latitude in allowing a vehicle to deviate from the traffic lane without danger, even when there are road works under construction. Indeed, it might be added that one of the functions served by having a shoulder is to provide a safe surface where drivers, for any reason, including error of judgment, wholly or partly move off the roadway. Once it is accepted that there was a significant drop in the level of the shoulder which was inadequately marked and signposted, and in the absence of any indication that Mr Robertson did know or ought reasonably have known of that specific danger, then no question of contributory negligence arises. 13 Accordingly, his Honour held that in allowing the respondent's vehicle to enter into what appeared to be the shoulder of the road, Mr Robertson was not negligent or, if he were, that such negligence did not contribute to the truck overturning in this case. 14 In my opinion, that conclusion was open to his Honour. I consider that the appeal should be dismissed with costs. 15 SHELLER JA: I agree. 16 FITZGERALD JA: I agree 17 SHELLER JA: The order of the Court is that the appeal is dismissed with costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.