Shoalhaven City Council v Smith [2001] NSWCA 469

New South Wales Court of Appeal

CITATION : Shoalhaven City Council v Smith [2001] NSWCA 469 FILE NUMBER(S) : CA 40086/01 HEARING DATE(S) : 10/12/01 JUDGMENT DATE : 13 December 2001

PARTIES : Shoalhaven City Council v Kirk Smith JUDGMENT OF : Powell JA at 1; Hodgson JA at 2; Ipp AJA at 6

LOWER COURT JURISDICTION : District Court LOWER COURT DC 74/99 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

COUNSEL : J E Machonachie QC (Claimant/Appellant) D Elliott (Opponent/Respondent) SOLICITORS : Phillips Fox (Claimant/Appellant) Kells (Opponent/Respondent) CATCHWORDS : NEGLIGENCE - duty of care - breach of duty - unsealed roads - failure to maintain - local authority.ND CASES CITED: Miller v McKeon (1905) 3 CLR 50 Brodie v Singleton Shire Council (2001) 75 ALJR 992 DECISION : (1) Application for leave to appeal dismissed (2) Claimant to pay the Opponent's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40086/01 DC 74/99 POWELL JA HODGSON JA IPP AJA

Thursday, 13 December 2001 SHOALHAVEN CITY COUNCIL v KIRK SMITH Judgment

1 POWELL JA: I agree with Ipp AJA. 2 HODGSON JA: The circumstances relating to this appeal are set out in the judgment of Ipp AJA. 3 Although I perhaps see more force in the arguments for the claimant than does Ipp AJA, his Honour's judgment shows that there was a basis on which the primary judge could, consistently with principle, have found a verdict for the opponent. I agree with Ipp AJA that no question of principle is raised which requires consideration by this Court. 4 Accordingly, while I may not necessarily have come to the same conclusion as the primary judge, I do not think a case is made out for the grant of leave to appeal. 5 I agree with the orders proposed by Ipp AJA. 6 IPP AJA: This is an application for leave to appeal and an appeal that were heard at the same time. 7 The claimant seeks leave to appeal against a judgment of Phelan DCJ in an action for damages for personal injuries brought by the opponent against it. 8 The action concerned injuries the opponent sustained while riding his motor cycle on an unsealed gravel section of Yalwal Road in the upper Shoalhaven region. His motor cycle struck a sandstone rock embedded in the road, careered off the road and hit a tree. 9 The rock protruded above the gravel surface of the road by about 100 millimetres. The opponent did not see the rock prior to the accident. 10 The cause of the rock being at a higher level than the surrounding gravel surface was that rain water had run along a channel in the centre of the road and scoured out gravel alongside the rock. 11 Phelan DCJ found that the claimant negligently caused the accident by failing to remove the rock or by failing to create a "better level of drainage" across the section of the road where the accident occurred. 12 It was not in dispute that, under the legislation applicable, the claimant had "the care, control, conduct and management and maintenance of the road". The essential issue was whether the claimant, in exercising its duties to maintain the road, had exercised reasonable care in all the circumstances to avoid danger to persons using the road: Miller v McKeon (1905) 3 CLR 50. 13 Mr Clark, an expert called by the claimant, explained that when an unsealed gravel road is first constructed surface water is shed to its sides by the effect of the longitudinal gradient and cross-fall of the road. Water flowing along the ruts and windrows or "laying on the pavement" causes scours and potholes. Mr Clark said that this was an inevitable occurrence with unsealed gravel roads. Such disturbances in the soil are corrected by grading and, sometimes, by the addition of material to replace soil losses. 14 In the course of maintaining the road, the claimant caused it to be graded once or twice a year. Grading is an operation whereby material that has been displaced from the road is recovered and redistributed over the road to provide a smoother surface. 15 Grading for such a purpose had so taken place three to four weeks before the accident on Yalwal Road in the vicinity of the sandstone rock. This was a steep section of the road and Mr Upitis, the claimant's asset maintenance manager, acknowledged that it was an area that, in the ordinary course, would "get some attention". 16 The grading had the effect that, immediately after it had been completed, the top of the rock was level with the gravel portion of the road and the rock did not constitute any danger to traffic. 17 Over the period of three to four weeks between the grading and the accident, largely through the action of water, part of the gravel adjacent to the rock was scoured away. This erosion led to the edge of the rock protruding some 100 millimetres (4 inches) above the gravel section of the road. 18 Phelan DCJ found: "Despite a drain under the road some eight metres before the piece of sandstone, I am satisfied at the time of the accident water scarred the centre of the road exposing one side of the rock, estimated by the [opponent] to be 100 millimetres or some four inches. The left hand side of the rock was flush with the gravel on the left hand side of the road. The rock itself is irregularly shaped, on its left side being fairly straight but on its right side being indented in such a way that about half way along its length there is an irregular step of the dimension described above".