New South Wales Supreme Court CITATION : Suvaal v The Nominal Defendant & Anor [2000] NSWSC 1043 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20668/94 1, 2, 3, 4, 5, 8, 9, 10 February 1999; HEARING DATE(S) : 15, 16, 17, 18, 21, 22, 23, 24, 25 June 1999; 29 & 30 November 1999; 1, 2, 8, 9 & 10 December 1999; JUDGMENT DATE : 10 November 2000 Anthony Peter Suvaal (Plaintiff) PARTIES : The Nominal Defendant (First Defendant) Cessnock City Council (Second Defendant) JUDGMENT OF : Master Harrison Mr D B Milne QC with Mr D Conti (Plaintiff) COUNSEL : Mr R R Bartlett SC with Mr Wilson (First Defendant) Mr D F Rofe QC with Mr M J Lawler (Second Defendant) McClellands (Plaintiff) SOLICITORS : Abbott Tout (First Defendant) Moray & Agnew (Second Defendant) CATCHWORDS : Personal injury - bicycle rider - quadriplegic - liability only Motor Accidents Act 1988 - s 28 Local Government Act 1919 - ss 20B(6)(a), 21(l),(m) 7 (r), 28(a) LEGISLATION CITED : Clauses 4 & & Proclamation, 14 September 1956 pursuant to LGA Local Government Act 1972 Termination Act - s 14(b) Local Government (Areas) Act SRA (NSW) v Earthline Constructions Pty Ltd (in Liq) [1999] 73 ALJR 306 at 331 Rayment v James [1999] NSWCA 101 Voulis v Kozary (1995) 180 CLR 177 at 193 Khafam Developments Pty Limited v Zeaiter (NSWCA, 3 October 1996, unreported) Blandford v Fox (1944) 45 SR (NSW) 241 at 245 Lawrence v The Nominal Defendant (1984) 1 MVR 388 Slinn v The Nominal Defendant (1964) 112 CLR 334 Cavanagh v The Nominal Defendant (1950) 100 CLR 375 Harrison v The Nominal Defendant (1975) 50 ALJR 330 Nicholl v NSW Ministerial Corp (1995) 21 MVR 499 Walters v Babergh DC (1983) LGR (QBD) 235 Vromilow & Edwards Pty Ltd v Inland Revenue Commissioner (1969) 1 WLR 1180 at 1189 Crimmins v Stevedoring Industry Finance Committee [1999] 167 ALR 1 Florence v Marrickville Municipal Council (1959) 60 SR 56 Buckle v Bayswater Road Board (1936) 57 CLR 259 Lake Macquarie City Council v Bottomley [1999] NSWCA 28 [para 38] Gorringe v The Transport Commission (TAS) (1950) 80 CLR 357 Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232 CASES CITED : UTA v Purcell (1994) 82 LGRA 284 Campbelltown City Council v Crain (NSWCA, 9 October 1998 unreported) Lake Macquarie City Council v Day [1999] NSWCA 2Threadgate v Tamworth City Council (NSWCA, 24 February 1999, unreported) Hill v Commissioner for Main Roads 68 LGRA 173 Marr v Holroyd Municipal Council (1986) Aust.Tort.Rep 80-031 Attorney General v Borough of North Sydney (1893) 9 WN 177 Singleton SC v Brodie [1999] NSWCA 37 Barbieri v Fairfiled City Council [1999] NSWCA 405 Ghantous v Hawkesbury CC [1999] NSWCA 51 Gosford City Council v Timbs [2000] NSWCA 31 Gloucester Shire Council v McLeneaghan & Anor [2000] NSWCA 208 Pyrenees Shire Council v Day (1998) 72 ALJR 152 Cekan v Haines (1990) 21 NSWLR 296 Northern Sandbalsting Pty Limited v Harris (1996-97) 188 CLR 313 Romeo v Conversation Commission of the Northern Territory (1998) 151 ALR 263 Stoving v Wise (1996) AC 923 Froom v Butcher [1976] QB 286 Gunning v Fellows (1997) 25 MVR 97 Pennington v Norris (1956) 96 CLR 10 Sungravure Pty Limited v Meani (1964) 110 CLR 24 DECISION : See page 144.311 iii INDEX Page/Para Introduction 1.1 Evidence concerning the accident 2.3 Mrs. Narelle Barber 10.21 Senior Constable Harley Barber 13.28 Senior Constable Campbell 15.33 Ambulance Officers 20.42 The paramedics 21.44 Ms Lynne Mowatt 22.45 Mr Peter Suvaal (the plaintiff's father) 25.53 Dr Stephen Ruff 28.59 Mrs Carmel Suvaal 29.61 Miss Annabelle Hayter 30.65 Ms Ruth Quirk 32.69 Sergeant de Belin 33.71 Mr Paul Thompson 34.74 Mr Stuart Washington 35.76 Ms Jennifer Hinton 36.79 The plaintiff's claim form 37.81 Was there a motor vehicle involved in the accident? 39.84 Due inquiry and search 52.115 The case against the second defendant 56.124 Did the council design and construct the relevant portion of the road? 58.128 Whether the plaintiff has proved that the design and construction of the relevant part of the road was negligent when measured against the standards of design and construction at the time when the road was built 69.152 Did the potholes and rough section of the road cause the plaintiff's accident? 72.158 The state of the road generally 78.171 Were drains designed and constructed when the road came into existence? 80.175 Definition of table drain 81.177 Drainage on the western side of the road 86.188 Drainage on the eastern side of the road 88.193 Repair maintenance of the surface of Quorrobolong Road, Cessnock 96.209 The section of the road 200 metres north from the Barbers' southern boundary 103.224 Cause of pavement failure 111.240 Was it reasonable for the Council to carry out temporary patching rather than permanent patching or resealing the road? 121.258 Funding criteria used by Cessnock Council in the maintenance and repair of roads? 123.263 Causation 133.285 Adjustment of the head stem of the bicycle and filing of the handlebar stem 135.288 Contributory negligence 142.307 Judgment 144.311 140 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 10 NOVEMBER, 2000 20668/94 - ANTHONY PETER SUVAAL v THE NOMINAL DEFENDANT & ANOR JUDGMENT (Personal injury - bicycle rider; quadriplegic - liability only) 1 MASTER: The plaintiff suffered serious personal injuries when he was involved in a bicycle accident. He is currently 43 years old. As a result of this accident which occurred on 2 February 1993, the plaintiff was rendered a quadriplegic. It has been agreed between the plaintiff and first defendant that if the first defendant is found liable the damages are to be assessed at $2,350,000. It has also been agreed as between the plaintiff and the second defendant that if the second defendant is found liable damages are to be assessed at $2,800,000. The first defendant is the Nominal Defendant. The second defendant is Cessnock City Council. Liability is in issue. The first defendant and second defendant have cross claimed against each other seeking indemnity and contribution. The third cross claim has been dismissed. 2 The plaintiff alleges that an unidentified car for which the first defendant is responsible brushed against him and forced his bicycle off the road causing him to suffer serious personal injuries. Alternatively, the plaintiff alleged that the second defendant, Cessnock City Council, poorly designed, constructed, maintained and repaired Quorrobolong Road which caused him to lose control of his bicycle and suffer serious personal injuries. I shall cover firstly, the accounts of the accident given by the plaintiff and other witnesses; secondly, whether there was an unidentified vehicle; thirdly, due enquiry and search; fourthly, the state of Quorrobolong Road and the council's responsibility; fifthly, the finances of the council; and sixthly, causation, contributory negligence. Evidence concerning the accident 3 The plaintiff was a bicycle riding enthusiast and had been riding a bicycle for 20 years. He was 35 years of age at the time of the accident. He resided in Cessnock having lived there all his life. He was married to Lynne Maree (now Mowatt). They have since divorced. He had competed professionally as a cyclist in the past, and at the time of the accident intended to make a come back. The accident occurred about 2 to 3 months before the cycle circuit was due to commence and the plaintiff was in training. 4 For the prior 15 to 18 years the plaintiff had been riding his bicycle on the same training route which was from his house in Cessnock, along a road that is known as Kitchener Road. At some point, the name of the road changes from Kitchener Road to Quorrobolong Road. I shall refer to the road as Quorrobolong Road in this judgment. It was the plaintiff's practice that he rode his bicycle along this road in a southerly direction to the cattle ramp at Heaton. The cattle ramp is on the border of Heaton National Park. The plaintiff upon reaching the cattle ramp would turn around and return home in a northerly direction by the same route. From the plaintiff's house to the cattle ramp at Heaton was a distance of about 18 kilometres. The plaintiff chose to use this road as it was reasonably quiet with low traffic flow and because it "was the best of the worst roads in Cessnock that he could find" (t 102.15). The plaintiff would ride on this route about 2 or 3 times per week when doing flat training. The flat training sometimes included a speed section where the plaintiff rode his bicycle at three quarter pace for a set section of the road and timed himself with a stop watch. This speed section was a distance of about 15 kilometres and finished at a line across the road at South Cessnock. 5 There were no eyewitnesses to the accident. The court found this case a difficult one. As there were no eyewitnesses to the accident it has been necessary to examine critically each witnesses evidence. The plaintiff's version of events is as follows. The plaintiff gave evidence that he arrived home from work at 3.30 pm but could not remember where he had been working that day. He said that he spoke to his wife and got changed into his training gear. It is his wife's evidence that she did not arrive home from work until 5.45 pm which was well after the plaintiff said he went on his training run. It may have been that he spoke to his wife on the telephone. At about 4.00 pm on 2 February 1993 the plaintiff left home on a short training ride. He intended to take the return trip to the cattle grid at Heaton as previously described. He estimated that he travelled from his house to Heaton in about 30 to 40 minutes. That means that in the plaintiff's timing of events, he would have arrived at Heaton at approximately 4.40 pm. 6 When he reached the cattle ramp he turned around and commenced the return leg of the journey to his home. He was undertaking a speed section of about 15 kilometres which would have ended at a line on the road at Cessnock South. He was travelling at 3/4 pace at about 25 miles per how. He had completed 131/2 to 14 kilometres of speed session when the accident occurred. At about 1 to 1.5 kilometres short of the finish, he heard a vehicle behind him (t 94.30). He looked under his right arm (as cyclists do) and saw a station wagon approaching from about 50 metres away. The vehicle was travelling in the same direction. He cannot be accurate about the distance between them. He was riding on the left hand side of the road about 2 foot in from the edge of the road. In cross examination he said that he travelled on the left hand side of the road as close as possible but out a bit to avoid the potholes at the edge. 7 The plaintiff's best estimate is that he saw the station wagon about 10 seconds before the accident occurred (t 95). In cross examination he said that the station wagon was on the left hand side of the road and that he looked for a couple of seconds but does not know the colour of the vehicle or whether it was light or dark. He was unable to estimate the speed of the vehicle or number of occupants. 8 In cross examination he gave evidence that he could not say what part of the vehicle struck him. The car brushed up against his right leg and although he is not one hundred percent sure, he thought that it hit his right hand and or the handle bar of the bicycle as he had a lump on his right hand for some time after the accident. He was not sure whether the vehicle hit his hand, however he is sure that it brushed against his leg and not his arm (t 77.50). He agreed that "brush" and "hit" mean the same thing. The blow was not very hard but was strong enough to force him onto the rough edge of the road and onto the potholes a 78.10). He says that from the time of the accident it has always been his memory that the car came into contact with his right thigh (t 87.30), and that he had no doubt about this. 9 The plaintiff said that the unidentified vehicle forced the plaintiff's bicycle into two or three potholes and the rough edge of the road (t 21.32). He bounced a couple more times and the handle bars of his bicycle turned anti-clockwise to about 90 degrees to the right from the position that they should have been in (t 22.55). He still had his balance but was unable to steer the bicycle. The bicycle and the plaintiff veered onto the dirt and to the left. He identified the area in which he left the road by placing two crosses on photograph 8 of Ex N. The bike went straight across the bitumen onto the right hand side of the road. While the plaintiff retained his balance he was unable to steer the bicycle and he saw he was heading towards two trees. The plaintiff identified the two trees by placing a cross (of sorts) on photograph 7 of Ex N. He leant his left leg on the frame of the bicycle to steer it between the two trees to a flat grassy area. 10 The front edge of his bike dropped, he hit the top of his head on the ground and he was knocked unconscious (t 22). He does not know how long he was knocked out. When the plaintiff regained consciousness he was lying on his back. He realised that he was frothing at the mouth and that his helmet strap was choking him. The plaintiff removed his helmet and knew that something was badly wrong as he was unable to feel down past his chest and his legs were tingling badly. The foam mould (Ex K) of his bicycle helmet was smashed into pieces. 11 The plaintiff estimated that the accident happened between 5.15 to 5.30 pm. This is consistent with his timing from when he left home. He lay in the ditch for about I to possibly 1½ hours and felt "stuffed". During this time "he knew where he was at" and "had his thinking processes". As he lay in the ditch he thought he might die and not see his wife or children again. He wondered whether someone would find him and whether he would live or die (1 25.50). He said to himself "rotten mongrel just run me off the road and left me there". While he was lying in the ditch he heard cars come by on the road and he yelled out "help", but no-one stopped. Every time he yelled a dog would bark. The barking drowned out his cries for help. After about 1½ hours he heard a car pull up at what he thought was the Barbers' house, he heard a car door slam and he yelled out. The dog barked once again. A female voice told the dog to "shut up". The plaintiff then yelled louder for help. The last thing the plaintiff remembered from the accident scene was that Mrs Barber came over to him. He specifically does not remember the police and ambulance officers nor anyone else who arrived on the accident scene. The next thing he remembers is about two to three weeks afterwards in hospital. 12 The plaintiff fixed the location of the accident as occurring on the western side of Quorrobolong Road just north of the Barbers' driveway. The Barbers had a property and house on the western side of the road heading north towards Cessnock. At the section of the road going north towards Cessnock from the southern boundary of the Barbers' property for approximately 200 metres north, the plaintiff described the condition of the road as being patches after patches and potholes and the edge of the tarred road as being very rough, and where the tar ended and met the dirt the edge was all broken away (t 27.5). The plaintiff could see the new patches as they were darker in colour and these patches were not level with the old road. The plaintiff stated that even after repair the edges of the road were still rough. 13 About 150 metres north from where the plaintiff was found there is a creek called Black Creek. It runs under the road from east to west which is just around the left hand curve going north where the creek runs into a culvert under the road. This creek runs behind the Barbers' property from Kitchener into an old mine dam called Southey Dam. Southey Dam is on the eastern side of Quorrobolong Road. 14 In the plaintiff's fifteen or so years training on his bicycle on that route, he had never hit a pot hole which had caused him to lose control and go off the road. The plaintiff was adamant that had he not been brushed by the car his bicycle would not have gone off the road and into the potholes. He was also adamant that it was the car that caused the steering direction to be altered. He denied that he was proceeding south (t 100.16) and that there was no motor vehicle involved. (t 101). He also denied that the reason for the accident occurring was because he went over a rough section of road and that the handlebars of the bicycle collapsed. (t 101). 15 Broadly speaking, the diagram below shows the manner in which the plaintiff alleges the accident happened. (From report of Mr Ross Lee Smith - Ex D2/18). 16 I carefully observed the plaintiff giving evidence during very lengthy cross examination. His testimony was not shaken except towards the very end. He gave two answers, one at the end of cross examination and the other at the end of re-examination which are troublesome. The plaintiff maintained that he had no recollection from when he spoke to Mrs Barber until 2 to 3 three weeks after the accident. While I appreciate that the plaintiff is not able to be specific as to the actual date his memory returned, it appears that he had no memory of the events of the accident from 3 February 1993 to 16 February 1993. The plaintiff had previously given evidence that he had spoken to a social worker Ms Hayter shortly after his memory returned. In cross examination, he gave the following evidence: "Q. Do you remember telling her you had been forced off the road by a car or not? A. Yes, sir. Q. And that you had hit a bad part on the road? A. Yes, sir. Q. And apart from that lady, are there other people to whom you have spoken to about it? A. Yes, sir. Q. In those - upwards - in the period 2 February up to 16 February 1993? A. Yes, sir." 17 This last answer contradicts the evidence he previously gave. As a result, I am not satisfied that the plaintiff does not have some memory of the versions of the accident he gave to others from the date of the accident until 16 February 1993. I shall refer to the plaintiff's versions of hitting potholes and patches later in this judgment. These factors do not mean that I find the plaintiff an untruthful witness. However, it has meant that I have examined his evidence with caution. 18 The plaintiff does not remember seeing Dr Ruff during the first few days following his admission to hospital. He said that he had a lot of pethidine which caused him to hallucinate and think that he was up in the roof. He said that he received pethidine and morphine during the first eight weeks after the accident. The hospital records (Ex P) show that he refused pethidine on 6 February 1993. I cannot find any further reference to pethidine nor any reference to morphine. The first time he thought he discussed the details of his accident was about the third week in hospital. 19 The plaintiff's version of events differs from that of Mrs Barber and the police officers, Senior Constable Barber (Mrs Barber's husband) and Senior Constable Nathan Campbell who arrived about 15 minutes after Mrs Barber, and the ambulance officers and paramedics who attended the accident. It does not fully accord with the version contained in the motor accident personal injury claim form dated 15 September 1993 (Ex L) nor that taken down by Senior Constable (now Sergeant) Les de Belin of Ryde police station on 10 June 1993. 20 I will refer to these witnesses' evidence in chronological order from the time that they spoke to the plaintiff after the accident occurred. First at the accident scene was Mrs Barber. Mrs Narelle Barber 21 The plaintiff in cross examination stated that he could not remember what she said to him but he does remember saying to her "Don't touch me. Get the ambulance." (t 90.5). He does not recall saying anything else to Mrs Barber. Narelle Arm Barber gave evidence. She was an independent witness who gave truthful evidence. She has lived in the Barber residence at Lot 1 Quorrobolong Road Cessnock for 13 years (since 1986). She was at the time of the accident married to Senior Constable Barber. They have since divorced. On the day of the accident she was at home with her children. It was a hot summer's day. Her children were playing at the stables and told her that there was a man out the front calling out for help. She got her dog and walked across the road down towards Cessnock on the eastern side of the road. It had not been raining that day and the road was dry. However, it did rain after the accident occurred. 22 She thought it was about 7.00 pm when she found the plaintiff but really had no idea of the time. It was still daylight. She saw a bicycle and then she saw Mr Suvaal who was lying behind trees in a ditch on his back. She places the plaintiff as lying about 40 to 50 metres north of her driveway on the opposite side of the road. He was lying to the north of a forked gum tree in an east/west direction. The bike was to the north of the plaintiffs body lying on its side about 1 to 1.5 metres away from him but closer to the road than the plaintiff. 23 The plaintiff was lying on his back across a boulder with his head facing north east and feet closer to the road in a ditch. She heard him calling "Help" and "Can anybody hear me" in a very low muffled voice which was hard to hear. 24 In a statement made in 1994 Mrs Barber described the plaintiff's calls for help as feeble. She recognised that it was Tony. She agreed in cross examination that when she arrived and first spoke to the plaintiff, he was semi-conscious and his speech was slurred or slow. Mrs Barber gave evidence that she said to the plaintiff "Ah have you been hit by a car." He replied "Ah, No." This conversation relating to the car does not appear in her statement made to an investigator in May 1994. Her explanation for not mentioning the car in her statement was that she only answered the questions that he asked her (t 643.18). I accept this explanation. 25 Mrs Barber knew that the plaintiff was badly hurt. She called out to her children to telephone "000" for an ambulance. She reassured the plaintiff that the ambulance and police were coming and that they should not take long to arrive. She observed that the plaintiff was conscious. He said to her that he was badly hurt and that he was "no good" or words to that effect. He also said that he had a sensation of ants crawling on his neck. She ran her finger nails down his legs and asked the plaintiff if he could feel it. He said "No". She noticed that his neck was puffy and he told her that he could not feel any sensation. According to Mrs Barber, the plaintiff spoke in a sensible manner and appeared to be aware of what was going on. In cross examination she said that although the plaintiff's speech was slow, it was not slurred. In her statement to an investigator retained by the plaintiff she stated that the plaintiff was semi-conscious because he was quiet. She added that she was not medically trained. 26 Mrs Barber observed the two ambulance officers arriving and thought that they had a one sided conversation with the plaintiff. She thinks that the plaintiff was aware of what was going on. On several occasions she described the events of that afternoon as seeming to go in slow motion. Her husband and Senior Constable Campbell also arrived at about the same time as the ambulance officers. Mrs Barber heard the police speaking to the plaintiff and she thinks that the plaintiff spoke back. She heard the plaintiff say "I'm stuffed." She saw two paramedics arrive in the helicopter. At that time there were a few people by the side of the road. The police remained. By the time the helicopter took off it had become dark. Mrs Barber noticed that the bicycle was lying on its side in two pieces. His helmet was smashed into pieces. She recalled that Mr Suvaal's father attended the accident scene but she could not remember if the plaintiff's wife or the plaintiff's brother and his wife attended the accident scene. According to Mrs Barber, the plaintiff and his wife called at her home to thank her for her help. The plaintiff does not remember doing so. 27 The next people to arrive at the scene of the accident were the two police officers namely Senior Constables Campbell and Barber. Both police officers gave evidence. Senior Constable Nathan Bruce Campbell was in charge of the investigation and completed the paperwork. Senior Constable Harley Barber 28 Senior Constable Harley Barber had been in the police force for 23 years mainly in general duties. He knew the plaintiff to say "good day" to and knew his family. He gave evidence that he and Senior Constable Campbell arrived at the accident scene a bit earlier than 8.00 pm. The ambulance had not yet arrived. He observed the plaintiff in the gutter on the eastern side of Quorrobolong Road two to three metres off the edge of the bitumen just north on the other side of his driveway. The plaintiff was alone. He identified the accident site in photograph 1 of Ex D2/4 Senior Constable Barber was unsure which tree the plaintiff was located behind but the plaintiff was lying on his back north of the tree and slightly further to the east, about 2 to 3 metres from the edge of the bitumen. He saw a push bike leaning up against a tree. The handlebars of the bike could be withdrawn from the fork section of the bike. He saw the helmet. 29 A short conversation took place. Senior Constable Barber asked the plaintiff how he was. The plaintiff replied words similar to "Harley I'm stuffed. I'm stuffed". Senior Constable Barber said "What do you mean by that." The plaintiff replied "I've got no feeling." Senior Constable Barber said "Was there a vehicle involved" and the plaintiff replied "No." Senior Constable Barber said "Are you certain about that" and the plaintiff replied "Yes" (t 571.30). The plaintiff told Senior Constable Barber that he was travelling along the road as he always did when he hit a couple of potholes and the handlebars of the pushbike came away and he hit a tree. Senior Constable Barber stayed with the plaintiff and they did not talk a real lot. Senior Constable Barber said that there was nothing at the scene of the accident that would indicate to the contrary that no vehicle was involved (t 575.5). 30 Senior Constable Barber was of the opinion that the plaintiff was conscious at the accident scene. During the time he was with the plaintiff he (the plaintiff) was quite lucid and knew where he was and the events that occurred. Senior Constable Barber did not think that it was fair to say that the plaintiff was semi-conscious. The plaintiff's speech was not slurred. The plaintiff was worried about his condition and he knew that he had a problem. The plaintiff's responses to questions were logical. 31 Senior Constable Barber arranged for the helicopter to land in a nearby paddock. He recalled having a conversation with the plaintiffs father but does not know if it was that night or the next day. He thought that the plaintiff's wife may also have visited the accident scene. Senior Constable Campbell 32 Senior Constable Campbell had been a police officer for 22 years and is now in the Internal Affairs section of the police force. Prior to the investigation of this accident he had not met the plaintiff or members of his family. 33 Senior Constable Campbell located the plaintiff on the opposite side of the Barbers' driveway to the north of the driveway. He was lying on the eastern side of the road on his back with his head facing north and feet facing towards Cessnock. The plaintiff was positioned on a slight angle with his feet closer to the roadway than his head (see photograph 3 Ex D2/4). He remembers asking the plaintiff his name, where he lived, what had happened and if any other vehicles were involved. 34 Senior Constable Campbell completed a P4 Accident Report Form, an Occurrence pad entry and an entry in his note book. The note book has since been lost. Senior Constable Campbell returned to the police station at 10.05 pm on 2 February 1993 and completed the Occurrence pad entry (Ex D1/11). This entry records that at 8.00 pm Mrs Barber had found the plaintiff lying on his back in the bush about four metres off the road and beside him was a pushbike in a damaged condition. He was conscious and complained of injury to his back to Mrs Barber. Senior Constable Campbell placed the accident as occurring in Kitchener Road, about 800 metres south of Racecourse Road. 35 The report further stated that it was established from the plaintiff that he was riding his push bike south (my emphasis added) in Kitchener Road when it collapsed from beneath him. It was unknown what he came into collision with but the impact shattered the bicycle helmet that he was wearing. When Senior Constable Campbell was asked why he wrote south, he said that it was because the plaintiff said that he was heading towards Kitchener which is south (t 551.35). The ground underneath where the plaintiff lay consisted of rock and branches. He also recorded that an inspection of the bicycle revealed that the steering rod assembly had come out of its respective socket. Although the Occurrence pad recorded that the accident occurred at 8.00 pm Senior Constable Campbell gave evidence that he thought there was plenty of daylight and that it was earlier than 8.00 pm perhaps 7.15 or 7.30 pm. 36 It was put to the plaintiff in cross examination that the following conversation had occurred. Senior Constable Campbell allegedly said to the plaintiff "What happened?" and the plaintiff replied "The bike just collapsed underneath me." The Senior Constable then said "Was there another vehicle involved?" and the plaintiff replied "No." The plaintiff also told the Senior Constable that he was going "south". The plaintiff has no recollection of this conversation and denies that this is the manner in which the accident occurred. 37 On 2 February 1993 the P4 Accident Report Form (Ex D1/10) was also filled out by Senior Constable Campbell. The P4 states that the accident occurred at dusk. It recorded that the push bike appeared to crash into a tree. Handlebar of push bike may have snapped. He obtained this information from his inspection of the bicycle (t 551). Driver ejected and unable to account for crash. Nil witnesses. By the entry "responsible party unknown" Senior Constable Campbell gave evidence that it meant to indicate that no-one was to blame for the accident. If it was a mechanical fault it becomes unknown. On 17 April 1999 the P4 was completed. Senior Constable Campbell's explanation for this delay was that he would have only received the blood alcohol report back and he needed to sight this before he could sign off the P4 form before filing it away. Both the Occurrence pad and the P4 are contemporaneous records. 38 Senior Constable Campbell gave evidence that when he went over to the plaintiff, he (the plaintiff) was conscious. Senior Constable Campbell remembered that he asked the plaintiff his name, address, what happened and whether there were any other vehicles involved. The plaintiff answered his name and address correctly. In relation to the question "Was any vehicle involved?" The plaintiff relied "No". He asked this question because had a vehicle been involved he would have stepped up the investigation (t 552.10). From what the plaintiff told Senior Constable Campbell and because there were was nothing else at the scene that would indicate another vehicle (such as broken glass) he did not investigate the matter any further. 39 When the plaintiff answered the questions asked by Senior Constable Campbell, he was lucid and his answers made sense (t 551.10). Senior Constable Campbell gave evidence that he had no reason to doubt what the plaintiff told him because he was talking "just like you and I" (t 552.40). He denied that the plaintiff was semi-conscious and that his speech was slurred or that he was vague and in shock. He also denied that when he went to the accident site the plaintiff could not talk to him. Senior Constable Barber remained with the plaintiff while Senior Constable Campbell headed back and forth to the police car organising ambulances. Once the ambulance arrived, they (the police) were a bit in the background. 40 Senior Constable Campbell did not carry out any further investigations until about three months after the accident. He received a call from a private investigator who informed him that the plaintiff was in hospital. The plaintiff had claimed another vehicle had run him off the road which caused his injuries. This was the first time that Senior Constable Campbell had heard anyone make an allegation that there was a motor vehicle involved in the accident. Senior Constable Campbell told the investigator that he would submit a report and arrange for the plaintiff to be interviewed. He did so. Senior Constable Campbell cannot recall the plaintiff mentioning anything about potholes. He denied telling anyone that the plaintiff was unable to be interviewed on the night of the accident. 41 There are two inconsistencies in Senior Constable Campbell's evidence. The first one is that his account of a conversation with Mr Redman does not accord with Mr Redman's account. Mr Redman, a private investigator gave evidence that on 27 May 1993 he spoke by telephone to Senior Constable Campbell and asked him firstly, what enquiries he had made to find the offending vehicle; and secondly, was he aware that a station wagon had been involved in this matter (t 297.5). According to Mr Redman, Senior Constable Campbell replied that he did not know that there was a vehicle. According to Mr Redman, Senior Constable Campbell told Mr Redman that the plaintiff was vague and in shock and basically he was not able to interview the plaintiff at the time of the accident. Mr Redman said that Senior Constable Campbell stated that he intended to get the Ryde police to interview the plaintiff and obtain a statement. This part of the conversation is confirmed by both parties. The second inconsistency is that in relation to the words that the plaintiff "was unable to account for the crash" Senior Constable Campbell considered that if he wrote this it would have been untrue. This was written down by him on the P4 report. He then said that the plaintiff could not account for the crash and could not account for why the bike lost control. In other respects, Senior Constable Campbell's evidence is consistent with the evidence of Senior Constable Barber. Ambulance officers 42 The next personnel who attended the accident scene were two ambulance officers. They were followed by two paramedics. These officers arrived between 8.08 pm and 8.22 pm. The two ambulance officers who attended to the plaintiff at the accident scene, were Gary John Campkin and Matthew Clark. They both gave evidence. Mr Campkin had been an ambulance officer for 15 years and Mr Clark had been one for 8 years. At 8.08 pm they arrived at the accident scene and found the plaintiff laying along side the road in some sort of ditch. Mr Clark commenced to make observations and filled in the report form (Ex D1/16). The report form records that the plaintiff stated that he was riding a push bike when the handle bars collapsed causing him to be propelled forward into a gully. The plaintiff stated that there was no loss of consciousness. Mr Clark noted in his report that the plaintiff's injuries were severe pain to the cervical spine, tingling to fingers and loss of sensation to all body regions below the neck and loss of movement in legs. He noted that the plaintiff was alert and conscious. 43 The ambulance officers made observations of the plaintiff at 8.08, 8.18 and 8.28 pm and at those times the plaintiff's level of consciousness was at a maximum an optimum of 5. This means that the plaintiff was quite alert and was able to listen to their instructions, talk to them and converse in a normal manner. Throughout this time the plaintiff had an optimum Glasgow coma score. This test indicated that the plaintiff did not have significant head injuries. Mr Campkin's memory of the accident scene is vague but he could remember that the plaintiff was conscious and talking. He remembered that the plaintiff was quite aware of what was going on. Matthew Clark said that although the plaintiff was conscious he was agitated and frightened. The paramedics 44 Next on the scene were the paramedics who arrived by helicopter. Louise Alderson (then Bishop) and Tim Taylor also gave evidence. Mr Taylor cannot assist as he has absolutely no recollection of the events surrounding the accident. Hence his evidence was of no assistance. Ms Alderson had been a paramedic for 13 years. She completed the treatment report and obtained a history from the plaintiff. She recorded that they arrived at 8.22 pm. The history she obtained from the plaintiff and noted in the treatment report, was that the plaintiff was a rider of a push bike whose steering failed and crashed down a one metre embankment, landing heavily on boulders on the neck head area. She then made observations and recorded his medical condition. His condition was similar to that noted by ambulance officer Clark. She carried out observations on the plaintiff at 9.01, 9.20, 9.45, 10.00 and 10.15 pm and at all of these times the plaintiff had a maximum level of consciousness score of 5. The Glasgow coma scale remained the same and there was still no indication of brain injury (t 623.50). She reported that the plaintiff was alert. It was her view that the plaintiff was lucid and conscious during those times. The observation was that even though he had been given two conservative amounts of morphine at 9.00 and 9.30 pm this did not effect his level of consciousness. Ms Alderson had a good recall of events and I accept her evidence. Ms Lynne Mowatt (the plaintiff's former wife) 45 Lynne Maree Mowatt who was the plaintiff's wife at the time of the accident gave evidence. On the night of the accident she recalls that she left work at NIB Wallsend and drove for about 45 minutes to her home. Shortly after she arrived home there was a message on her answering machine from a person who identified herself as Mrs Barber. Mrs Barber made no mention in her evidence of telephoning Ms Mowatt on the night of the accident. Mrs Mowatt thinks that it was between 5.45 pm and 6.30 pm that she drove out to Mrs Barber's house. She had her elder daughter in the car. Mrs Barber looked after her daughter while Mrs Mowatt rang her mother. Mrs Barber denied telephoning Mrs Mowatt. Mrs Barber fixes the time of the accident at about 7.00 pm. I prefer Mrs Barber's evidence. 46 When Mrs Mowatt attended the scene of the accident, she ran across the road and saw her husband on the side of the road in a ditch. She says that she did not know if he was dead or alive. The plaintiff was lying parallel to the road but about 15 feet away from the road and his head was facing towards town (Cessnock). There were two ambulance officers, one male and one female and they were trying to put the stretcher straps underneath the plaintiff. Mrs Mowatt says that she was either kneeling or sitting with her hands around the plaintiff's head. She does not remember speaking to her husband and she does not remember anyone else speaking to him either. The plaintiff did not speak to her. She estimates that she was with her husband for about one hour. It is her view that the plaintiff was not alert or oriented because had he been alert he would have been speaking to her. 47 Mrs Mowatt says that about half an how after she arrived at the accident scene the plaintiff's father, brother and sister-in-law arrived. She did not see the push bike at the accident scene. She denies that the ambulance arrived at 8.06 pm and says that she arrived at no later than 6.30 pm. However, she conceded that she was hysterical and had lost track of time. She had already lost one husband in a motor cycle accident and she did not care how the accident occurred and was just grateful that the plaintiff was alive. 48 The plaintiff was then put into an ambulance and driven slowly over a paddock to an awaiting helicopter. Mrs Mowatt got into the front of the helicopter and accompanied her husband to Royal North Shore hospital. She did not speak to him at any time from when the accident occurred until she arrived at Royal North Shore hospital. In the helicopter, the rescue squad were putting tubes down his nose. 49 At Royal North Shore hospital the plaintiff was taken into theatre and Mrs Mowatt sat outside until about 2.00 am the next morning. She does not remember having a conversation with anybody, nor does she recall being asked any questions during the admittance of the plaintiff or while she was waiting outside the theatre. At about 8.00 am the next morning she went home to Cessnock and then returned to the hospital. 50 Mrs Mowatt spent the following days and nights for the next 8 months at the plaintiff's bed side. She says that for the first 2 weeks the plaintiff was pretty much "off his face" on pethidine and that the plaintiff was hallucinating and thought that he was floating on the ceiling or that his nose was touching the ceiling. After about 2 or 3 weeks the plaintiff said to her "I was hit by a brownie coloured station wagon" and that he was not sure if it was a station wagon but was sure that it was brownish in colour. She did not report the accident or do anything about it because she was too busy coping with each day at a time and worrying about how the plaintiff was coping. She remembers a social worker speaking to her but does not recall the date. She says that her main recollection and focus of the social worker speaking to her and the plaintiff was the importance of getting the house changed over so that he could come home. 51 Mrs Mowatt gave evidence relating to the existence of a signed statement which is incorrect. Mrs Mowatt remembers attending the office of the plaintiff's solicitor Michael Ryan in Sydney on one occasion during the first year after the accident and telling him how the accident occurred. She gave evidence that she attended his office sometime later and she was shown a typed statement and told to read over it to see if it was correct and sign it. She read it over and checked it as being correct. According to Ms Mowatt the contents of the statement were as follows. Her husband had told her that he had been hit by a brownie coloured station wagon, that he could not be sure if it was a station wagon, but that it was brownish in colour. This statement could not be found and was not produced at court. She said that when she was telephoned by the plaintiff's solicitor to attend court in relation to this matter, she told the person that she had already spoken to a solicitor in the office of Mr Ryan and she had previously made a statement. The solicitor replied that she would fax the statement to Mrs Mowatt. She never received this statement. The plaintiff's counsel informed the court that it does not exist. 52 I have reservations with Ms Mowatt's recollection of events for a number of reasons. Firstly, at the accident scene she was understandably emotionally distressed. Her concern was for her husband's welfare and she was concerned because did not want to lose another husband in an accident. Her later recollections are inconsistent with other witnesses. It is likely that Mr Mowatt did not relay the information about the brownish station wagon onto the plaintiff's father. She gave some detailed evidence about reading over and signing a statement for the plaintiff's solicitor. This statement does not exist. Overall, I have come to the conclusion that some of her evidence is unreliable. As it is my view that Mrs Mowatt's recollection of events is unreliable, I have reservations in accepting it. Mr Peter Suvaal (the plaintiff's father) 53 Peter Suvaal the plaintiff's father gave evidence. He says that on the day of the accident he had been working with his son the plaintiff, painting a block of units and that they knocked off work at about 2.00 pm. After 7.00 pm Mr Suvaal says that he received a phone call about the accident. When he arrived at the accident scene it was still daylight. He saw some ambulance officers working on his son. The plaintiff's wife was sitting at the plaintiff's head. The plaintiff's body was lying parallel about 15 feet from the eastern side of the road in a heap of rocks in a dip of two to three metres. His head facing towards Cessnock and his feet facing towards Kitchener. The bike was 6 feet away with the front wheel of the bike facing Cessnock and the back wheel facing Kitchener. The plaintiff was lying on a lump of concrete and laying in a ditch which was 2 to 3 feet deep. Mr Peter Suvaal was standing about 15 feet away from the two ambulance officers so he was unable to hear if his son spoke, nor did he hear any conversation that the ambulance officers may have had with his son. He did not see police officers at the accident scene. 54 After about half an how, according to Mr Suvaal the plaintiff was put into an ambulance and driven 100 metres down the road to where the helicopter had landed. The plaintiff's father drove behind the ambulance and when he arrived in the paddock he saw a police car and Senior Constable Barber. According to Mr Suvaal he stood next to Senior Constable Barber. The conversation between the police officer and himself was that Senior Constable Barber said that "Everything is going to be okay." Mr Suvaal did not speak to the ambulance officers. In the paddock he saw a further two ambulance officers that had arrived with the helicopter. Before departing the accident scene Mr Suvaal took the bicycle home and put it into his workshop. The bicycle and all its components were tendered as exhibits. 55 Mr Suvaal and his wife visited the plaintiff every day during the first month. The day after the accident Mr Suvaal said that his son was barely conscious and could not talk as he had tubes down his throat (t 314.45) (see Ex O). During the first week Mr Suvaal says that he had no conversations with his son because his son did not look too good and he had pins and weights on each side of his head and tubes down his throat. He thought that his son was unable to talk. After about one week or perhaps it could have been a fortnight Mr Suvaal says that the plaintiff told him "Something went past and I couldn't recall much after that." Mr Suvaal does not recall any more of the conversation. 56 Mr Suvaal was asked about a statement that he made to a journalist Mr Bruce Wilson. Mr Suvaal recalled meeting Mr Wilson in the street and saying "Tony has little recollection of what happened." Mr Suvaal's evidence was that the conversation with Mr Wilson occurred after his son had made the statement in hospital. The statement recorded that the plaintiff was travelling towards Kitchener. Mr Suvaal says that it was his view that the plaintiff was travelling towards Cessnock because of the way in which the plaintiff was lying and the way in which the bicycle was facing. He denied telling the journalist that the plaintiff was travelling towards Kitchener and thinks that the reporter must have misunderstood him. In cross examination Mr Suvaal said that he had not already spoken to Tony when he spoke to the reporter. This is inconsistent with his earlier evidence. 57 Mr Suvaal recalled having a conversation with his wife. His wife told him that the plaintiff had said to her "something went past or something hit me." Although his wife is more certain than not that she did not relay this information onto him. 58 Mr Suvaal gave evidence that he took some photographs a couple of days after the accident. He had some of them at home and that he gave some of the photographs to his solicitor. These photographs were not produced in answer to a subpoena addressed to him. Nor were they produced by his solicitor. I have some reservations with Mr Suvaal's evidence due to two inconsistencies, namely his explanation of why the reporter got it wrong and his explanation about the existence of the photographs. Dr Stephen Ruff 59 On the afternoon of 3 February 1993 the day after the accident, Dr Ruff the plaintiff's treating orthopaedic and trauma surgeon, obtained a history from the plaintiff. He spoke to the plaintiff for between 15 and 20 minutes. The history Dr Ruff obtained was that the plaintiff had a bike accident and the unusual aspect of the bike accident was that the handlebars failed, and that the plaintiff had gone head first over the bike striking his head on the ground. The plaintiff denied giving Dr Ruff such a history. 60 Dr Ruff said that the plaintiff gave no history of a car accident. At the time he obtained this history the plaintiff was aware of where he was, was alert and oriented and had an ability for rational expression. He was not hallucinating. It was Dr Ruff's opinion that for two to three hours after the accident the plaintiff would have suffered a severe blow to the head but did not imply that the plaintiff had a head injury. However the plaintiff may have been in a state of extreme agitation. (Ex D1/12 and D1/13). Dr Ruff could not recall the plaintiff providing a history that he was hit or run off the road or that there was a car involved in the accident. Although admission notes refer to a head injury, Dr Ruff on re- examination stated that the plaintiff was not treated for a head injury and his Glasgow scale scores were normal upon admission to hospital. Also Dr Ruff said that whenever he saw the plaintiff in hospital he was not aware that the plaintiff was hallucinating. Mrs Carmel Suvaal (the plaintiff's mother) 61 The plaintiffs mother gave evidence. She said that she was a very nervous woman who had been receiving medical treatment from her general practitioner for this condition for at least 10 years. She was vague in the witness box. She did not attend the scene of the accident. The day after the accident she went to the hospital together with her husband, son Paul and daughter-in-law. She observed the plaintiff as having bolts around his head, tubes up his nose and down his throat. (see Ex O). She got such a shock that she took off. During the next 2 weeks she visited the plaintiff about 5 to 6 times and from her observation his condition did not change. She says that the plaintiff did not speak to her during this time. He was sedated and in intensive care. 62 At about the 3 week mark the plaintiff's mother says that while she was rubbing the plaintiff's legs, she recalled saying to the plaintiff "It's a terrible thing that happened to you Tony." It was just her and the plaintiff in the room. He replied "I wouldn't be here only for that damn car running me off the road". She cannot remember anything being said after that. She did not ask the plaintiff any questions about the car, nor if the police were called. The conversation was a bit slow but she thought that he showed an improvement in his condition as he was able to say a few words. She said that she told her husband what the plaintiff had said to her. She did not look at her husband's face and he did not make any comment. Mr Suvaal gave evidence that his wife told him that "something went past or something may have hit him". 63 Although no-one had told Mrs Suvaal how the accident had occurred, she had always assumed that the plaintiff had been hit by a car. She gave evidence that no-one had mentioned to her that the cause of the accident was a result of the plaintiff running into potholes. She says that she remained in shock for years after the accident. It did not cross her mind as to whether or not there would be an investigation. She said that if Tony wanted to do something about it then it was for him to do so when he felt better. 64 I found an aspect of Mrs Suvaal's evidence puzzling. She was asked whether it had ever been mentioned to her that the steering on the plaintiff's bike had collapsed. She said that no-one had ever told her that although she did not act very surprised in the witness box when this new fact was put to her. Miss Annabelle Hayter 65 Miss Annabelle Hayter a social worker at Royal North Shore hospital gave evidence. Having seen the plaintiff outside court she recalled him. She does not have any independent recollection of her meetings in 1993 with the plaintiff. The plaintiff vaguely recalls speaking to Miss Hayter about the accident. He says that he told her about the accident but not in detail. He told her about hitting a car and he may have mentioned the potholes. 66 Ms Hayter made 3 entries in the hospital notes and made her own notes on the social-psyche assessment of the plaintiff(Ex Q). On 8 April 1993 she wrote a report to the social worker at Moorong. On 12 February 1993 she saw the plaintiff briefly but there is no reference to the accident in her notes of that visit. On 16 February 1993 the hospital notes indicate that she discussed the accident and issues relating to disability with the plaintiff but was not more specific. On 23 February 1993 her records show that she had a lengthy interview with the plaintiff. They discussed issues relating to disability and rehabilitation. She also discussed the importance of the plaintiff consulting a solicitor. As a matter of practice she mentions this to all seriously injured patients. 67 Miss Hayter's own notes state that the plaintiff was cycling/training. He moved to the side of the road so he would not be hit by a car. He hit potholes, the handle bars collapsed and he was thrown down an embankment. He was conscious during it. She noted that at this stage, the accident did not seem real to him. She did not recall precisely when she wrote these notes. 68 On 16 April 1993 the plaintiff was discharged from Royal North Shore hospital and under went rehabilitation at Moorong. Ms Hayter's report to the social worker at Moorong dated 8 April 1993 records that the plaintiff was involved in a cycling accident, that he was training one day when he hit a pot hole in the road, the handle bars collapsed and he went over the handle bars. The report also says that even after numerous discussions about the importance of receiving legal advice, the plaintiff did not want to contact a solicitor at that stage. I do not place much weight on this later report as Ms Hayter did not have independent recollection of her conversations with the plaintiff. Nor did she know where she obtained the information for this report. The focus of her report was the plaintiff's psychosocial condition and not directed towards how the accident occurred. She cannot recall where she obtained the information to prepare the report of 8 April 1993 but it seems that in part she relied on her earlier notes. Ms Ruth Ouirk 69 Ms Ruth Quirk is a physiotherapist who treated the plaintiff at Royal North Shore hospital. She has no independent recollection of her conversation with the plaintiff. In the physiotherapy discharge summary she reported that on 3 February 1993 the plaintiff was involved in a cycling accident when he was allegedly forced off the road by a car, forcing him to fall down an embankment and over his handle bars. She thinks that she obtained the history from the plaintiff and she wrote the word "allegedly" in recounting the events because she did not witness the accident. The history could have been obtained from the plaintiff's wife. 70 Ms Quirk treated the plaintiff from the 7 February 1993 to 16 February 1993, and gave him around 20 treatments. It was her view that the plaintiff was not hallucinating at the times she treated him. He appeared to know what was going on and there was no indication of hallucination as if there was she would have written it in her notes. She says that the plaintiff understood what she asked him to do as he was co-operative. As for his mental state, she said that she could not tell what his condition Sergeant de Belin 71 On 10 June 1993 Senior Constable (now Sergeant) de Belin interviewed the plaintiff at Moorong hospital. He recorded the interview in his notebook (Ex D1/14). Ms Hinton the social worker was present throughout this interview. The plaintiff told him that at the time of the interview he had a clear recollection of the events of the accident. Sergeant de Belin gave evidence that the plaintiff stated that at 7.30 pm on 2 February 1993 he was riding a racing cycle along Kitchener Road Cessnock which is a bitumen road. He had a helmet on and it was light. 72 He stated that he was on the left side of the road but still on the bitumen heading towards Cessnock and travelling fairly fast because he was training for a race and had a stop watch on. There was no traffic in front of him and none coming the other way. He heard a vehicle coming from behind. He did not have a set of mirrors on his bike so he looked under his right arm and saw a station wagon about 50 metres behind him. He looked ahead and made sure he was on the left side of the road. All he could remember then was that the car hit him and he flew off the bitumen. He could not recall what part of the car hit him other than it hit his handlebars and he flew onto the bitumen. 73 The plaintiff stated to Sergeant de Belin that he then hit rough potholes and that was when the head stem of the frame snapped inside the bike. He had no control over the bike; he went a bit left then right across the road. He had no steering so he leant his left leg on the frame to steer between two trees. He thought there was grass but there was a ditch and he fell down. He blacked out for a short time and woke and took off his helmet because the strap was choking him. He lay there for an hour or so yelling for help. The car did not stop when it collided with him. He could not give any further details of the car that hit him. He thought the reason that his bike left the bitumen roadway was because the car had hit his bike. The plaintiff said that he had not consumed any alcohol for days and had not taken drugs. Mr Paul Thompson 74 Mr Paul Thompson is a long standing friend of the plaintiff. On 2 February 1993, Mr Paul Thompson was told that the plaintiff had been involved in an accident. The next day he spoke to Mrs Barber who indicated the place beside the road where the plaintiff was found. He took some photographs of the scene. At that stage he had no knowledge of how the accident had allegedly occurred. He thought that it was important that there was a record of the road where the accident had occurred. He travelled along this road in the early 90's two to three times per week on his bicycle and also by car. His photographs Ex M and N (the enlarged version of these photographs is Ex D2/4) show mainly the eastern side of the road. 75 Mr Thompson said that a long time after the plaintiff was taken to Royal North Shore hospital he visited him. He said "What happened mate?" and the plaintiff replied "I come off a car. He explained that the car had forced him off the road. Then he hit a rough edge of the road, his bike failed and he fell off (t 269.25-35). At the time the plaintiff told Mr Thompson of these events he was alert and talking rationally but could not talk for very long. I accept this evidence. Mr Stuart Washington 76 Mr Stuart Washington a journalist who was then with the Newcastle Herald gave evidence about an article he wrote for that paper appearing on 1 April 1993. He had previously read a media report relating to the plaintiff's accident and decided to write a human interest story. A few days prior to the article being published Mr Washington went down to Royal North Shore hospital to interview the plaintiff. Mr Washington had a clear independent recollection of part of the conversation in relation to the accident and the other parts of the interview. Mr Washington was an impressive witness and I have no reservations in accepting his evidence. 77 Mr Washington introduced himself to the plaintiff and told him that he was working on a story in relation to the accident. He said to the plaintiff "Can you tell me what happened?" The plaintiff replied "I was training whilst cycling near Cessnock and I was forced off the road by a car." Mr Washington said that from the word "forced" he imported that the plaintiff moved off the road by an involuntary action. Mr Washington does not recall speaking to the plaintiff's father. He thought that he may have spoken to the plaintiff's wife but that she did not give an account of the accident. 78 Mr Washington in his newspaper article reported the plaintiff as saying "A car forced him to one side of the road about one kilometre from his home, and after hitting potholes, part of his bicycle handlebar assembly snapped." The plaintiff was quoted as saying "I just had no control over it, I went straight back across the road (and saw) two big trees there. I leant to go in between the trees. I thought there was grass behind them but I was wrong. There was a drop of about a metre." The article also reported that the plaintiff blamed a large lump of concrete for breaking his back. Thus, in the plaintiff's account to the journalist he gave the cause of the accident as a motor vehicle. There was no mention of the rough road or the potholes. Ms Jennifer Hinton 79 Ms Jennifer Hinton a social worker at Moorong gave evidence. She was present when the plaintiff was interviewed on 30 April 1993 by his solicitor Michael Ryan. She recalled the plaintiff as being very upset when he recalled the accident in this interview. Her recollection is that the plaintiff said to his solicitor Michael Ryan, that he heard a car coming up close from behind him at the time of the accident. In the initial interview with Michael Ryan she cannot recall the plaintiff saying that he was hit or brushed by the vehicle. She also recalled there being some discussion that the plaintiff had gone off the road and fallen into a ditch and that he was calling out for help. She remembers the plaintiff saying that several times he heard vehicles going past and no-one came to his assistance. She remembered that the plaintiff was unable to remember the colour of the vehicle although he stated that it was a station wagon. 80 Ms Hinton recalls being present when Sergeant de Belin interviewed the plaintiff. She recalls that the plaintiff became tearful but cannot recall any of the conversation. The plaintiff's claim form 81 In the claim form dated 15 September 1993 (Ex L) the plaintiff's version of events is recorded at about 7.00 pm on 2 February 1993 while he was peddling in a westerly direction along Quorrobolong Road Cessnock on the southern edge of the roadway. His right side was brushed against in the region of the right thigh and right arm causing him to be forced into a rough section of the roadway at the far edge of the bitumen. After striking the rough section of the roadway, part of the handle bar assembly broke and the bicycle went out of control crashing into an area on the northern side of the roadway. The time of the accident stated in the claim forms differs from the plaintiff's oral evidence namely of 5.15 pm to 5.30 pm. He does not specifically refer to a motor vehicle brushing up against him. 82 Mr Robinson, Dr Thompson and Mr Hillbrick gave evidence as to the cause of the head stem break of the bicycle. Their evidence will be further discussed later in this judgment. Mr Robinson, a metallurgic engineer gave evidence that there was no positive evidence that the bicycle had been struck and damaged by contact with another vehicle. 83 The action is brought against the first defendant pursuant to s 28 of the Motor Accidents Act 1988 on the basis that the injuries suffered by the plaintiff were caused by the fault of the owner or driver of a motor vehicle on a public road, where the identity of that vehicle cannot, after due inquiry and search, be established. There is no dispute that the owner or driver owed a duty of care to the plaintiff. It should have been foreseeable to the owner or driver of the unidentified vehicle that there would be a cyclist on the road. It is alleged that the driver breached his/her duty of care in that he/she failed to keep a proper lookout; failed to exercise proper control of the motor vehicle; drove too close to the plaintiff bicycle; failed to warn the plaintiff of his approach; failed to take evasive action to avoid the plaintiff's bicycle and drove too fast in the circumstances. However it is strongly disputed by the first defendant that there was a motor vehicle involved in the accident. Was there a motor vehicle involved in the accident ? 84 The plaintiff's counsel submitted that as he has given sworn evidence which was tested by cross examination by two experienced senior counsel, his version of events should be accepted. The plaintiff did not deviate from the version he gave in evidence in chief and when he could not remember he said so and made concessions when appropriate. The plaintiff's counsel submitted that it was not possible to come to any view of the plaintiff other than he was a truthful and reliable witness and his evidence should be accepted over and above his out of court statements. 85 The plaintiff's counsel acknowledge that the plaintiff's thoughts given in evidence that the "rotten mongrel" who had not stopped after the accident and left him to die may be a reconstruction of events which he now believes occurred and that the versions given to Mrs Barber, Senior Constables Campbell and Barber and the ambulance officer were incomplete . 86 According to the plaintiff there is basis for the court to find that understandably he did not have a complete memory of events because during the period between the accident, probably at about 5.30 pm and his arrival at the hospital some 7 hours later, he went through an experience which was traumatic and exhausting. It should be recognised that apart from physical pain and inability to move he must have suffered great emotional distress and he faced the realisation that he may not live or as he expressed it "the end had come". I agree that the plaintiff must have suffered emotional distress and physical pain. Ambulance officer Clarke described the plaintiff as being distressed and agitated. Dr Ruff opined that although the plaintiff suffered no head injury he may have been in a state of agitation. However, on the night of the accident the plaintiff was able to give his version of events to Mrs Barber, Senior Constable Barber, Senior Constable Campbell, Ambulance Officer Campkin and paramedic Alderson in a lucid manner. 87 The first defendant submitted that the plaintiff has given a variety of inconsistent versions of how the accident happened, particularly within 24 hours after the accident occurred. From April 1993, the plaintiff's version of the accident crystallised and varies from his earlier versions and is consistent with the sworn evidence he gave in court. The first defendant submitted that it is the evidence of the independent witnesses which should be accepted. 88 According to the first defendant, it is not open to the court to merely accept the plaintiff's oral evidence without some reasonable explanation and rationalisation as to the inconsistency in his own case with the said evidence of the multiple independent witnesses called in the Nominal Defendant's case. See SRA (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] 73 ALJR 306 at 331 per Kirby P and Rayment v James [1999] NSWCA 101 21 April 1999. According to the first defendant, multiple and consistent admissions made immediately after the accident must be given great probative value which can only be displaced by a convincing explanation of how they came to be made, of which, on the evidence there is none. These admissions can undermine the case of an otherwise apparently credible witness - see Voulis v Kozary (1975) 180 CLR 177 at 193 and Khafam Developments Pty Limited v Zeaiter (NSWCA, 3 October 1996 unreported). 89 The second defendant submitted that the plaintiff in saying that a car forced him off the road is either telling the truth or is fabricating this account. According to the second defendant there is no room for a finding that the plaintiff was mistaken as to the presence of a car or alternatively that he has innocently deluded himself into believing that a vehicle forced him off the road. 90 I accept the plaintiff's evidence in relation to the time he left home and the time that the accident occurred. I find that the plaintiff left home at about 4.00 pm and the accident occurred at about 5.30 pm. When the plaintiff left home it was more likely than not that his wife was still at work and he spoke to her on the telephone prior to leaving home. I find that the plaintiff lay in a ditch for approximately one and a half hours before assistance arrived. 91 The plaintiff was found by Mrs Barber at some time between 7.00 pm to 7.15 pm on 2 February 1993 on the eastern side of Quorrobolong Road, Cessnock about 50 metres north of the Barber driveway. The Barber driveway is on the western side of the roadway. He was lying on his back about 2 to 3 metres from the edge of the bitumen. He was lying, north of a forked gum tree but in a ditch. His back was positioned across a lump of concrete. He was lying at a slight angle with his head facing north east (towards Cessnock) and feet aligned closer to the road facing towards Kitchener. 92 I accept the plaintiff's evidence that he was on the return trip, travelling in a generally northerly direction along Quorrobolong Road towards Cessnock at about 25 miles per hour when the accident occurred, although I acknowledge the P4 records that the plaintiff was travelling south. On the balance of probabilities I am satisfied that the plaintiff was travelling north when the accident occurred. 93 Quorrobolong Road is a rural road that runs from Cessnock South to Sandy Creek Road. At the time of the accident it was mostly a narrow road being 5.5 metres wide. It was classified as one of low to medium traffic. In the section of the road where the accident occurred the road was sealed. The state of the road will be covered in more detail later in this judgment. 94 The plaintiff's evidence was that he was riding his pushbike along the road. About 10 seconds before the accident occurred he saw a station wagon approaching him when he looked under his arm. The car brushed up against his right leg and it hit his right hand (although he is not 100% sure about the right hand) and forced him onto the rough edge of the road into the potholes and patches. He was adamant that it was the car that caused his steering to be altered. He gave an account of the handlebars of his bicycle turning anti-clockwise at about 90 degrees to the right. The bicycle veered to the left then went straight across the bitumen onto the right side of the road. The plaintiff had still retained his balance at this point but was unable to steer the bicycle. He leant his left leg on the bicycle to steer between two trees to what he thought was a flat grassy area. In fact, he went down a slight embankment into a grassy ditch and may have been knocked unconscious for a while. When he came to he had his thinking processes and knew where he was at. As he lay in the ditch for one to one and half hours, he said to himself "rotten mongrel just run me of the road and left me there". 95 Both medical and lay witnesses gave evidence that the plaintiff was lucid and conscious at the accident scene and upon admission to hospital. Although the plaintiff admitted he had his thinking processes at the accident scene, he can only recall part of a conversation with Mrs Barber but has no memory of any of the other conversations which occurred at the accident scene. Mrs Barber who was first to arrive at the scene observed the plaintiff to be semi conscious and his speech slow. Mrs Barber gave conflicting evidence as to whether his speech was slurred. In her statement made in 1994 (within 12 months after the accident), she said that his speech was slurred yet in cross examination she stated that it was not slurred. 96 I would have preferred the more contemporaneous record of Mrs Barber that when she arrived at the scene and waited for the ambulance with the plaintiff, the plaintiff was semi conscious and the plaintiff's speech was slow and slurred except that it does not accord with the evidence of the others who attended the accident scene and her evidence in court. It may have been that for some short time prior to 7.30 pm the plaintiff has slow and slurred speech and he may have been lapsing in and out of consciousness. However for the majority of the time from 7.30 pm onwards the plaintiff was conscious as he was able to speak and answer questions in a sensible and lucid manner. He was able to speak to Mrs Barber about his condition. He told Mrs Barber and Senior Constable Barber he was aware that he had been seriously injured. Senior Constable Barber gave evidence that during this time the plaintiff was quite lucid, logical, conscious and that his speech was not slurred. 97 The investigating officer, Senior Constable Campbell's recall of events was not as clear as those of Mr and Mrs Barber but was generally consistent with their evidence. It was Senior Constable Campbell's view that the plaintiff was conscious and that he had no reason to doubt that because the plaintiff was talking "just like you and I". However some three months later Senior Constable Campbell apparently told Mr Redman, an investigator, that at the time of the accident, the plaintiff was vague and in shock. Senior Constable Campbell categorically denied that he told Mr Redman or anyone else that the plaintiff was vague and in shock. (t 559). I prefer Senior Constable Campbell's evidence that the plaintiff was lucid and not vague because the plaintiff was able to answer his questions and spoke "as you and I." 98 The two ambulance officers observed that at 8.08 pm, 8.18 pm and 8.28 pm the plaintiff's level of consciousness was an optimum of 5 and that he was quite alert, able to listen to their instructions and converse in a normal manner. He was able to answer questions concerning his medical condition such as whether he suffered from any allergies. The Glasgow coma score indicated that the plaintiff did not have any significant head injuries. Mr Clarke said that the plaintiff was conscious but was agitated and frightened. It was Dr Ruff's opinion that the plaintiff would have suffered a severe blow to the head and it must be remembered that the foam in the plaintiff's helmet was smashed into pieces on impact. However , according to Dr Ruff, a severe blow to the head does not imply a head injury. He agreed that the plaintiff may have been in a state of extreme agitation. The paramedic Louise Alderson's observations between 9.01 pm to 10.15 pm showed that the plaintiff had a maximum level of consciousness score of 5 and that the plaintiff was alert, lucid and conscious during those times. There was no evidence of a brain injury. The day after the accident when Dr Ruff obtained a history from the plaintiff he was oriented as to place and time. Additionally, he was alert and had the ability of rational expression. 99 Ms Mowatt's evidence was not as reliable as the medical personnel and police officers. She says that from about 6.30 pm she was either kneeling or sitting with her hands cradled around the plaintiff's head. She said that she was there for about one hour and during that time the plaintiff did not speak to her. She formed the view that the plaintiff was not alert or oriented because he was not speaking to her. She conceded that she was hysterical and had lost track of time. 100 The ambulance officers gave evidence that they would not have permitted Mrs Mowatt to be sitting with the plaintiff in the position described by her for the prolonged one hour period. Ambulance officer Campkin has no recollection of the plaintiff's wife being there at all. Mrs Mowatt recalled a female ambulance officer being present. There was only one, namely the paramedic, Ms Alderson who arrived at about 8.22 pm. It appears that Ms Mowatt is mistaken as to the time that she arrived at the accident scene. She did not arrive until some time shortly before 8.22 pm at the earliest. She may have been in close physical proximity to the plaintiff for a short period to let him know that she was there and reassure him. It would be likely that she would have got in the way of the ambulance officers carrying out their observations if she had remained in close proximity to the plaintiff. I do not think that it was likely that the plaintiff remained sitting in the position she described for an hour but it is possible the plaintiff's father observed her in the short time that she was so doing. 101 I prefer the views of the medical personnel that the plaintiff was conscious, lucid and rational and gave an accurate account of how the accident occurred. The evidence of the family members was not as reliable as the medical personnel and the police officers so far as time is concerned. The police, ambulance and paramedics time sequence is correct. 102 Before 8.00 pm Mrs Barber asked him (the plaintiff) if he had been hit by a car and he replied "No". Shortly after 8.00 pm Senior Constable Barber asked the plaintiff "Was there a vehicle involved?" The plaintiff replied "No". Senior Constable Barber then checked and said "Are you certain about that?" and the plaintiff replied "No". There were two separate denials of the involvement of a motor vehicle. Also between 8.00 and 9.00 pm Senior Constable Campbell asked the plaintiff if another vehicle was involved and the plaintiff replied "No" Additionally, according to Senior Constable Campbell, the plaintiff said that he was going south. Senior Constable Campbell made a contemporaneous entry in the occurrence pad and P4 form. At about 8.08 pm the plaintiff gave Ambulance Officer Clarke an account of the accident which did not make any mention of a motor vehicle which was contemporaneously recorded in his notes. Likewise at about 8.22 pm the plaintiff gave an account of the accident to paramedic Alderson which was contemporaneously recorded. There is no mention of a motor vehicle. The next day Dr Ruff obtained from the plaintiff an account of the accident. Once again the plaintiff made no mention of the existence of a motor vehicle. There is no mention in the admission records of RNSH of the involvement of a motor vehicle. 103 It was not until one week after the accident, at the earliest that the plaintiff mentioned the existence of a motor vehicle and this conversation took place with his wife in hospital. Ms Mowatt's evidence was that the plaintiff was pretty much off his face for the first two weeks yet the hospital records do not disclose that the plaintiff was given pethidine after the first 3 days in hospital. According to her, it was only 2 or 3 weeks after the accident that he mentioned he had been hit by what could have been a station wagon that was brownish in colour. She did not mention it to anyone other than the plaintiff's father. The plaintiff's father denies that she told him this (t 316.35). 104 However, as previously stated a portion of Ms Mowatt's evidence is corroborated by that of the plaintiff's father, Peter Suvaal. When he arrived at the accident scene his recollection is that he saw Mrs Mowatt sitting at the plaintiff's head. He did not see the police officers but saw the ambulance officers at the accident scene. This indicates that at the earliest, he arrived at the scene shortly after 8.00 pm. 105 Mr Peter Suvaal also gave some inconsistent evidence. His evidence is that about a week after the accident the plaintiff told him that something went past and he (the plaintiff) could not recall much after that. Initially Mr Suvaal said that he spoke to a journalist after his conversation with the plaintiff, then he changed his evidence and said that the conversation occurred before the conversation with the plaintiff. His explanation for the journalist Mr Washington reporting that the plaintiff was travelling towards Kitchener was that the journalist had misunderstood him. He confirmed that his wife told him that the plaintiff had told her that "something went past" or "something hit me". 106 The plaintiff's mother's evidence was vague. According to her, it was at the 3 week mark, in response to her comment to the plaintiff that it was a terrible thing that happened to him when he replied he wouldn't be in hospital if it wasn't for the damn car running him off the road. He never mentioned in his account of the accident to her that the steering mechanism on the bike collapsed and she did not ask any further questions. It is implausible that she did not ask any further questions but this does not mean that the conversation did not occur. She did report this conversation to her husband. Her husband confirmed that the conversation occurred but he says that she reported that something went past or something may have hit him. His recollection of the conversation is less specific in that there is no reference to a motor vehicle. 107 In hospital the version given to the social worker was that the plaintiff was cycling/training. He moved to the side of the road so that he would not be hit by a car. He hit potholes and the handlebars collapsed. It must be remembered that she did not know where she obtained this information nor had any independent recollection of her conversations with the plaintiff. The physiotherapist reported in her discharge summary that the plaintiff was involved in a cycling accident when he was allegedly forced off the road by a car forcing him down an embankment and over the handlebars. There is no mention of the handlebars collapsing in this account. Both these witnesses do not know the source of the histories they obtained nor do they have any independent recollections of their conversations with the plaintiff. For these reasons, I do not place much weight on these accounts of the accident. 108 Some weeks after the accident the plaintiff told his friend Paul Thompson, that a car had forced him off the road, then he hit a rough edge of the road, his bike failed and Ire fell off. A few days prior to 1 April 1993 which is about two months after the accident, the plaintiff told a journalist Mr Washington that he was training while cycling and was forced off the road by a car. Then after hitting potholes, part of the bicycle assembly snapped and the import of the article was that the cause of the accident was a motor vehicle. 109 By June 1993, some 4 months after the accident the plaintiff gave a more detailed account of how the accident occurred. He gave a history of seeing a station wagon approaching in the same direction as he was travelling from about 50 metres behind. He remembered that a car hit him and he flew off the bitumen. He said that he hit rough potholes and the head stem of the frame snapped inside the bike. In all other respects the version of events that the plaintiff gave to Sergeant de Belin was the same as the plaintiff gave in evidence. 110 In the accident report form completed by the plaintiff on 15 September 1993 his version of the accident had crystallised. He was peddling his bicycle along the southern edge of the roadway when his right side in the region of his right thigh and right arm was brushed against causing him to be forced into a rough section of the roadway at the far edge of the bitumen. It was after striking the rough section of the roadway that the handlebar assembly broke. This explanation infers that it was a motor vehicle which brushed the plaintiff's right thigh and right arm but does not specifically refer to a motor vehicle. In answer to the next question on the form, namely who was responsible for causing the accident, the answer given was the driver who forced him into the rough road edge. A diagram in the report form shows the involvement of a motor vehicle. No details were given of the motor vehicle other than it was a station wagon. As previously stated, the report form cites the time of the accident at 7.00 pm not 5.30 pm However, this inconsistency can be reconciled because I take it that the reference to 7.00 pm is a reference to the time when the plaintiff was found. 111 In relation to the physical evidence Mr Robinson the metallurgic engineer, was of opinion that there was no positive evidence that the bicycle had been struck and damaged by a motor vehicle. The plaintiff told Sergeant de Belin that the vehicle hit the handlebars of the bicycle. There was no broken glass or anything else to indicate the presence of a motor vehicle. The hospital admission physical findings sheet (Ex P) records show that there was no abrasions observed on the plaintiff's right arm, hand or thigh. There was a superficial abrasion noted on the inside of his right knee. Nevertheless the plaintiff gave evidence that he had a lump on his right hand for some time after the accident. It would depend on how hard the plaintiff was "brushed or hit" as to whether physical injuries would have resulted. 112 I am satisfied that the plaintiff although in shock and emotional distress at the accident scene was able to and did give an accurate version of how the accident occurred. However, it is my view that the preponderance of credible evidence establishes on the balance of probabilities that it was not the presence of a motor vehicle which caused the plaintiff to veer and change the direction of his steering of the bicycle. Nor did the motor vehicle hit or brush against his right thigh or right hand. If the plaintiff had been lying for 1 to 1½ hours in a ditch thinking that the rotten mongrel who ran him off the road left him there to die, it is implausible that he did not mention it to any of the people who attended the scene, even when directly asked about the presence of a motor vehicle. Even if he has reconstructed his thought of the mongrel leaving him to die at the accident scene, the plaintiff denied that he had been hit by a motor vehicle. He also denied that a motor vehicle had been involved. He made statements to this effect to Mrs Barber, Senior Constable Barber and Senior Constable Campbell. Nor did he mention any involvement of a car in his account of the accident to the ambulance officers, the paramedic and to Dr Ruff. 113 It was one week after the accident that the plaintiff is reported to have said that he was hit by a brownish coloured station wagon and that something went past but he could not recall much after that. Yet at the accident scene he was able to give an account of the handlebars collapsing and referred to potholes. It was about one week after the accident that the plaintiff in his version of the accident gave the emergence of a motor vehicle as the cause of the accident. It was from that point on that the plaintiff's version of the accident included the reference to a motor vehicle. The plaintiff's case against the first defendant is dismissed. The second cross claim against the first defendant is dismissed. 114 If I am wrong contrary to my findings, and an unidentified vehicle was involved in the accident, I turn to the issue of whether the plaintiff has fulfilled the requirements of due inquiry and search. Due inquiry and search 115 The plaintiff had been involved in two prior motor accidents. He was not aware of the existence of the Nominal Defendant. He thought that if he did not find the person who caused the accident there would be no hope of going to court. The driver involved in the plaintiff's second motor vehicle accident did not stop but someone obtained his number and the police found him (t 30.15). For five months after the subject accident he did not inquire from the police whether they were investigating the accident for a number of reasons, namely he wanted to get home, he did not like lawyers, he did not care and thought there was no hope (t 82.5-83.5). 116 Mr Barry Hocking a private inquiry agent gave evidence. In May 1993 he took 9 photographs of the accident scene. He spoke to Mrs Barber and Senior Constable Barber and the plaintiff's father. He did not speak to Senior Constable Campbell because at that stage he did not know that Senior Constable Campbell had investigated the accident and in any event he would have needed to get permission to speak to Constable Campbell. He says that when he went to the accident scene he could not see any other house other than the Barbers' from the road. He gave evidence that it would have been almost impossible to locate the vehicle the day after the accident. He described the road as being narrow with rough edges on both sides and that it was typical of New South Wales rural roads. He agreed that had the police been given a description of the vehicle it could have been put on the radio network and there may have been success finding the vehicle depending on how much detail of it was provided. 117 Advertisements were placed in the Daily Telegraph Mirror on 4 February 1994 and the Advertiser, a paper circulating in the Cessnock area on 9 February 1994 and 28 September 1994 (Ex W). They described how the accident occurred and referring to an unidentified motor vehicle that may have been a station wagon. The advertisements asked that any person who witnessed the accident or having any information as to the identity of the unidentified vehicle to contact the plaintiff's solicitors. It is agreed that there was no response to those advertisements. 118 The plaintiff must prove that all reasonable means practicable were used to try and establish the identity of the vehicle - see Blandford v Fox (1944) 45 SR (NSW) 241 at 245 and Lawrence v The Nominal Defendant (1984) 1 MVR 388. Where inquiries provide leads they should be followed up - see Slinn v The Nominal Defendant (1964) 112 CLR at 334. It is necessary for a plaintiff suing the Nominal Defendant to adduce evidence upon which it can be found that the identity of the vehicle which caused the injury cannot after due inquiry and search be established. This does not mean that the inquiry and search must have been made by or on behalf of the plaintiff. Nor need there be in every case some activity, separate and independent of an inquiry, which can be designated as a search. The word "due" accommodates to the circumstances of the case the nature and extent of the inquiry and search which is required. In Harrison v The Nominal Defendant (1975) 50 ALJR 330 it was held that it is unnecessary for a plaintiff to take steps that are unlikely to yield results merely for the purpose of form or ritual of apparent compliance with the section. 119 In Nicholl v NSW Insurance Ministerial Corp, (1995) 21 MVR 499 Simpson J says that the combined effect of the decisions of Slinn and Cavanagh v The Nominal Defendant (1950) 100 CLR 375 is that a plaintiff may rely on inquiries made by others but is not bound by inadequacies in those inquiries if not in a position to make or have made appropriate inquiries himself or herself. 120 Senior Constable Barber and Senior Constable Campbell gave evidence that if they had been told by the plaintiff at the accident scene that he had been hit by a station wagon, they would have treated the accident as a "fail to stop". He would have made further inquiries as to possible witnesses and registration identities and referred the investigation to the Accident Investigation squad. The investigation would have been treated a lot more seriously than it was (t 575.5). 121 Mr James Redman a private investigator for over 40 years who has investigated in excess of 1,000 accidents, requested Barry Hocking to carry out investigations in the Cessnock area. He spoke to Senior Constable Campbell on about 27 May 1993 (I have referred to this conversation earlier in this judgment). After discussing whether any further inquiries could be carried out, they agreed there was nothing further that could be done (t 299). It was Mr Redman's view that as there was no information as to the identity of the car, such as colour, registration breakdown be it a State, a letter or a number of the registration plate, there was no hope at all of locating the unidentified vehicle. 122 It is my view that if the station wagon did in fact cause the accident the plaintiff was never aware of its colour, make, number of occupants nor its registration number. He was very seriously injured and was not in a position to cause inquiries to be made to identify the station wagon for a number of months. In any event if the plaintiff had told the police of the existence of a station wagon when he was found 1½ hours after the accident occurred and that had been broadcasted, there was little if any hope of the vehicle being located. Further, until the plaintiff received legal advice, he was unaware that he could have taken legal proceedings if he could not identify the vehicle by its registration number. 123 About one year after the accident the plaintiff caused an advertisement to be placed in the Cessnock Advertiser and 18 months after the accident, an advertisement was placed in the Daily Telegraph Mirror. There was no response to either advertisement. A private investigator made all the inquiries he could some three months after the accident. These inquiries were fruitless and there were no other avenues that could be pursued. It is my view that the plaintiff has made due inquiry and search. After making due inquiry and search the alleged driver of the alleged motor vehicle cannot be established. I say "alleged" because on my findings there was no unidentified vehicle that caused the accident. The case against the second defendant 124 The plaintiff's action against the second defendant is in negligence. It is not disputed that the Council, as a road authority owes a duty of care to users of Quorrobolong Road. Nor is it disputed that the Council would have foreseen that cyclists would use the road. The plaintiff alleges that the second defendant firstly, negligently designed and constructed the road; and secondly, the acts of intervention by the Council constituted misfeasance. The alleged particulars and negligence in the construction and design of the road are that there was no drainage; there was no or insufficient clearance of the road adjacent to the sealed surface; there were no proper shoulders of the road and the road was too narrow. 125 The plaintiff's main allegation is that the second defendant was guilty of misfeasance because when the Council intervened to reseal the road and carried on repairs to the edges and potholes on the road surface, they should have firstly, ensured that there was adequate drainage; secondly, cleared away impediments to the drain or drains (if there were any); thirdly, cut down the trees on the eastern side of the road; fourthly, levelled the shoulders on each side; fifthly, resealed that portion of the road. It is also alleged that the second defendant performed the works of filling potholes and edge drops, patching and resealing without proper drainage works and failed to drain when intervening with works of patching, filling potholes and edges and resealing. According to the plaintiff, the acts of misfeasance resulted in the edges of the road being in a hazardous condition at the time of the accident. The plaintiff has also alleged nuisance but this will follow the fate of the claim in negligence. The claim concerning the road signs was not pursued. 126 The second defendant submitted that the plaintiff's allegations of negligent construction and design must fail because firstly, there is no evidence as to when and by whom the relevant portion of the road was designed and constructed. According to the second defendant such design and construction took place before the Council came into being on 1 January 1957 and very probably prior to 1917. The second defendant submitted secondly, there is no evidence which permits a finding that the sealing in 1935 was other than to an already constructed road; and thirdly, there is no evidence as to the standards of drainage required at the time the road was designed and constructed. 127 In relation to negligent design and construction of the road, three issues arise. Firstly, whether the plaintiff has proved on the balance of probabilities that it was this Council who had designed and constructed the relevant portion of the road; secondly, whether the plaintiff has proved that the design and construction of the relevant part of the road was negligent when measured against the standards of design and construction at the time when the road was built; and thirdly, whether having regard to the state of the plaintiff's bicycle, the plaintiff would have encountered roughness and bumps sufficient to initiate the final over load fracture even if there had been perfectly adequate drainage contrary to the plaintiff's assertions. Did the council design and construct the relevant portion of the road ? 128 It is the normal practice of Council to keep the historical files in relation to road and plans of any reconstruction done to that road. Despite searches, there are no records held by the second defendant relating to the original construction of Quorrobolong Road nor of the reconstructions, Nor are there any records relating to Kearsley Shire Council. (Ex D2/35). Quorrobolong Road had been built due to the coal mine at Aberdare and logging at the turn of the 19th century. It was the only link road heading south out of Cessnock to Kitchener. A coal mine at Kitchener came into existence during the 1910's. Mr Pigram the council engineer responsible for Quorrobolong Road at the time of the accident gave evidence. He said that the map dated 1879 (Ex AL) meant that the road had come into existence as a paper road. The map indicated that the road was proposed to be opened as a parish road. There is also a notation that the road to be opened is one chain wide and shown in red. At some time after that it was used by probably animal drawn vehicles possibly to cart timber or coal. Mr Pigram does not know when it was initially made, built or constructed, nor could he tell from the records when it was first sealed. A passage from the book "The Railways of the South Maitland Coalfields" (Ex D2/15) recorded that the work commenced on the Aberdare Colliery in 1914 and Kitchener was established in 1917. 129 In an article in the Cessnock Eagle dated 20 December 1935 (Ex D2/17), the shire engineer Mr Shine of Kearsley Shire Council, reported that in the Kitchener district the preparation of a length from Cessnock towards Kitchener for tar surfacing had been completed and the primary coat of tar had been applied. It foreshadowed that the sealing coat would be completed the following week and that the power grader had reconditioned lengths from Cessnock to Kitchener, Kitchener to Abernathy and Kearsley to Neath. 130 The second defendant submitted that in 1935 the Kearsley Council did not exist. A Proclamation of 14 September 1956 recites that the Shire of Kearsley was created by a Proclamation in 1944. However, Kearsley Shire Council existed in 1935 because the report in the Cessnock Eagle refers to Kearsley Shire Council. I infer that Kearsley Shire Council existed in 1935 when the road was surfaced with tar. 131 The construction of a road means the formation of the sub-grade and pavement and drainage associated with it. (Milner t 462). The seal on the top of the road is the completion of the road construction. (t 509). From this evidence, I am satisfied on the balance of probabilities that the road was designed and constructed between 1910 and 1935 probably by Kearsley Shire Council. It was surfaced with tar, ie., the construction was completed by the end of 1935 by the Kearsley Shire Council. 132 According to Mr Pigram, in 1954 there was some road widening on the bend to the north of the Barbers' property and beyond. It was likely that there was going to be some major works done on that road. It is likely that some reconstruction of the road took place some time after March 1954 although there are no plans in existence. It was assumed that the road was sealed in 1935 and then partly redone in 1954. That seal would last for about 10 to 15 years which would take it up to the 1970's. Mr Barber gave evidence that the road was not resealed from 1978 when he commenced living there until 1991. In roughly 1991 the road was resealed to just north of his house but did not extend to the curve. The council worker dumped a heap of tar down and put rocks over it - it was a very poor job. The relevant portion of the road was resurfaced in 1995 (after the accident). 133 In the second defendant's defence to the plaintiff's statement of claim and defence to the first defendant's cross-claim, it pleads that Cessnock City Council came into existence on 1 January 1957 by virtue of proclamation recorded in Gazette No 100 dated 14 September 1956, prior to that road becoming vested in the cross-defendant. The Council submitted that it is not liable for any negligence by a predecessor council in the absence of an express statutory or other provision imposing such a liability upon it and no such provision exists here. 134 Pursuant to s 16(e) of the Local Government Act 1919 (LGA) and by virtue of the Proclamation of 14 September 1956, the Municipality of Cessnock and the Shire of Kearsley were united and constituted the united area of the Municipality of Greater Cessnock. 135 By virtue of s 20B(6)(a) LGA and clause 7 of the Proclamation (reproduced below) the road was vested and belonged to the Municipality of the Greater Cessnock as from 1 January 1957. Section 20B(6)(a) LGA stated: "(a) All real and personal property and all right and interest therein and all management and control of any land or thing which, immediately before the union of the areas, was vested in or belonged to the councils of the areas united, shall vest in and belong to the council of the united area." 136 The enabling power under the LGA is contained in Part 3 of the Act namely section 2. In particular sections 21(l), (m) and (r) read as follows: "21(1)For the purpose of this Part the Governor may (notwithstanding anything else in this Act, provided) by proclamation or proclamations - (l) give effect to any arrangement made as elsewhere provided by agreement between councils and creditors, or by the Minister, or by a district court judge, with respect to the apportionment of assets, rights, and liabilities. (m) transfer, or provide for the transfer of, any unascertained liabilities of a council (including liabilities for damages only) which are not included in any arrangement referred to in the last preceding paragraph to another council: subject to such conditions or limitations as he may think just; … (r) provide for any matter or thing (whether herein stated or not) which the Governor may deem necessary or expedient in the circumstances." 137 Were the alleged acts of misfeasance of the Municipality of Cessnock (which were "unascertained" or had not arisen as at 1 January 1957) imposed upon the Council by the Proclamation? 138 Clauses 4 and 7 of the Proclamation dated 14 September 1956 pursuant to the LGA state: "(4) Order that all rights and liabilities acquired and incurred and all contracts and undertakings entered into, all securities lawfully given and all applications, actions, suits and proceedings begun prior to 1 January 1957, either by or on behalf of or against the Council of the Municipality of Cessnock or the Council of the Shire of Kearsley, as at present constituted, it shall on and after that date, be vested and attached and it may be enforced, realised and carried on by or on behalf of or against the Council of the Municipality of Greater Cessnock, as hereby constituted, and shall not abate or be discounted or be prejudicially effected by this union of areas. … (7) Order that all the assets rights and liabilities of the Council of the Municipality of Cessnock and of the Council of the Shire of Kearsley, as at present constituted, shall be assets, rights, and liabilities of the Council of the Municipality of Greater Cessnock, as hereby constituted, to the same extent only as the same are assets, rights and liabilities respectively of the Council of the Municipality of Cessnock or the Council of the Shire of Kearsley, as presently constituted, as the case may be." 139 The plaintiff and the first defendant submitted that clause 7 (if not clause 4 as well of the proclamation) in ordering all liabilities of the former councils be liabilities of the united council, (together with assets and rights) includes the potential rights and liabilities existing in the former councils, not just those that had accrued and were actionable as at the time of transfer, and referred to Walters v Babergh DC (1983) 82 LGR (QBD) 235 and Vromilow & Edwards Pty Ltd v Inland Revenue Commissioner (1969) 1 WLR 1180 at 1189. 140 In the matter of Walters, the interpretation of the words "rights and liabilities" in respect of the reorganisation of councils in which another council took over the responsibilities under the Local Government Act 1972 of another council, which included the transfer of rights and liabilities was considered. It was held that liabilities properly interpreted meant not only primary or incurred liabilities but potential liabilities, the purpose of the legislation, as it is here, is for the continuation of the functions and obligations of council under a new structure. 141 According to the plaintiff and first defendant there is no obvious intention that in merging two councils into one any potential liability incurred on behalf of both councils prior to the union into a new statutory council in carrying out normal council activities was to be abolished for the purposes of defeating any potential properly entitled claims that may be incurred to members of the public. 142 On the other hand the second defendant submitted that s 20B (added by Act No 9 of 1934 s 28(a)) provides: (1) Where a new area is constituted by the union of two or more areas in accordance with paragraph (e) of section 16 the provisions of this section shall have effect; (2) The Council of the united areas shall be and remain liable for all outstanding loans to and all liabilities and obligations of the respective councils of the areas united and shall be bound by and shall observe and perform all conditions relating to the said loans and to the maintenance and/or creation of reserves for the repayment thereof." 143 The second defendant submitted firstly, that the last three lines of s 20B(2), together with terms of s 20B(6) (added by Act No 53 of 1952, s 3(2)(a)), provide a strong basis for reading the phrase "liabilities and obligations" ejusdem generis with loans so that the phrase does not include liabilities in tort; and secondly, the natural meaning of the words "shall be and remain liable for" indicate that the word "liabilities" in s 20B(2) refers to ascertained liabilities in existence at the time the "new area is constituted by the union of two or more areas" in accordance with s16(e). 144 According to the second defendant none of clause (4), clause (7) and ss 20B(2) was designed to transfer to the Council a liability which had not come into existence at the date when the constituent area ceased to exist. Accordingly, the plaintiff's case against this Council based on the negligent design and construction of the relevant portion of Quorrobolong Road must fail, for the simple reason that the design and construction of that road preceded the road coming into existence. The second defendant sought to distinguish the recent High Court decision of Crimmins v Stevedoring Industry Finance Committee [1999] 167 ALR 1. It is my view the reasoning in Crimmins is applicable to the circumstances of the case before me. 145 An issue in Crimmins was the transmission of legal liability from one Crimmins, McHugh J at statutory authority to the Commonwealth. In Crimmins para [144] refers to a passage from the judgment of Woolf J in Walters as supporting his construction of s 14(b) of the Termination Act. An issue in Walters was the interpretation of Article 16(3)(a) and Part II of the Melford Rural District Council were transferred to Babergh District Council. The passages quoted by McHugh J were where Lord Woolf stated: "The whole tenor of the order is designed to ensure that the reorganisation would not effect events which would otherwise have occurred further than is absolutely necessary because of that reorganisation. That the public should be able to look to the new authority precisely in respect of those matters which it could look to the old authority; that the public's position should be no better or no worse. If the draftsman has not used words which are appropriate to cover potential liabilities it can only be because he was so crassly incompetent as not to appreciate that for actions in tort it is not sufficient to have a breach of duty; you must also have damage." 146 Lord Woolf then said: "I regard the word "liabilities" as capable of having amplitude of meaning. In the context of this case I consider that it is wide enough to apply to contingent or potential liabilities. It appears to me that I have fair choice ... . Having that choice I have no hesitation in choosing an interpretation which makes, in my view, sense of this part of the order, rather than leaving a large gap between obligations and causes of action which have accrued." 147 McHugh J in Crimmins stated: "In my opinion, his Lordship's comments are entirely applicable to this case. The respondent disagrees with this, contending that the words "liabilities vested in or attaching to an authority'' in the legislation considered in Walters v Babergh District Council distinguish that case from this case. In my opinion those words do not make Walters distinguishable. In that case, as in this case, the court has a choice between a restricted meaning of "liabilities"..." 148 In Crimmins Gleeson CJ stated that depending on the context, "liability" can include a contingent or potential liability and referred to Walters. Callinan J's view was that liability is capable of having amplitude of meaning and defines liability in the same manner as Gleeson CJ. Kirby J cited the approach in Walters with approval [para 198]. Gaudron J stated that "liability" could refer to a liability or obligation which existed in the past but was not then enforceable. Gummow J agreed with Hayne J. Hayne J stated that s 14 of the Termination Act made the respondent liable for damages that the authority owed to the deceased worker [para 257]. 149 The second defendant also relied upon Florence v Marrickville Municipal Council (1959) 60 SR 562 to support its case whereas the plaintiff and first defendant sought to distinguish it. In Florence (per Owen and Herron JJ) it was found on proper interpretation of the relevant statutory provision relating to the merger of the two councils that there was no intent to transfer to the council of a united area a liability which had not come into existence at the date when the constituent area ceased to exist. In that matter, however, the provisions considered were ss 11(1) and (2) of the Local Government (Areas) Act which did not transfer "liabilities" of the respective councils. What was transferred were matters specified therein which included certain obligations but only to the time which "immediately before the appointed day are vested in or belong to or imposed upon the council of a constituent area" 150 As Gleeson CJ stated in Crimmins, the interpretation of "liability" will depend upon the context in which it is used. The wording of s 11 LGA and ss 20B and 21 LGA differ. Thus I would distinguish Florence on this basis. In 20B of the LGA and clause 7 of the Proclamation the wording in s 11 does not appear. In Florence liabilities was read to be those obligations which immediately before the appointed day are vested or belong to or imposed upon the Council of a constituent area. The second defendant further submitted that if the Governor in his Proclamation chooses not to include "unascertained liabilities" in his Proclamation, you cannot simply construe the word "liabilities" in the Proclamation to extend to "unascertained" liabilities regardless. The liability of Council to the plaintiff, was at the time of the transfer "unascertained". The Proclamation does not specifically pick up the word "unascertained" before the word liabilities appears. 151 Notwithstanding, for the same reasoning as in Walters the public should be able to look to the Cessnock City Council for the same matters to which it could look to the old authority Kearsley Shire Council. The word "liability" appearing in ss 20B and 21 of the LGA and clause 7 of the Proclamation should be interpreted the way it was in Crimmins. There is no obvious intention that any potential liability incurred by both Councils prior to being merged into one council was to be abolished for the purpose of defeating any potential claims that may have been incurred to members of the public. Liability includes a contingent or potential liability. Thus it is my view that Cessnock City Council is liable for any negligent design or construction of Quorrobolong Road by its predecessor, Kearsley Shire Council. Whether the plaintiff has proved that the design and construction of the relevant part of the road was negligent when measured against the standards of design and construction at the time when the road was built 152 The plaintiff alleges that when the second defendant designed and constructed the road it firstly, failed to design and construct the bitumen surface so as to prevent the development of fragmented and broken pieces on the edge of the road; secondly, designed and constructed the bitumen surface in such a way that it was susceptible to the development of fragmented and broken pieces on the edges; and thirdly, failed to ensure that the said edges of the road were completely and evenly covered by a sealed bitumen surface. The second defendant submitted that there is only one aspect of the design of the road which is relevant namely inadequate drainage because it is said to be a major determinant in the deterioration of the seal and the break-up in the edges of the seal. 153 The other design defects alleged to have caused or materially contributed to the accident were not proved on the balance of probabilities. They were firstly, horizontal alignment and crossfall/superelevation; secondly, vertical alignment; thirdly, clear zones, proximity of trees; fourthly, load limits; and fifthly absence of road signs warning of broken edges. Horizontal alignment and crossfall/superelevation relates to the curve and not to the accident site. The accident did not occur near the curve. Crossfall is not a contributor to the accident. Vertical alignment, Mr Milner concluded, was unlikely to have contributed to the accident (Ex 1D/5). Road signs are intended to advise an unfamiliar user of the road. The plaintiff was a regular user with this road and familiar with it. (t 491-492). 154 There is no evidence that the proximity of trees and the lack of clear zones contributed in any way to the accident. The relevance of the proximity and height of the trees is that they are indicative of poor drainage. (see Ex AF p 3.8). The plaintiff does not allege that he hit a tree or that trees caused his accident. Due to my earlier finding that there was no motor vehicle involved in the accident load limits are not relevant. (Ex 1D/5 p 9). 155 The question therefore is whether the potholes and broken edges which caused the final fracture of the head stem tube and the plaintiff to lose control appear as a result of mere wear and tear or were the consequence of negligent repair of the road. Secondly, is there evidence of negligence in the construction of the road on the part of the council so as to cause the potholing and breaking up of the road? 156 The negligent design and construction must be judged according to the standards of the time and the circumstances then prevailing. (Buckle v Bayswater Road Board (1936) 57 CLR 259 per Dixon J at 284; 285). In Lake Macquarie City Council v Bottomley [1999] NSWCA 28, 3 March 1999, Powell JA (with whom Handley and Giles JJA agreed) at para 38 stated: "Even if the evidence tendered to the Court establishes that the relevant works were carried out by the road authority, the road authority is not to be held liable unless it carried out the works without due care and skill for the safety of those who might come to use the road, it following that, if the works were carried out in accordance with the standards of the time and the circumstances then prevailing, the road authority is not to be held liable, either, by reason of carrying out of the works, or, by reason of the fact that, as the result of the deterioration of the works and the road authority's failure to maintain or repair them, the works have become unsafe (see, for example, Buckle v Bayswater Road Board supra at 284-285 per Dixon J (as he then was); Hill v Commissioner of Main Road (1989) ATR 80-260 per Samuels JA at 68,784)." 157 The second defendant submitted that the plaintiff should fail against the Council because it produced no evidence in relation to the standard prevailing at the time the relevant section of Quorrobolong Road was designed and constructed. Before I deal with this topic, it is necessary to determine whether the potholes and rough section of the road caused the plaintiff's accident. Did the potholes and rough section of the road cause the plaintiff's accident ? 158 As previously stated, the plaintiffs evidence was that he was riding his pushbike along the road. About 10 seconds before the accident occurred he saw a station wagon approaching him when he looked under his arm. The car brushed up against his right leg and it hit his right hand (although he is not 100% sure about the right hand) and forced him onto the rough edge of the road into the potholes and patches. He gave an account of the handlebars of his bicycle turning anti-clockwise to about 90 degrees to the right. The bicycle veered to the left then went straight across the bitumen onto the right side of the road. The plaintiff had still retained his balance at this point but was unable to steer the bicycle. He leant his left leg on the bicycle to steer between two trees to what he thought was a flat grassy area. In fact, he went down a slight embankment into a grassy ditch and may have been knocked unconscious for a while. 159 The plaintiff did not mention the potholes and handlebars of the bicycle collapsing to Mrs Barber who was first on the scene. However as previously stated I accept that when Mrs Barber found the plaintiff his speech was slow and slurred and he may been lapsing in and out of consciousness. The plaintiff only responded to questions asked by Mrs Barber. I accept this as plausible explanation as to why there was no mention of potholes and the handlebars of the bicycle collapsing. 160 The plaintiff told Constable Barber that he hit a couple of potholes, the handlebars of the bike came away and he hit a tree. The plaintiff told Senior Constable Campbell that the bike just collapsed underneath him and reported that from his inspection the handlebar of pushbike may have snapped. However, Senior Constable Campbell did not record anything about potholes nor does he recall the plaintiff mentioning them. 161 The ambulance officer's report states that the plaintiff told him that he was riding a push bike when the handle bars collapsed causing him to be propelled forward into a gully. Mr Clark did not record anything about contact with potholes or the rough section of the road. Ms Alderson, paramedic recorded a history she obtained from the plaintiff and noted in the treatment report that the plaintiff was a rider of a push bike whose steering failed and crashed down a one metre embankment landing heavily on a boulder on his neck head area. There was no mention of contact with potholes or the rough section of the road. In the history the plaintiff gave to Dr Ruff the day after the accident, he said he had had a bike accident, that the handlebars failed and he had gone head first over the bike striking his head on the ground. Dr Ruff did not record anything about potholes or the rough section of the road. From the time the plaintiff was found at the accident scene until the following morning, the only person the plaintiff told about the potholes was Senior Constable Barber. 162 One week after the accident when the plaintiff had the conversation with his father that "something went past" and he could not recall much after that, he did not mention the existence of potholes or the rough edge of the road nor of the handlebars on the bicycle collapsing as being causative of his accident. After 2 to 3 weeks when the plaintiff mentioned to his wife that he had been hit by a brownie coloured station wagon he made no mention of the handlebars collapsing or of the potholes or the rough section of the road. Mrs Suvaal was never told by the plaintiff that his bicycle struck potholes and/or the rough edge of the road. 163 Miss Hayter in her own notes records that the plaintiff was cycling/training. He moved to the side of the road so he would not be hit by a car. She has recorded that the plaintiff hit potholes, the handlebars collapsed and that he was thrown down an embankment. Ms Hinton's evidence was fairly vague. She mentions the plaintiff having gone off the road and falling into a ditch. There is no specific reference to potholes or rough edges of the road. I would not place much weight on her evidence. Her role was to be present during the plaintiff's interviews with his solicitor and Sergeant de Belin. There is no record by Ms Quirk in the physiotherapy discharge summary that the handlebars collapsed nor is there any mention of potholes or the rough section of the road. 164 By June 1993 (four months after the accident) in the interview with Sergeant de Belin the plaintiff recalled that all he could remember was the car hit him and he flew off the bitumen. The plaintiff referred to then hitting rough potholes and that it was then that the head stem of the frame snapped inside the bike. The plaintiff told Paul Thompson that he had "come off a car". The car had forced him off the road, he hit a rough edge of the road, his bike failed and he fell off (t 269.25-35). In the newspaper article written by Mr Washington, he reported the plaintiff as saying "A car forced him to one side of the road about one kilometre from his home, and after hitting potholes, part of his bicycle handlebar assembly snapped." In the plaintiff claim form dated 15 September 1993 (Ex L) he recorded that his right side was brushed against causing him to be forced into a rough section of the roadway at the far edge of the bitumen. After striking the rough section of the roadway, part of the handlebar assembly broke and the bicycle went out of control crashing into an area on the northern side of the roadway. 165 Unlike the plaintiff's explanation about the presence of a motor vehicle which emerged a week after the accident, the plaintiff mentioned the potholes to Constable Barber at the accident scene. The plaintiff told his wife, Ms Hayter and Sergeant de Belin of the existence of potholes. The plaintiff told his friend Paul Thompson about the rough edge of the road. There was also mention of the existence of a rough section of the roadway. There was no mention of patches on the road. 166 The plaintiff's first version of the potholes when giving evidence in chief was that he bounced into a couple of potholes and then went onto the rough edge of the road. In cross examination, the plaintiff remembered hitting a couple of potholes and there were a couple that were empty and a couple that were filled and then the rough edges of the road where the tar had sunk (t 136.40) and then he hit patches. The part about whether the potholes were filled or not, in my view, is conjecture. In re-examination he explained that some of the potholes had tar in them that had sunk in, some had tar in them which was smooth with the existing road and some did not have any tar in them at all (t 132.35). It is my view that the plaintiff would not have been able to observe the potholes in this detail given at the time he had lost control of his steering and his mind would have been focussed on regaining control of the bicycle. I accept that he may have felt bumps. It is more likely on the balance of probabilities, the plaintiff bounced into a couple of potholes and/or patches that had been filled with premix, then went onto the rough edge of the road and I find accordingly It is sometimes difficult to distinguish between a filled pothole and a patch. 167 It is my view, and contrary to the second defendant's submissions, that the preponderance of credible evidence establishes on the balance of probabilities that the plaintiff hit potholes which caused a change in the direction of the steering of the plaintiff's bicycle. I also accept that after the plaintiff hit the potholes he went onto the rough edge of the road. In the accounts given by the plaintiff of how the accident occurred he consistently mentioned the loss of control of his bicycle, the handlebars collapsing and the steering giving way. I accept the plaintiff's account that he caused his bicycle to go into potholes or hit patches and the rough edge of the road. His bicycle bounced two or three times. The tar in the potholes may have sunken in but he knows that he hit potholes. The handlebars of his bicycle turned anti-clockwise and at that point he lost control of the steering. The bike went straight across the bitumen onto the right hand side of the road. He was heading towards two trees, he leant his left leg on the frame of the bicycle to steer between two trees. He then fell in the manner he described which has been referred to earlier in this judgment. 168 The second defendant submitted that the plaintiff should fail because he could not identify the particular potholes and patches and edge breaks. The photographs taken the following day by Paul Thompson (Ex M - 1 photograph and N - 7 photographs, and D2/4 - enlarged M & N) do not depict the potholes and edge breaks on the critical section of the road on the western side. Those photographs focus on the eastern side of the road. The photographs which show the critical section of the road were taken in October 1993 by the first defendant's expert Mr Milner, Ex D2/2 (Ex D2/22 are the original photographs of D2/2). These photographs broadly represent the condition of the road in February 1993. (t 194). The most important photograph is No 15 of Ex D2/22. Also of importance are Nos 10, 16 and 17 of Ex D2/22. The plaintiff identified the area where he went off the road by two crosses on photograph 8 of Ex N (the enlarged photograph 8 in D2/4). 169 At this stage comment should be made on the reliability of photographic evidence. The parties disagreed as to the importance of the photographic evidence of the condition of the road and the use the court should make of it. The plaintiff submitted that photographic evidence is secondary evidence. The courts recognise that the use of photographic evidence introduces peculiar difficulties due to the various ways in which photographic representations differ from nature in their two dimensional and static quality. Whereas the second defendant submitted that a picture is worth a thousand words and the photographs are manifestly reliable in relation to the factual propositions that it seeks to establish in reliance on them. 170 I accept that photographs should not be viewed in isolation. For example photograph 2 in the report of Professor Yandell (D2/30) shows the road at the accident site in a very poor condition, but that photographs reproduced elsewhere looks different. Hence, what is shown in the photographs must be considered together with the lay evidence of the condition of the road at the time the photograph was taken. The state of the road generally 171 In 1994 the network of roads in the Cessnock City Council area consisted of over 700 kilometres of road. They were 188 kilometres of sealed rural road, approximately 330 kilometres of gravel rural road and approximately 250 odd kilometres of urban road made up of both gravel and sealed surfaces. In 1994 there were 527 vehicles travelling on Quorrobolong Road and it was classified as one of low to medium traffic. As previously stated, Quorrobolong Road is a rural road that runs from Cessnock South to Sandy Creek Road. At the time of the accident it was mostly a narrow road being 5.5 metres (18') wide. It had a bitumen surface and ridge gravel shoulders. The evidence establishes that on the balance of probabilities the road was resurfaced in the 1950's. The last resurface most likely occurred in the 1970's. The applicable speed limit of the road was 100 kilometres per hour. 172 Lay evidence was given about the general condition of the road by lay witnesses namely the plaintiff, Mrs Valda Thompson, Mr Arthur Thompson and Mr Paul Thompson. The Thompsons are not related to each other. Mr Paul Thompson is an ex-coal miner who has been a friend of the plaintiff for the past 25 years. Mrs Thompson lives further down the road from where the accident occurred. Mr Arthur Thompson's property is across the road from the Barbers' property. Although the plaintiff did not know of any road in the surrounding area that was in better condition it was his view that this road was typical of a rough road at Cessnock (t 124.27). The plaintiff stated that Cessnock has the worst roads he had ever been on. Senior Constable Barber said that Quorrobolong Road is fairly typical of a number of large sealed roads in the Cessnock area, and it like other roads are in a poor condition all of the time. Nearly all of the lay and expert witnesses agree that the road was in a poor state and I find accordingly. Only Professor Yandell and Mr Robinson thought that the road was in reasonable condition. 173 Mr Arthur Thompson is a horse trainer who gave evidence that he drove his truck and horse float containing 8 horses along that road to the race track and back 6 days per week for 15 years. Mr Arthur Thompson described the road as being a narrow strip of tar down the centre, rough on the edges, pot holed with an abrupt sharp edge along both sides. It was rough because it had potholes and it had been repaired with patches after patches. Mrs Valda Thompson agreed that the edges of the road are fairly typical of Cessnock rural roads and that some parts of the edges were better than others on the road. 174 Mr William George Pigram has a degree in civil engineering and master of business administration. He has worked in councils since 1975 and commenced employment with Cessnock City Council in 1989. More importantly he commenced employment initially as the pavement engineer and then became the rural maintenance engineer looking after the rural and main roads in the shire area. He looked after all maintenance and rehabilitation works associated with those roads at the relevant time. I place more importance on the evidence of Mr Pigram who both supervised the maintenance work and travelled along Quorrobolong Road in 1993 and the preceding years. I place less weight on the experts who did not examine the road at the time of the accident but based their reports on photographs taken in 1993 and inspections after the road had undergone the 1994 reseal. His view of the state of the road accords with the lay evidence. Mr Pigram agreed that the Quorrobolong Road was in a very poor state and that it was probably amongst the worst roads in Cessnock. It was so bad that it was towards derelict but he would not actually use the word derelict. It had extensive potholing that had been repaired and had extensive edge break which also had been repaired. It also had a considerable amount of alligator cracking. I make these findings. Were drains designed and constructed when the road came into existence ? 175 A road is made up in essence of three layers. There is a seal, which is the surface of the road usually made of black bitumen. The original seal placed on Quorrobolong Road was probably coal tar. Below the seal is a gravel pavement sometimes called base coarse material, which is made up of gravel material which the road is built from. Below the base course material is sub-grade material, which is the natural ground that is there before the road is built. The seal of a road deteriorates over time due to the effects of traffic, weather and gradual loss of flexibility. A good road is designed to last for 40 to 50 years, but it is expected that the road is resealed every 10 to 15 years. While the seal deteriorates, if the pavement is properly constructed it does not (Milner). 176 The practice of draining roads dates back to Roman times (Smith t 354 and Milner t 451.25). Tresequet of France in the 18th century was the first to introduce drainage ditches into actual road design and construction (Professor Yandell, 28 October 1999, p 6 para v) and table drains are fundamental to the construction of a road. In Buckle, which was decided in 1936, the High Court judges considered the effect of poor drainage on roads. The design criteria has not varied for at least the last 50 years. Definition of table drain 177 The engineering experts, Mr Pigram, Mr Milner, Mr Ross Lee Smith, Professor Yandell and Mr Lindsay Browne, who were called to give evidence disagreed on the issue of whether there were table drains or adequate drainage along the eastern and western sides of Quorrobolong Road in the area where the accident occurred. Expert witnesses defined "table drain" differently. In the 1989 edition of the Rural Road Design by AusRoads, para 5.341 says "Table drains are located on the outside shoulder in cuttings or alongside shallow raised carriageways in flat country. An unsealed table drain should have its invert level below the level of the pavement sub-grade for effective drainage of pavement". In any event it is not known whether this definition of "table drain" was applicable in 1935 or thereabouts. 178 According to Mr Pigram, a table drain is an open drain adjacent to the road. Its purpose is to take the water off the road and to allow the subsoil water to drain out (t 712). A table drain is normally clear of the outer shoulder of the road. It has batters that are usually one to four so it forms a "V" shape and the depth is in the vicinity of 12 inches but the depth is governed by allowing water to run longitudinally along the drain and will get deeper. Mr Milner gave evidence that a table drain should be on either side of the road, be an open "V" and normally be two metres wide and 300 millimetres deep. According to him a ditch 15 feet from the bitumen is too far from the pavement to control moisture in the pavement layers. 179 Mr Smith defined a table drain as a depression in the land adjacent to the road. It is an area beside the shoulder that is a depression and can be any length or depth. However he was not familiar with the definition as contained in any of the glossaries. He could not explain the difference between a cut off drain and a table drain. A drain should have a length , a breadth, a depth and a gradient. 180 The function of a drain in engineering terms is to intercept water before it approaches the road from the surrounding land, to carry the water away from the road and to de-water the pavement. In other words a drain's function it to lower the water table to maintain the pavement strength (t 503). It is good practice on any kind of sealed rural road to have table drains on either side of the road particularly where there is a shallowed raised carriageway road in generally flat country (Mr Smith). However, the label given to the drain is not decisive, what is decisive is that the drain (if it exists) performs the function for which it is intended namely that outlined above. 181 It is common ground that the land surrounding the accident site generally falls to the north. Many maps and different types of maps were put into evidence. Mr Bernard Anthony Moriarty of Qasco Pty Limited an expert in photogrammetry gave evidence as did Professor Trinder who was until July 1999, the professor and head of the School of Photogrammetry at the University of New South Wales. He prepared a report dated 27 November 1999 (Ex AN) and four reports in respect of the years 1961, 1971, 1984 and 1994 (Ex AO). Photogrammetry is the art of showing in three dimensions and the transference of that information on to a map. Using the maps Mr Moriarty literally traced the information off the photographs and transferred it to the plans. A figure of 77.5 shown on the map means that it is 77.5 metres above sea level. The figures on the left hand side of the map represent the distance of cleared area. Mr Moriarty measured the distance from the bitumen to the fence line. The line with 9.8 is the fence line. So from the fence line to the edge of the bitumen in 1999 was 9.8 metres. On the map there are a series of handwritten letters - A, B, C, D. The letter A represents a distance of cleared area; B are places where Mr Moriarty actually measured the height of a tree; C the vicinity of the accident site. D was not used as it was indistinct in some photographs. All A to D are close to the bitumen edge of the road on the western side. 182 In 1961 B and C show heights above sea level of 86.1 and 82.8 respectively. Mr Moriarty ascertained that at that time the height of the trees was 8 metres and 5 metres. Professor Trinder agreed (1 961.35). In D the heights were very indefinite so Mr Moriarty did not add height there. So as far as he was able to say the tree height could be 8 metres or it could be 5 metres, or it could be 11 metres. Likewise 5 metres could be 2 metres, or could be 8 metres. 183 The map of 1971 showed the trees in B and C to be an elevation of 88.4 on B and 84.4 on C. Professor Trinder said that B tree was 91 metres and the trees in C was 85. The map of 1984 shows B as measuring 98.7 and C as 88.00 and in all other respects is the same. Professor Trinder thought that tree B was 84 to 85 and C was 85. Mr Moriarty calculated from the 1994 map that tree B measured 91 and C was 89.3. Professor Trinder agreed that B was 91, A was 86 and C was 85. These calculations contain a margin of error and cannot be taken to be the exact tree height. The difference between Mr Moriarty and Professor Trinder's estimates of the heights of the trees is insignificant. The trees existed in 1961 and were still there in 1991. The tree C, at the accident side was there from at least 1961 to 1994. This indicates that no work was done to remove the trees in that time period. 184 Mr Moriarty did not see any evidence of a major drain in 1961. When asked if there was any evidence of formed or regular drainage he said that the answer to that was both yes and no. (t 929 40). He said that towards the north or half way on the plain in the middle of the plan at spot height 77.2 he has shown a culvert and there is some evidence of drainage still there now. He was unable to tell whether the drainage in that vicinity was man-made or formed by natural water flow. (t 929.45). On the 1961 map the photograph shows no evidence on either side of any form of drainage. 185 In 1971 Mr Moriarty was now able to see that there was a water course leading south from that same culvert. It is shown by a dotted line at spot height 77.5 running in a southerly direction for a distance of approximately 60 metres. 186 In 1984 Mr Moriarty on the culvert to the south could see drainage which was actually labelled "indefinite drain". It travelled south from the culvert for a distance of approximately 115 metres. It runs from a point nears where the crown of the road is at 77.5 south to a little beyond 77.3 on the western side of the road. There is nothing on the eastern side at all. In 1994 an "indefinite drain" is still there and is still running at the same slope. With the exception of the drainage on the culvert further north there no other evidence of drains on either side. 187 It was Mr Smith's view that if the road had been built in 1935 and there was no maintenance in relation to the table drains they could disappear. According to Mr Milner, if a table drain was constructed in 1973 you would be able to see it in 1973, nothing was done at that time (t 49). Drainage on the western side of the road 188 There was no work done in relation to drainage on the western side of the road in the 1994 roadworks but the grading on the shoulder may have been altered. It is possible that the culvert was cleaned out. Stage one of these roadworks on the western side involved maintenance grading. Stage two was a reseal of the full width of the road. - see Exs D2/11, D2/12 for stage one, and D2/20 for stage two. (Pigram). Mr Pigram's evidence was that at the time of the accident there was no drain on the western side of the road. By that he meant there was no V-shape or a drain that had an invert in it. However, in re-examination Mr Pigram said that there was a natural drain on the western side of the road, such that the water fell or flowed away from the road, away from the shoulder. Mr Barber confirmed that in 1993 water would run off the bitumen seal onto the western side of the road and get away. 189 According to Mr Smith there is a creek or depression on the western side of Quorrobolong Road near the Barber house and it crosses underneath the road by a culvert. Mr Smith agreed that there was alligator cracking in photograph 1 of Ex D2/2 and hatched in the area. It was Mr Smith's view that the area where the accident occurred was well drained because there was a substantial level difference between the top of the road and the bottom of the culvert and the associated drains that run down beside the road. However, he later gave evidence that the drainage on the western side was absolutely minimal and there was no clear table drain. Mr Smith thought that the depression on the western side was about four or five metres off the road in a grassed area. He said that generally water falls and travels to the west across the Barber property and into Black Creek and there is a very flat grade across that land. While his evidence was a bit inconsistent as I understand it, Mr Smith's evidence was saying that although the accident site was well drained there was minimal drainage on the western side. 190 On the western side of the road Professor Yandell said that there was not a table drain but a drainage area. He said that it was not necessarily a table drain because the land to the west of the road was low enough to accept the run off from the pavement and carry the water north towards the culvert. Mr Browne agreed that there was a minimum table drain on the western side of the road but that it was barely adequate (t 353). It would carry water away from the drain but it would be easily blocked. Mr Milner gave the strongest evidence on the lack of drainage on the western side. He gave evidence that there was no drain on the western side of the road in the vicinity of the accident site. Mr Milner was of the opinion that there was no constructed table drain, ditch drain or open drain on either side of the road in February 1993 near the accident site. 191 From these views, I have come to the conclusion that there was a barely adequate natural drain or water course. The drain which flowed generally towards the culvert became easily blocked and flooded during intense and prolonged rain. This view corresponds with both the lay evidence of the Barbers and that of Mr Smith, Professor Yandell and Mr Pigram. 192 From 1961 until 1994 none of the trees near the shoulder on the western side of the road were cleared. This indicates, at least during this period no drainage works or maintenance of the watercourse were carried out on the western side of the road. If there was a table drain constructed in 1935 and no maintenance carried out, it could since have disappeared. The evidence does not on the balance of probabilities, establish that it was more likely than not that there was a drain constructed on the western side of the road when the road was constructed. Nor does the evidence allow me to conclude on the balance of probabilities that the drain, if there was one, was not properly designed on the western side of Quorrobolong Road in the relevant vicinity of the accident site in 1935. Drainage on the eastern side of the road 193 Mr Pigram knew that as a result of the construction work that was carried out in 1994 the table drain flowed to the north along Quorrobolong Road, around a bend immediately to the north of where the accident occurred and into a culvert under the road and flowed into Black Creek. Black Creek runs through Cessnock and out to the north. Trees on the eastern shoulder of the road were removed. (see also Moriarty and Marshall). 194 Mrs Barber gave evidence that council employees (which may have included Mr Bob Bedford) came out to their house on one or two occasions because when there was quite a lot of rain the water would run across the road to a dam which was on the eastern side across in the bush. On one occasion the dam filled up and the back water came back across to where it had originally been. This caused the tar on the side of the road to wear out. The tar would lift out making the surface rough. The first flood occurred about 5 years after she commenced to reside at Lot 1 Quorrobolong Road tie., in 1981) and it was at a time after prolonged heavy rain which caused a lot of areas in and around Cessnock to flood. 195 Where Mrs Barber referred to a ditch in her statements and evidence she clarified that by the word "ditch" she meant a hole in the ground. The ditch ran roughly parallel to the road on the eastern side. While she could not be certain, she said the general depression was oblong in shape, was 6 feet wide, 6 feet long, knee height, not straight edged but it did not lead anywhere. At the accident site it was wide enough to fit the plaintiff, police, ambulance and paramedic officers. 196 Senior Constable Barber described the plaintiff as being found down in a bush type of gutter. He described that after the gravel shoulder there was a large drop away that was about 3 feet deep. It ran roughly parallel to the road south of their driveway and partly to the north. It was overgrown, filled with debris and silt. In some places it may have been 20 metres wide and in others it may have been 6 to 8 metres. He drew a diagram of the bush drain (- see Ex D2/10). Senior Constable Barber would not exclude the possibility that the bush type of gutter was man made a long time ago and had deteriorated and had become blocked in places over the years. Prior to the accident, he did not observe any work being done to the bush gutter other than a grader would run up the side of the road from time to time. (t 575). Mr Paul Thompson observed that after the 1994 road work the trees were removed and the water table gutter was gone. (t 251). 197 In 1993 Senior Constable Barber said that although when it rained the water would run off bitumen seal onto the western side of the road and get away, on the eastern side (the scene of the accident) there was a ridge of dirt about 6 to 8 inches high where the water could not run off into the bush gutter and lay in potholes. 198 Once again Mr Milner gave the strongest evidence that there was no drain on the eastern side of the road. It was Mr Milner's view that there was a depression behind the trees on the eastern side of the road but it did not constitute a drain because it did not drain to somewhere, it did not have direction or a fall (t 492.27-32). Mr Robinson gave evidence that in May 1994 on the eastern side of the road where the plaintiff was found there was an overgrown depression which was roughly parallel to the roadway about 300 to 400 millimetres (12 to 16 inches) deep and about 3 feet wide. (t 529.30). 199 Mr Pigram's view from looking at the photographs (Ex D2/11, 1 and 2) was that the ditch shown is the invert of a drain which is 30 millimetres under the road. From photographs D2/12 the batter on the road was flatter on the eastern side of the road but there was still a formed drain there. From photograph F (D2/12) Mr Pigram said that there is a form of drain on the eastern side going north from the bottom of the photograph. He said that the property is at the same level to that of the road and that a drain is needed between the road and the property to take the water away. On the eastern side of the road he acknowledged that photograph 1 in Ex D2/4 showed a build up of gravel on the side of the road which prevented run off. 200 According to Mr Pigram the table drain was four to five metres off the edge of the road. It was behind the tree shown in photograph 7 ( Ex D2/4). Mr Pigram reached a conclusion that the drain must have been there prior to the establishment of the trees. The age of trees were estimated by the engineers to be between 20 to 60 years old. The table drain does not follow a straight course but meanders amongst the trees. Mr Pigram said that it was an unusual table drain but would not concede that it was never intended to be one. He assumed that nothing was done in relation to the drain between 1970 and 1992. 201 Mr Ross Lee Smith a civil engineer gave evidence that the topography runs to the north and there is a contour line 78 (Ex D/2 19, also photomap - this map was drawn in 1978) which is located just north of the Barber property and runs just about to where the plaintiff had his accident. To the immediate eastern side of the road, where the contour 78 crosses there is a bump. The land to the east of the road falls generally to the road. The gradient on the eastern side of the road meant that water would have ran towards the bitumen surface rather than away from it. Although the land falls generally to the north, the road does not. (t 785.52). There is a shallow raised carriageway on the eastern edge of the road and there is depression or dropping down about 6 metres off the road at the eastern shoulder. He said that this indicated that there was a small valley, drain or table drain east of the road at that location. South of the Barber property, where the 80 contour crosses the road, he indicated there is a build up of the road above ground level so that the road would be on top of the hump. Mr Smith opined that in the relevant section of the road the water would flow away from the eastern side of the road because of the slope away from the road over about three to four metres, and then it would flow longitudinally to the north to drain into Black Creek. He thought that the water lying on the eastern edge of the road which had pooled would only cause minimal permeation into the sub-base area. He said that water would not travel from further east into the depression because there was a raised up hump that would cut off the eastern land flow. He acknowledged that at the time of the accident on the eastern side of the road there were depressions, a build up of gravel and foliage, and it was likely that if it rained there was going to be pooling on the eastern side of the road. 202 Although Mr Smith gave evidence that the drainage was good, in his report he says that the furrow on the eastern side of the road next to the eastern bitumen seal indicated poor drainage. Apart from one spot on the eastern side of the road, on the northern bend (marked on photograph D2/19 with red pen) he was unable to tell whether there was a drain on the eastern side of the road. He says that he used the term table drain in his report because that was the term used in the RoadCon 90 manual. He rated the eastern table drain overgrown with grass and trees as being a "5" which is the worst score that it could possibly get. He considered that the trees and grass were an extreme obstruction. On the eastern side of the road when Mr Smith inspected the scene, he said that there was a very flat drain outside the shoulder. It has been grassed and was a bit obscure. There was a slight depression. 203 Mr Smith agreed that from the photographs he could not see a table drain. Mr Smith said that he would expect to see a table drain properly constructed, parallel to the side of the road between two to four metres away from the edge of the road. I found Mr Smith's evidence on this issue to be inconsistent. 204 Mr Browne gave evidence that from the photographs D214 there was no evidence of a table drain on the eastern side of the road. He reached this conclusion by the presence of the mature trees which meant it had not been possible to construct a drain without removing them. It was his view that even if there was a table drain 2 metres or thereabouts east of the roadway, it would have only had a minimal contribution to drainage as it was too far away. 205 Professor Yandell concluded that the fall of the land adjacent to the eastern side of the road in the accident area was sufficient to provide good surface drainage. He said that the surface water runs from the pavement edges northward to a culvert running under the road in an easterly direction to a creek. He concluded after a viewing of this accident site in 1999 that the whole of the pavement is high enough above the surrounding terrain that there would be no danger of flood in a rain storm below 10 mm per hour lasting for six hours. The lie of the land on each side of the road was either earlier formed or was naturally occurring so as to facilitate drainage northward to a definite watercourse and culvert. However, his observations were made after significant work was undertaken in 1994 so I attach little weight to this evidence. 206 Mr Marshall surveyor gave evidence that on 22 October 1999 he surveyed and prepared a series of documents from a stretch of road in the vicinity of the Barber house. Using a computerised theodolite he selected a base datum point and assigned to it the value of 100. Six maps number 1 of 6 through to 6 of 6 were prepared by Mr Marshall. The map number 1 of 6 has a series of lines extending horizontally across the map area marked X1-27. Each one of these represents a cross-section. Each of the cross-sections referred to are drawn on sheets number 3 of 6, 4 of 6 and 5 of 6 (Ex D2/32). Cross-section number 1 (X1) appears in the bottom left hand comer of number 3 of 6. This cross-section is cut down through the most southerly point where Mr Marshall commenced his survey and it shows the highest point - 101.46 represents the crown of the road. These maps represent the road as at 26 October 1999 ie., after the roadworks were done in 1994 and Mr Marshall accepted that nothing shown in 1999 can have any relevance to topography of the shoulder on the eastern side in 1993. However, according to Mr Marshall it has relevance to a natural drainage system going beyond the shoulder. All that can be gleaned from his evidence is that the width of the shoulder on the eastern side is between I to 2 metres and some distance from the shoulder is a trough line which represents the lowest level. 207 From the lay and expert evidence I have reached the conclusion on the balance of probabilities it is more likely than not that there was a gutter on the eastern side of the road which ran roughly parallel to the road that meandered around the trees. It does not form a "V". The grade land on the shoulder is very flat. The gutter may have been oblong, about 6 feet wide and 3 feet deep. In places it was as wide and 20 feet. At the time of the accident the gutter was overgrown, filled with debris and silt and blocked in places. This gutter does not fall within the definition of table drain or of a drain generally. It did not carry water away from the road adequately. No maintenance had been carried out on the gutter from at least 1970 to the date of the accident. There was a ridge of dirt 6 to 8 inches high where the water could not run off into the bush gutter and lay in the potholes. I do not consider that there was adequate drainage on the eastern side of the road at the time of the accident. 208 From 1970 at the latest until 1994 none of the trees near the shoulder of the eastern side of the road were cleared. This indicates, at least during this period no drainage work or maintenance of the drains were carried out by the second defendant. If there was a table drain constructed in 1935 and no maintenance carried out since then the drain could have disappeared. This evidence does not establish on the balance of probabilities that it was more likely than not that there was a drain constructed on the eastern side of the road in 1935. Nor can I say on the same basis that if a drain was constructed it was improperly designed on the eastern side of Quorrobolong Road in the vicinity of the accident site. The plaintiff's claim in relation to negligent construction and design of Quorrobolong Road fails. Repair maintenance of the surface of Quorrobolong Road, Cessnock 209 According to the plaintiff, the second defendant acted without grappling with or remedying the essential problem as to the cause of the broken edges and potholing and failed to carry out proper patching repair and proper drainage. According to the plaintiff this constitutes misfeasance. In relation to negligent repairs and maintenance, the thrust of the plaintiff's case is that the defect in the relevant section of the road gave rise to pavement and/or sub-grade failure. Potholes and edge breaks were caused by inadequate drainage. The plaintiff submitted that any intervention made by the council in the nature of maintenance or repair which omitted to rectify the cause of the defect in the road surface amounted to actionable negligence. The plaintiff also submitted that the second defendant is liable for misfeasance on each occasion when it carried out repair work by means of temporary patching instead of permanent patching without grading and clearing the shoulders of the road so as to prevent the pooling of water on the shoulder areas next to the repairs. By not fixing the root of the problem the Council allegedly caused the ongoing damage to the road to be accelerated. 210 The second defendant submitted that by carrying out temporary patching ie., superficial repairs rather than a more radical repair of attending to the drainage problems, it did not attract liability. Alternatively, the second defendant submitted that the patches and filled potholes that brought the plaintiff to grief were not the product of negligent repair but rather were from normal wear and tear to the road or from properly executed repairs. Further the second defendant submitted that there was no evidence that the repairs created or added to the danger or rendered an untrafficable road trafficable or created a hidden trap - the repairs and rough edges were always visible. 211 The parties referred to a number of authorities on the vexed question of nonfeasance/misfeasance . They are Buckle at pp 281-2, 283, 284-5; Gorringe v The Transport Commission (TAS) (1950) 80 CLR 357; Florence; Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232 at 236 per Mahoney AP; UTA v Purcell (1994) 82 LGRA 284 at 288; Campbelltown City Council v Crain (NSWCA, 9 October 1998, unreported); Bottomley [1999] NSWCA 28; Lake Macquarie City Council v Day [1999] NSWCA 26; Threadgate v Tamworth City Council (NSWCA, 24 February 1999, unreported); Hill v Commissioner for Main Roads 68 LGRA 173; Marr v Holroyd Municipal Council (1986) Aust.Tort.Rep 80-031 at 67,787; Attorney General v Borough of North Sydney (1893) 9 WN 177; Singleton SC v Brodie [1999] NSWCA 37; Barbieri v Fairfield City Council [1999] NSWCA 405; Ghantous v Hawkesbury CC [1999] NSWCA 51; Gosford City Council v Timbs [2000] NSWCA 31; and Gloucester Shire Council v McLenaghan & Anor [2000] NSWCA 208. On 1 September 2000 the High Court in Ghantous and Brodie (s 69/1999), reserved its judgment in the application for leave to appeal. 212 The starting point on the nonfeasance/misfeasance issues is Buckle where Dixon J, (as he then was) said: "It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinct from a discretionary, duty of repair and to confer a correlative private right (cf City of Vancouver v McPhalen (1911) 45 SCR (Can) 194). … The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility. It must decide upon what roadway it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise an other power belonging to it as a highway authority." 213 In relation to drainage, Dixon J in Buckle at 291-292 stated: "It is a mistake to suppose that simply because a thing as a covered drain or gutter is of such a nature that it will, when it falls into disrepair or dilapidation, cause a dangerous condition of the highway, it is incumbent on the road authority which put it there to take active measures to prevent or remove that condition. If the drain or gutter forms part of the road construction and is put there to serve a purpose arising out of its character as a highway, as for example to carry off the surface water, or to drain off seepage and protect the road base, the road authority incurs no civil responsibility by allowing it to fall into a condition of danger, unless in the first instance it acted improperly in placing it there. If the road authority showed a want of care or skill or took an unreasonable course in the adoption of such an expedient or in the design or execution of the work, neither lapse of time nor the use in the interval of some additional precaution which while it was practised had prevented any ill consequences ensuing would relieve the road authority of civil responsibility for damage ultimately caused by the work But, given due care and skill and proper regard for the public safety in the first instance, the road authority does not lose its immunity from liability for damage arising from its failure to uphold, maintain and repair because the work that it has done for highway purposes may, or even probably will, under the influence of wear and tear and the stresses of use, give rise to a defective or dangerous condition." 214 Gorringe was concerned with a large hole on a highway caused by the collapse of a culvert through which ran a natural water course. Latham CJ stated: "... the plaintiff contended that in the present case there was misfeasance because the Commission did not simply leave the road alone; it did repair the surface of the road, and it is contended that there was negligence in the repairs so effected. In East Suffolk Rivers Catchment Board v Kent ([1941] AC 74, 102) Lord Romer stated the law in the following manner: 'Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing.' Thus the Commission was not bound to repair the road, but if it did repair the road it was under a duty to repair it without negligence. If the Commission repaired the road negligently in such a way as to create a danger or to add to danger and damage was thereby caused to persons lawfully using the highway the Commission became liable for that damage." 215 and at 371: "To fill in the depression with earth or gravel did not mean that traffic could pass over the culvert while without the filling it could not. With or without it the road was passable. It meant only a more level surface. I do not say that the result would have been different had it been otherwise. But it cannot be said that the commission's employees did anything that would amount to throwing an unsafe road open to traffic afresh or providing a place for traffic not otherwise available that was unsafe." 216 The plaintiff referred to Hill. The facts in Hill are that prior to a motor cycle accident a corrugation caused by a shoving effect in the bitumen surface of a roadway was found to be caused by inadequate drainage. Prior to the accident the council carried out patching to restore a reasonable surface but did nothing about the drainage. 217 In Hill the Court of Appeal per Samuels JA (with whom Kirby P and Priestley JA agreed) stated the respondent knew during 1980 that, in consequence of inadequate drainage, the condition of shoving would recur and that the patching which was performed was merely a superficial expedient which was neither designed nor apt to cure the basic cause of the condition. Hence, it was submitted, to patch the road without attacking the drainage was negligent and, if it was, it was an act of misfeasance and was causally connected with the damage. 218 In both Hill and Gorringe, the highway authority did not grapple with the root cause of the problem. In Hill, Samuels JA pointed out the material difference between Hill and Gorringe is that in Gorringe the work done was designed merely to improve the surface of the road and not render passable a trafficway which was otherwise impossible to transverse, and that the depression did not represent a danger. The depression could be negotiated without risk and did not render the road inherently unsafe. However, in Hill, the sequence of events recurred consistently. The defective drainage (my emphasis added) caused the shoving to reappear and this shoving was a danger to the public ( p 52). The deformation would occur and become dangerous soon after the patching had taken place, and then further patching would take place. This consequence was entirely predictable and foreseeable. The patching was held to be negligent because it failed to remedy a foreseeable risk that the Commissioner of Main Roads knew was certain to reappear some time in the future with predictable and hazardous consequences to users of the highway. The patching did no more than throw open an unsafe road to the traffic afresh. 219 Samuels JA stated: "It seems to me that this amounts to a misfeasance. The essence of the active intervention, negligent in character, was the conversion of an unsafe carriageway into an apparently safe carriageway - one which would remain safely negotiable for a period but which would inevitably deteriorate into danger." 220 In Threadgate, Powell JA (at para 21) expressed the above principle in this way. A highway authority may be rendered liable to those who are injured when using the highway if the authority was an active agent in creating an unnecessary danger in the highway. 221 In Marr, a motorcyclist struck a pothole and suffered injuries. In Marr, an argument, similar to the one the second defendant has submitted in this case was raised, namely the plaintiff cannot identify the specific pothole so his case should fail. Clarke JA was not troubled by this submission. Clarke JA found that from the peculiar shape of the pothole, there was reasonable explanation was that there was a failure to achieve a proper mix of materials used in the efforts to repair the original pothole. It was the defective nature of the repair that caused the reappearance of the pothole at a much earlier time than had the pothole been properly filled (pp 240/241). This meant that it was not a "wear and tear" case and the highway authority was not immune from liability. The plaintiff had made good his case in misfeasance. 222 Buckle concerns a hole in a broken drain; Bottomley, an irregular and sharply sloping portion on the roadway; Threadgate and Timbs the plaintiff fell on a nature strip on a council footpath; Barbieri, a stormwater cover and Brodie, the facts are that a bridge collapsed beneath a truck being driven on it due to defective decking planks. In Hughes, the plaintiff tripped and fell while waiting for a bus. Tree roots had cracked the asphalt and the roots of the trees were exposed. In Purcell, the plaintiff, an elderly man, tripped and fell over a jagged stump of a metal bus zone pole on the footpath. McLenaghan concerned an apportionment of liability in relation to a motor vehicle accident. 223 If the Council, did not carry out any maintenance to the drainage system on the western side of the road but intervened to carry out temporary pothole and patching repairs does it have immunity under the nonfeasance principle? Was the Council under an obligation if it carried out road repairs, to clear the shoulders of trees and unblock the drainage systems on each side of the road and thus grapple with the root of the cause of the problem? Did the Council by carrying out temporary patching without rectifying the drainage problems add to the danger, or add to the danger and damage? Once the Council repaired the road, did it repair it negligently? The section of the road 200 metres north from the Barbers' southern boundary 224 The plaintiff had observed the road gang carry out maintenance on the road. About three months before the accident at the accident site, the plaintiff had seen the Council workers in a yellow track fill the potholes on the rough edge of the road. The rough edge of the road was the edge of the tar that was all rough and broken away. (t 17). The patches were not the same level as the road and they did not do a real good job on the edges. (t 18). The undisputed evidence was that a gang of five Council employees carried out temporary patching in the following manner. The gang would, in a fashion sweep the material out of the potholes so that they were clean. A truck would go by and council workers would shovel premix from the truck into the open pothole. The premix in the pothole would then be patted down by means of the back of a shovel or by driving a tyre wheel over it. Between 1970 and 1990 the road crew would have travelled along that section of the road about 200 times. 225 Since 1976 Mrs Barber gave evidence that the condition of the road near her property had remained basically the same. Mr Barber described the road as being always in poor condition. There were always potholes filled with tar on the road. The premix fill in the potholes was always washed away with rain and trucks going over them. Then open potholes would re-occur. Specifically, Mrs Barber's evidence was that this procedure was carried out on the road both to the north and south of her driveway. The patches that were placed to the north and south of her driveway would last 2 or 3 days or a week and then they would be gone (t 647.15). Neither the patches to the potholes or edges were permanent. 226 Senior Constable Barber and Paul Thompson gave evidence that occasionally a grader would push the loose gravel and dirt on the shoulder of the road back up to the edge of the tar to cover the potholes. However the gravel and loose dirt did not remain there for very long. After it rained the gravel washed away and the edges chopped themselves out again. Mr Barber described the bitumen edges as being quite sharp and fell away to potholes and that they were a common sight along the road. It was Mr Barber's opinion that the water would run off the sealed roadway onto the gravel shoulder where there were potholes and they would fill up. After rain, the road would develop other holes. Logging trucks, coal trucks and rain would destabilise the pothole fillings (t 661.5). 227 Over a period of time, Mr Barber and the Thompsons observed that the patches on the road became bigger, higher or pushed down and made a dint in the road. Some of the potholes crumbled and the ensuing hole became enlarged. Mr and Mrs Barber said that at the accident site there were edge drops of between 5 and 6 inches in some places and 1 and 2 inches in others. Mr Arthur Thompson identified the areas which had 4 inch drops. (Ex N, photograph 6). 228 In photograph 4 of Ex D2/4 Mr Smith identified a trench edge break on the eastern side of the road near the Barbers' house. There is another broken section shown just below the trench edge break. It is noted that these observations relate to the eastern side of the road. 229 Mr Smith conceded that the different levels on the bitumen were not ideal for a bicycle and that it could cause a bike travelling at speed to lose control. Mr Smith said that from photograph 15 of Ex D2/22 there is less drop off on the northern side of the Barber driveway (where the accident occurred) than the shoulder on the southern side of the driveway. He discounted the effect that a flood would have on the seal and sub- grade of the road. Nevertheless he conceded that it was only safe to drive in the middle of the road particularly along the Barbers' section of the road. Mr Pigram noted that in photograph 15 of D2/2 he could see one repaired pothole on the eastern side of the road. Similarly on the composite photograph (D/2, 16 and 17), on the eastern side of the road he circled two repaired potholes. He did not identify any repaired potholes on the western side of the road. 230 When Arthur Thompson was shown photographs 14 and 15 of Ex D2/2 he thought that there had been recent patching as the patches were dark and there was some spill from the truck on the side of the road. This looks to be correct. Mr Paul Thompson described the area of the road from the Barbers' drive going north towards town up to the left hand bend as having jagged edges of tar on both sides of the road and potholes even though it had been repaired. He described the road as being rough and terrible. He said that now that area of the road had been widened and the trees had been removed and the water table gully no longer exists. 231 Mr Barber described the situation that if a car was coming in the opposite direction he would have to move and then make a right hand turn into his drive and by that time he had usually hit a few potholes and lost hub caps. At the accident site there were potholes in the bitumen surface itself and from time to time potholes appeared on the gravel shoulders. Unlike his wife he had never noticed after heavy rain the water flooding across the road hitting the embankment on the eastern side and flowing back across to the top of bitumen. He had observed the bitumen surface lifting but that was up near the culvert or creek. 232 In photograph 15 of Ex D2/2 there are potholes marked X, Y, Z and AA. Mr Smith said that pothole patching X and Z were very recent and might only be one week. (This is the area the plaintiff identified as where he hit the potholes). He thought that patch AA was between two weeks and one month old. It was his view that the cause of the potholing or edge breaks in photograph 15 was because of the brittle surface seal and as the tyres run along the edge off the road where there is no support to that seal it breaks away. Then a little bit of water would get into the break and the seal would fall off readily. From the photograph it appears that potholes repairs had been executed on a number of occasions, most recently about one month after the photographs were taken in September 1993. 233 It was Mr Browne's view that there was absolutely no doubt that the repairs were temporary and furthermore there were patches on patches and the repairs were haphazard. By that he meant that the repair of the road was not carried on in any methodical manner (t 351.55). Mr Milner and Mr Browne held the view that the Council should have kept the area clear of trees and the table drains, if there were any, should have been kept unobstructed (t 386). 234 Mr Smith agreed that because of the potholes and the broken edges there was danger for cyclists riding on this road over and above what would be expected had the road been in proper shape (t 828.35). Mr Smith then said that the photographs shown in Ex 22 showed the road as being safe for cyclists but he did not know if it was safe for cyclists training for racing. He agreed that if the plaintiff had hit potholes the road would not be safe unless the difference in the filled pothole was about 100 millimetres. Mr Pigram conceded that there were potholes of 300 millimetres wide with a depth of 100 millimetres in existence at the accident site at the relevant time. Hence, Mr Smith's assumption is incorrect concerning the difference in height of the filling. So Mr Smith was saying that the potholes repairs were not safe. Mr Smith also considered that the significant drop down on the edge would be dangerous for a cyclist. The danger Mr Smith saw to the cyclist was caused by a longitudinal drop off between the seal and the shoulder. That in his mind would cause a risk of the cyclist losing control. He did not think that the general bumpiness of the road would constitute a hazard or safety issue as it is not a longitudinal discontinuity in the road surface. Mr Smith agreed that the work that the council carried out in September 1994 should have been done in early 1993. He said that generally the success rate for temporary repairs is nine out of ten and these repairs would still be there after one month had elapsed. The lay evidence, which I accept was that the failure rate of the temporary repairs was much higher than that. 235 Professor Yandell wrote two reports dated 3 June 1999 (Ex D2/30) and 28 October 1999 (Ex D2/31). Professor Yandell said the road benefited from its long existence. This ensured the sub-grade and base were strong and well compacted. Apart from the addition of rubber in the binder spray, sealing has not changed much since 1935. The one metre deep drain ensured the water table was kept out of the sub-grade. It was Professor Yandell's belief that Cessnock City Council sufficiently managed the section of the road where the accident occurred in 1993 to date. In his latter report he said that there was no restoration of the sub-grade on the western side of the road and that the new seal was merely applied on top of the old seal. This is not correct because according to Mr Pigram the pre-patching was removed and the affected area was cleaned out and permanent patching was put on it, ie., part of the sub grade was removed. Professor Yandell said that the absence today of any pavement failure on the western side of the road allowed him to conclude that there was no sub-grade failure on the western side of the road at the time of the accident. It was Professor Yandell's view that on the western side of the road at the time of the accident the potholes were not caused by saturated base sub-grade but by water penetrating surface cracks in the seal. On this topic he agrees with Mr Smith. It is his view that edge break occurs even when the surface and sub-grade drainage are exceptionally good. He gave measurements in relation to drainage. These measurements were taken when he visited the site on 22 June 1999, that is after the 1994 roadworks were carried out. Professor Yandell's opinion was that the formation of potholes or edge break was not due to base sub-grade failure but to other factors that are inevitably associated with a sealed road with unsealed shoulders. Because his view is based on two incorrect propositions, I attach less weight to his evidence. 236 Photographs in Ex D2/29 show that on the western side of the road was an edge break which had been repaired at the completion of stage one. Mr Pigram could no identifying any potholes or repaired patches in those photographs, but acknowledged that it was difficult to tell whether there were depressions or ruttings on the road from the photographs. He agreed that from looking at photograph Y in Ex D2/23 he could see patching along the western side of the road associated with edge break. All of this evidence has little weight as these photographs were taken in 1994. 237 On the western side (photograph 15 of Ex D2/2) in the area north of the Barber driveway there is a continuum of filled potholes and patches of differing ages and sizes at the edge of the bitumen. From looking at the relevant photographs the surface of the seal looks to be uneven. While I cannot discern any sharp edge breaks from the photograph 15 of D2/22 (original photograph), I defer to the evidence of the lay witnesses that there were edge drops of between two to five inches at the time of the accident. Mr Milner estimated the drop off to be between 25 millimetres to 50 millimetres at the deepest in that area. (t 472). There is a small patch of alligator cracking around the sealed edges of the pothole AA towards the centre of the road. This section of the narrow road was in poor condition at the time of the accident. 238 In case I am found to be wrong and the plaintiff went off the road on the eastern side, from the evidence and by examining the photographs depicting the eastern side of the road, I am satisfied that at the time of the accident there were numerous patches and filled potholes (sometimes the distinction is blurred). Some were severe potholes some 300 millimetres wide with a depth of 100 millimetres at the edge of the sealed portion of the road. The eastern side of the road had edge drop offs of between 2 to 4 inches. Just at the edges of the bitumen and around the filled potholes, there were areas of alligator cracking. 239 In order to determine whether the Council was obliged to grapple with the root of the cause of the problem, namely lack of drainage it is necessary to determine the cause of the pavement failure. Was the lack of drainage the cause of the continual need for maintenance which comprised of pothole repair, repair to patches and edge breaks? Cause of pavement failure 240 If the cause of the pavement failure was the wear and tear and aging of the seal the Council is not liable as this constitutes nonfeasance. If the cause is poor drainage and this caused the potholes to continue to fail, the Council was aware of this, and took no steps to get to the root of the problem this would constitute misfeasance. 241 Mr Milner and Mr Browne attributed the cause of the pavement failure at the accident site as being due to inadequate drainage. Mr Smith and Professor Yandell disagreed with this proposition. Mr Pigram thought that inadequate drainage may have been a contributing cause of the pavement failure. According to Mr Milner, the alligator cracking in the photograph in D2/14 is symptomatic of a drainage problem. Quorrobolong Road is narrow with no drainage, and the damage to the edge of the road was compounded by doing temporary repairs without fixing the drainage and this process was making matters worse. Mr Milner was adamant that the cause of the pavement failure was inadequate drainage. Mr Pigram did say that generally poor drainage is a major contributor to pavement failure. Mr Pigram agreed that if the surface of the road does not remain dry it may fail. He agreed that photograph 7 in Ex D214 showed alligator cracking which was indicative that the sub-grade was failing and that the drainage was a contributor towards it. Mr Pigram examined the photographs in Ex T and said that there was nothing in those photographs to indicate pavement failure of the pavement itself. 242 As previously stated, at the time of the accident Mr Pigram said that because of the depth of the potholes, water may have penetrated through the pavement material down to the sub-soil. He conceded that may be a point of ingress where the water may penetrate into the sub-grade of the road, and likewise with broken edges which were another possibility of ingress of water into the sub-grade of the road. Also the alligator cracking would allow the water into the pavement of the road and then into the sub-grade of the road. 243 Mr Smith agreed that the pooling of the water would lead to the weakening of the edge of bitumen and if there is weakening of the sub- base at the edge of the bitumen that would contribute to the broken edge and potholing at the edge of the bitumen. Mr Smith did not think that the water would get into the base because he made the assumption that it was made from ridge gravel which was naturally occurring in the area, and this material is impermeable. However he agreed that it would have been preferable to have drains on either side of the road and that if water was permitted to pool on the edge of the road at the gravel and dirt edge the bitumen edging would wash away and expose the depth of the edge and make it more vulnerable to cracking and breaking with vehicular traffic. He thought that the effect of the water on the edge breaking would be a more than minimal factor. 244 It is Mr Smith's view that the alligator cracking was not caused by water getting into the sub-grade. According to Mr Smith, even if it was assumed that there was perfect drainage on the road, there would still be edge breaks due to the age of the seal. Mr Smith looked at photograph 4 of Ex N and said that the cause of the alligator cracking was not because of sub-grade failure. The asphalt seal of the road had hardened and become brittle. Mr Smith believed that the edge break and potholes were caused by the old age of the asphalt seal and the impact of traffic passing over the edge and there was a small contributing factor of water. There would also be potholing problems down the wheel paths. He acknowledged that there was pooled water on the north and south side of the Barber driveway in photograph 8 of Ex T. After examination of photographs contained in Exs M and N he said that he could only see edge break repairs and pothole repairs on the outer edge of the road, but it was his view that this was not the sort of pothole patching that you would expect to see if there was sub-grade failure. 245 Mr Smith said that had there been sub-grade failure when the road was resurfaced and widened, the vehicles are focused to travel down one side of the road instead of the middle so that the load is moved to other parts of the road. If there was inadequate sub-grade due to poor drainage he would have expected to find rutting in these new wheel paths that had not been trafficked in the earlier life of the road. He saw no evidence of that type of rutting. Mr Pigram said that factors which influenced pavement failure included inadequate compaction of the gravel formation of the base course or sub-grade, the qualities of the materials in the gravel formation or sub-grade or the qualities of the material in the gravel pavement or sub-grade could be inferior and break down in time. Another important factor was the traffic loading on the road and aging could be a factor. It was Mr Pigram's view overall that potholes on the road are a result of the failure of the seal because it allows the water to penetrate into the gravel pavement underneath. The reseal will give a new surface to the road which will stop the water penetrating into the gravel. If the seal was failing due to wear and tear, the Council had no obligation to do anything. 246 Mr Lindsey Browne gave evidence that it was his view that from the photographs taken at the scene of the accident a few days after the accident occurred the eastern side of the road was not adequately cleared. His reason for reaching this conclusion was because the trees are in proximity to the edge of the pavement, which would create a situation in which the road could not be drained and the gravel shoulders could not be maintained, and in the absence of drainage it was highly probable that the pavement would fail and the inability to be able to grade the gravel shoulders could lead to a fretting away of the edges, a reduction in the pavement width and a drop off from the gravel to the bitumen edge. (t 350.5-15). It was his view that the road pavement failed because there was an inadequate pavement depth to support the vehicles loading and/or a saturated sub-grade. It was Mr Browne's view that the cause of the failed pavement were fundamental design failures that the pavement was either saturated due to inadequate drainage or inadequate strength or both. (t 357). Mr Browne said that it was desirable that the minimum pavement width was 20 inches with two six inch gravel shoulders. 247 Mr Milner said that there was no drainage carried out because of the presence of the mature trees close to the shoulder of the road. He estimated the age of these trees to be in excess of 50 to 60 years old. There were however no mature or other tree trunks north of the driveway on the western side close to the shoulder (t 485.10-28). According to Mr Milner clearing the trees is a very minor preliminary part of the costs of a road construction. 248 Whatever the cause, the pavement had reached the end of its useful life. I accept that a cause of the failure of the pavement was the wear and tear of the seal. The brittle seal allowed water to pass through and permeate the sub-base. However, it is my view that poor drainage materially contributed to pothole failure, patching and edge breaks along both the eastern and western edges of the road at the accident site. I prefer the evidence of Mr Browne and Mr Milner to that of the other experts on the drainage issue. Mr Pigram conceded that drainage may have been a contributor to the failure of the pavement. In any event, Mr Smith accepted the proposition that pooling of water would contribute to the broken edge and potholes at the edge of the bitumen. The drainage failure led to water permeating the sub-base. This caused the temporary patching and pothole repairs to last only a very short period of time sometimes for only a few days, and ensued that the potholes, patches and edge breaks became larger. 249 Between 1989 and 1993 the Council had an inspection program whereby an overseer would inspect major roads in the council's areas on a set routine basis. Most roads were inspected at least once if not twice per week. The purpose of the inspection was to see if the road was safe or to see if immediate action was needed to be taken to make the road safe and in a trafficable condition. In relation to Quorrobolong Road, a weekly inspection took place on Tuesday of portion of the road, and Friday the remaining portion, of each week. The overseer would travel over the road at normal traffic speed in a vehicle, and note any potholes or edge breaks or other failures on the road that would require action. That record would be used to program the work crew in the next couple of days. There was also routine maintenance work carried out on this road. Summaries of the green sheets which detail specific complaints of June/July 1992 and January/February 1993 are in evidence. They do not include specific complaints concerning the accident site. There was no permanent patching done on Quorrobolong Road in 1991 and 1992 although there was permanent patching done on other roads. Quorrobolong Road was not classified to get permanent patching because it was of low priority. The Council by virtue of its road gang inspecting and carrying out maintenance on Quorrobolong Road knew that the potholes, patching and edge breaks on both edges of the bitumen was a recurrent and worsening problem. By carrying out these repairs on a continual basis, it is my view that the Council was aware that the maintenance activities did not grapple with the root of the problem. Mr Pigram gave evidence that without doing any maintenance and grading on the shoulder, the water would remain there as before. In respect of the drainage system, if the road was resealed without doing anything the purpose of the maintenance grading on the western side prior to the reseal was to remove any drop off that was there. 250 However, did the Council by filling the potholes with premix, do so negligently in such a way as to create danger or add to danger? The unanimous view was that to fill the pothole was a safer course of action than to leave it unfilled. Mr Smith's opinion was that the road was in a poor state and there had been poor maintenance, but that it was trafficable. He said that if the plaintiff had gone over filled potholes which were over 100 millimetres less than the surface of the road it would not be safe. The significant edge drop also in Smith's evidence made the road dangerous for a cyclist. (t 828.10). Mr Milner thought that as at February 1993 the road was trafficable but not safe and it would have posed a hazard for bicycles particularly due to the patching. Mr Milner considered that in 1993 the broken edges and potholes were a severe hazard to cyclists and made the road extremely dangerous to them (t 460). According to Mr Milner, no attempt has been made to trim back to sound pavement at the edges causing the patching work to be ineffectual. It was Mr Milner's view that the rough patched and fretted narrow and aged bitumen seal was unsafe for light vehicles and bicycles. He also said that had a proper edge repair been carried out by the Council the sealed surface near the edges should have been as good as any other part of the properly maintained pavement surface. 251 Mr Robinson primarily gave evidence about the cause of the fracture of the head stem tube, but also has had some experience investigating motor vehicle accidents. He admitted that he was not an experienced road engineer who had been involved in road construction. He expressed the view that the road at the accident site was in a reasonable condition for a rural road in May 1994. Because he is not an expert in this area of expertise, I attach little weight to his opinion. Professor Yandell also gave evidence that the road was in reasonable condition for motor vehicles and normal cycles. For reasons given earlier in my judgment I attach lesser weight to his evidence. 252 Mr Browne acknowledged that the repair work on the information briefed to him of Quorrobolong Road was of an extremely poor nature and it should have been evidence to the Council that these repairs at best could have been regarded as temporary and that their dislodgment of passing traffic would in fact exacerbate the poor road conditions and lead to a situation where a dangerous situation was posted to the travelling public not the least cyclists. Mr Browne suggested that the mere filling of potholes with an asphaltic mix without preparation, compaction or regard for the stability of the surrounding pavement materials leads to a situation where the repair is readily displaced by traffic and the failure rather than being confined to its original size progressively increased and the problem compounded itself every time a temporary repair is carried out. This process has also been described by other expert and lay witnesses. Mr Milner said by carrying out pothole filling and edge patching in that fashion caused greater damage. It was Mr Browne's opinion that the maintenance procedures appear to have been carried out without any professional input. 253 The effect of the Council, carrying out temporary repairs meant that the surface of the road was made more level that it would have been had the potholes not been filled. It was safer than if no action had been taken. But the premix was not properly compacted. Even though the repairs were carried out on a regular basis, the temporary pothole, patch and edge repairs did not last very long. Sometimes pothole repairs north of the Barber driveway lasted only a few days. As the witnesses both expert and lay explained that with temporary patching when the fill comes out and prior to any further re-patching being done, there is liable to be further deterioration of the pothole. According to Mr Pigram, this means that the Council workers are on a treadmill, in that they have to come back periodically and repair the pothole as the only means of maintenance. This is precisely what occurred on the western edge of the road north of the Barber driveway. 254 It is common ground that the Council owed a duty of care to road users. The road users included cyclists. It was foreseeable that if a section of the road was repaired by means of temporary repairs and some of those repairs could be expected to last only a few days, a cyclist or motor vehicle driver could run into a series of patches and potholes that were of uneven height and suffer injury. The risk is not far fetched and fanciful. In 1992 the state of the road in Cessnock was such that Mr Pigram wrote that due to over-expenditure , for some time patching sealed roads was stopped and that may cause the roads to deteriorate to an unsafe condition. Although temporary patching continued, the temporary repairs meant that Quorrobolong Road at the accident site represented a danger to cyclists and motor vehicle drivers. 255 The Council by carrying out the temporary repairs without fixing the drainage, caused the potholes and patches and edge breaks to increase in size. The level of the road varied and this created an unnecessary danger along Quorrobolong Road. The road would remain safely negotiable for a period, but would inevitably deteriorate into danger. The Council knew that the potholes and edge breaks were certain to reappear within a short time, with predictable and hazardous consequences to users of the road. The patching and edge break repairs did no more than throw open an unsafe road to traffic afresh. 256 The risk could have been eliminated by a reseal of the road or the carrying out of permanent patching. Quorrobolong Road was one of the worst roads in the Cessnock area and was near derelict. The magnitude of the risk was high. As previously stated, the continued practice of carrying out temporary repairs and ensuing "treadmill" meant that this method, at some point over the 23 years was more expensive than properly repairing the road at the accident site. The costs of a reseal from Racecourse Road and Mountain View Road was $90,300. This quote includes clearing the trees, and unblocking the drains. The Council could have used the funds more efficiently from 1970 so that it could afford to carry out a reseal rather than constantly carrying out temporary repairs with an ever increasing frequency. The Council is liable for its misfeasance. 257 It is my view that the temporary repairs to the potholes, patching and edge drops were not of a reasonable standard and represented a danger to cyclists and motor vehicles. (see Browne, Milner and Smith). The manner in which the temporary repairs were carried out fell below a reasonable standard. Was it reasonable for the Council to carry out temporary patching rather than permanent patching or resealing the road ? 258 All the experts agreed that from a safety point of view non-intervention was not an option and temporary patching properly executed removed the danger to public safety. It was common ground that to remedy any failure in the sub-grade, that portion of the road needs reconstruction or permanent patching. If the road is resealed without doing anything to the shoulder shown in Ex D2/4, photograph 1 then the problem would remain (Pigram t 699.5). 259 Some of the experts gave evidence that permanent patching would have been a better method of repair. The extent of the repair needs to be determined and clearly marked out on the road pavement. Marking out will have regard to the extent of the failed areas and their proximity to sound pavement. All failed loose or unsuitable materials should be excavated back to a position where sound material is encountered. Patching is ideally carried out using square or rectangular sections with the edges of these sections running parallel to the traffic flow, ie., permanent patching. Permanent patching costs has been estimated by the experts to be between 3 to 10 times as much as a temporary patch. In this regard I accept Mr Pigram's evidence that the costs is 5 to 1. 260 Mr Browne said to achieve adequate edge repairs, which seems to be one of the principal problems so far as Quorrobolong Road is concerned, the pavement would ideally be saw cut, excavated to the full depth of the pavement and the subsequent excavation filled with an asphaltic concrete on bituminous premix and compacted in layers as would be appropriate. The finished surface should blend with the sound and existing pavement, at no time should "feathering out" be permitted and the integrity of the repairs should be maintained for the full depth of the pavement. Mr Brown acknowledged that this repair would be three times the costs of temporary patching, but would only have to be done once. Compaction should be achieved by the use of a small roller or a plate vibrator but nowhere in the photographs which he had seen was there any indication that the patching had been compacted by anything other that the back of a shovel or the tyres of the maintenance truck. 261 According to Mr Milner it is a waste of resources to resurface or reseal a road unless proper drainage is constructed and the costs of drainage is not prohibitive. Clearing the trees is a very minor preliminary part of the cost of road construction. He considered that emergency repairs, ie., temporary patching are for emergencies and are not costs effective. Temporary repairs are meant to be temporary. According to Mr Pigram, temporary repairs should be in place for a maximum period of 6 months and then permanent repairs should be made. However, whether this can be done depends upon whether there are sufficient funds. If Mr Milner had $41,000 available in relation to this road for a reseal he would prefer to get the drainage done rather than the reseal. (t 478.55). Likewise Mr Smith said that the road needed maintenance in 1993 and the shoulder needed to be regraded, some slashing and clearing needed to occur and if the council had some extra money and if it was cost effective he would have resealed the road. 262 As previously stated the defective drainage caused the potholes to reappear and the edges of the road to break away so that they need regular repair. The repairs lasted for only a very short time, sometimes only a few days. Funding criteria used by Cessnock Council in the maintenance and repair of roads 263 The second defendant submitted that having regard to budgeting constraints, the use of temporary rather than permanent patches on various parts of the rural road network including Quorrobolong Road was a reasonable decision that of itself did not involve misfeasance. The principle in Buckle is not disputed. The evidentiary onus is on the Council to show that there were exculpatory economic circumstances that it might adopt as a shield. The plaintiff submitted that there is a distinction to be drawn between the negligent omission to use a statutory power as opposed to the negligent conduct in the exercise of such power - nonfeasance as opposed to misfeasance. It is the plaintiff's submission that budgetary considerations are relevant to the issue of nonfeasance only. The parties referred to Pyrenees Shire Council v Day (1998) 72 ALJR 152 at 185; 192 CLR 330 at 393; Cekan v Haines (1990) 21 NSWLR 296; Northern Sandblasting Pty Limited v Harris (1996-97) 188 CLR 313; Romeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263 at 301, 304 and Stoving v Wise (1996) AC 923. 264 The origin of the relevance of economic factors in determining the existence and extent of a duty of care imposed on a road authority were identified in Buckle by Dixon J at 281. This passage was quoted earlier in this judgment. Recently the Court of Appeal in McLenaghan identified the basic problem lying behind the rule in Buckle. It is that the extensive use of motor transport generates a need for good roads and highways and an expectation that they will be provided. This expectation translates itself into a tendency on the part of courts to think that liability for damage caused by defective roads and highways should be borne by highway authorities. Yet in many cases defects in roads and highways are the result of insufficient funding being available to the highway authorities. 265 In Cekan, the Court of Appeal stated that it was appropriate to take into account economic costs when determining what reasonable conduct on the part of State authorities was required when a prisoner is in custody. The appellant was an alcoholic and suffered injuries while in custody at a police station. In Purcell at 288-290, Mahoney AP said that if there was to be a change in the Buckle approach to take into account allocation or re-allocation of resource, there would need to be a change in the law and it is not for the court to attempt to make such a change (pp 289-290). Meagher JA found the special factor that the Road Traffic Authority was not sufficiently financially affluent to detect a broken stump and repair a surprising one and referred to the lack of evidence of the RTA's budget and expenditure (p 295). Handley JA adopted the views of Meagher JA on this issue. 266 In Romeo Kirby J approved the approach in Cekan. His Honour stated at 301: "As to the expense of taking alleviating action, it is increasingly recognised that courts must 'bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for' bodies accorded that function by law. Demanding the expenditure of resources in one area (such as the fencing of promontories in natural reserves) necessarily diverts resources from other areas of equal or possibly greater priority. Whilst this consideration does not expel the courts from the evaluation of what reasonableness requires in a particular case, it is undoubtedly a factor to be taken into account in making judgments which affect the operational priorities of a public authority and justify a finding that their priorities were wrong. I leave aside, but shall return to, the extent to which 'true policy' decisions of a public authority are justiciable. But even in so-called operational decisions, which are subject to court assessment, it is necessary to evaluate more than simply the cost of preventing the particular accident. Inherent in the suggestion of the obligation of prevention is the cost that would be incurred in the measures necessary to prevent all equivalent accidents of a like kind and risk" 267 And again, at 304 Kirby J noted that the courts have: "... accepted the budgetary, political and other constraints within which such authorities must operate are factors to be taken into account in determining the scope of the duty of care and whether, in a particular case, it has been breached." 268 However, these statements did not form part of the majority reasoning in Romeo. 269 In Northern Sandblasting, Kirby J at 386 returned to the subject of economic costs. His Honour stated: "Because of the paucity of materials with which courts in Australia typically decide issues of this kind the evaluation of suggested considerations of principle and policy and the estimation of economic costs can only be attempted in a very general and imprecise way. Yet where these considerations loom large, they will often present a warning to the judiciary that it has reached the limits of its function to develop the law. Judges must then accord the legislature the first opportunity to address the problem. Otherwise, a tragic case may lead the court into premature action or a distortion of legal doctrine which is impermissible." 270 In Pyrenees Gummow J at 186 citing Lord Hoffman in Stovin at 958: "Nevertheless the standard of care imposed upon the Crown may not be the same as that owed by an individual. An individual is expected to maintain his or her sidewalk or driveway reasonably while a government agency such as the respondent may be responsible for the maintenance of hundreds of miles of highway. The frequency and the nature of inspection required of the individual may well be different from that required of the Crown. In each case the frequency and method must be reasonable in the light of all of the surrounding circumstances. The governmental agency should be entitled to demonstrate that balanced against the nature and quantity of the risk involved, its system of inspection was reasonable in the light of all the circumstances including budgetary limits, the personnel and equipment available to it and that it had met the standard duty of care imposed upon it ...." 271 Thus, from the passages quoted above I will take economic factors into account when determining whether or not the Council acted reasonably. 272 In the document entitled "Comparative Information on NSW Local Government Councils" of 1991 classed Cessnock as a category 2.2 council. Information is broken up into numerous headings and in each column is set out per head how much is spent on that service that the council provides. It includes things such as public economic services, health services, education and community services, garbage services and the like. It also calculates an amount for road-ancillary services per head. In 1991 Cessnock council spent $282.90 per head where the category average was $190.90. In 1992 Cessnock Council expended $293.10 on roads and ancillary facilities per head where as the category average was $178.60. Mr Browne thought that these figures were not comparable as some of these councils had urban and some had both urban and rural roads for which the Shire council was responsible and so it is not appropriate to draw any conclusions from these figures. If these figures are comparable, and I am not satisfied that they are, Cessnock Council spent above the category average on road and ancillary services per head. It is not necessarily the percentage allocation of funds to roads by the Council that is important, but rather whether these fund were spent reasonably. 273 Until 1984 the Council had no recorded system to prioritise the maintenance of repairs and reconstructions of roads. It was in 1984 the Council established a comprehensive program comprising objectives, policies and priorities for its construction and preventive maintenance activities. As its care objective was to minimise reactive maintenance such as pot hole patching, a graded set of programs were introduced; the first one being resealing urban and rural, the second rehabilitation rural and urban, the third reconstruction (to keep heavy traffic out of residential areas and off light duty streets) and four, collect rates for construction of local sub-arterial roads. It was essential that the rural resealing program be accelerated. There was a visionary goal set out in the 1984 policy statement that there be a regular 7 year resealing cycle for all council roads. This report noted that it was not going to be achieved in the immediate future. 274 Mr Robert Gallagher who is currently the chief accountant employed by the Council of the City of Greater Cessnock, and has been in that employment since 1993, stated that the Council receives income from three main sources. They are rates, government grants, developer contributions and normal fees and charges such as fees received from swimming pools. The rates from Cessnock council made up 50% of its income, government grants made up about 30% and developer contributions and other fees and charges about 10 to 15% in any given year. Government grants could be either tied grants or untied grants. Untied grants were available to the council for the purpose of maintenance of rural and local roads. He described the process by which a budget was adopted each year. 275 The amounts spent on roads and ancillary expenditure for the years of 1989 to 1992 (inclusive) are as follows: Calendar Year Roads & Ancillary Total Expenditure % Expenditure ___________________________________________________________________________ Ex D2/16 f.13 1989 $10,515m $20,610 51% Ex D2/16 f.13 1990 $10,844m $21,662 50% Ex D2/16 f.31 1991 $12,674m $24,200 52% Ex D2/16 f.44 1992 $12,915m $24,979 52% 276 In 1992 the Council provided the amount of $648,000 for routine maintenance of rural road networks. By March 1992 the repair budget was excessively overspent. At the time Mr Pigram proposed that after the $48,000 was spent and the rural road are brought up to trafficable condition, in order to bring expenditure back into line, the work of patching sealed roads was stopped. He pointed out that if this option was adopted, this may cause the roads to deteriorate to an unsafe condition which will increase Council's liability and open Council insurance claims which may not easily be defended in court. Mr Pigram recommended that the patching of rural roads be kept to a minimum standard that is safe and trafficable and that the funding for rural patching be reviewed in June. This recommendation was adopted by C Robinson the City Engineer in his report to the Town Clerk on 23 March 1992. In 1993 the Council allocated an amount of $310,000 for rural reseal and $127,500 for rural rehabilitation. In July 1994, the Council's engineering quality manager's reported that the edges of Quorrobolong Road were fretting away and required constant patching and that the bitumen paving surface was also extensively patched. 277 The criteria used by the council to determine a permanent patch as opposed to a temporary patch involved considerations of the size of the area, the traffic volume and the importance of that road being used eg., if the road was one of the main arteries to town. 278 Permanent patching was carried out by a team of six men who would use a saw to cut the patch out of the road so that there was an edge to work with. The loose material would be removed out of that hole and an examination would be made of the gravel pavement underneath. The gravel pavement would be replaced if it had failed or was not satisfactory. The gravel would then be compacted back into the hole and then the road would be resurfaced with hot mix material (t 669.25). The minimum area for a permanent patch would be one and a half metres wide by four to five metres long in a rectangular shape. Permanent patching would be used where there was several potholes or edge breaks in close proximity. Time constraints were also a factor. The crew would carry out a temporary patch in five minutes whereas a permanent patch would take half a day. A crew could perform forty or so temporary patches in the time that it would take to complete a permanent patch. 279 Mr Pigram said that based on a budgetary amount of money he had available he would only have got to less than 5% of the edge break and pothole failures if he had used the permanent patch method. That is why temporary patches were carried out. Mr Pigram acknowledged that on each re-attendance there is a cost involved and ideally it would be better to carry out repairs by way of permanent patching, and costs wise in the long run, it could be a lot cheaper. By long term he was talking about 15 to 20 years. Mr Milner in cross examination agreed that the approach taken by the council was a reasonable thing to do in those circumstances. 280 Resealing entails the resurfacing of the road with hot bitumen. The council would normally carry this out by way of contract and this would entail a team of eight to ten men with spraying equipment and trucks to do this work. This costs considerably more than temporary or permanent patching. There are two different methods of resurfacing used by the council. One was asphaltic concrete often called bituminous concrete which is a hot mix material made up of hot bitumen and stones. This is put onto the road by machines which smooth it across the road and this ends up with a very smooth surface. This method is very expensive. It is in the order of ten times the costs of bitumen sealing. Rubber bitumen sealing is a process of adding either synthetic or natural rubber to bitumen and spraying the bitumen on the road and covering it with stones. Drain work was carried out in conjunction with resealing work. Drainage work was carried out by a totally different group of men. Understandably rehabilitation (a total replacement of the road) was not considered to be economically justified by any of the experts. 281 A report dated 26 July 1994 of the director of works (Report No 33/1994) stated that Council at the Works Committee meeting on 6th July, 1994 resolved to include the section of Quorrobolong Road between Racecourse Road and Mountain View Place in the 1994/95 Rural Reseal Program. The estimate to carry out this work has been revised to allow for the additional work at the accident corner near Racecourse Road. It is proposed that the section from Mountain View Place to Stanford Street, Kitchener, should also be completed at the same time. The estimated cost for this project is a total of $90,300. 282 Professor Yandell said that the Council had on optimising maintenance program in place since 1990 and this system prioritised rehabilitation and maintenance. High volume and roads on difficult sites have higher priority. He said that the management system ensured that maintenance funds are applied in an optimum way to maximise overall benefit. This means that low volume roads will attract fewer funds than high volume roads. Quorrobolong Road is a low volume rural road. It is his view that Mr Browne's contention that the edge break repair should involve deep patching was too expensive for this road. 283 However, against this view Mr Gallagher agreed that if the Council had wanted to get $10,000 or $20,000, they could have done so easily. (t 767.45). Mr Pigram, the council engineer also agreed that there would have been ample opportunity after 1950 and after 1970 to 1993 to fix up the drainage but that it had not been done. Mr Milner has expressed the view that the funding limitations did not prevent the Council from performing the necessary road work to the required standard within a short time. In evidence he also referred to the halcyon time for road in the 1980's where money was made available for roads under the red scheme. The Council did reseal Quorrobolong Road which included the accident site in September to December 1994. 284 The program of prioritising road works came into existence in 1984. In about 1970 Quorrobolong Road was resealed but no work was done in respect of the drainage. Since that time, temporary repairs to the road have been carried out on a regular basis despite the worsening condition of the road. Permanent patching costs five times as much as temporary patching and takes longer. The temporary patch did not restore the sub-base. At some point of time within the 23 year period it would have been a better use of resources to fix the drainage and carry out permanent patching or reseal the road. If permanent patching and drainage were done, the edges of the road would have been at least as good as any other part of the pavement surface and would not need continuous repair. If a reseal was carried out (which includes drainage work) the road would not need continued repairs. There may have been more money available for Council to use on roadworks in the 1980's. Accordingly, the Council's funding from the 1970's to 1993 did not mean that Quorrobolong Road could not have been maintained by means of drainage works, permanent patching or reseal. It is my view, taking into account economic factors the Council did not act reasonably in carrying out maintenance by means of temporary patching, pothole repair and edge break repairs of Quorrobolong Road at the accident site, when it knew that the condition of the road was worsening and the temporary repairs did not last very long, sometimes only a few days. Causation 285 The plaintiff submitted that had the road been properly constructed and repaired the final fracture of the head stem to his bicycle would not have occurred. It was the travelling of his bicycle over the rough edges constituted by potholes, edge breaks and patches on the edge of the bitumen surface which caused the handlebar assembly to come free and the consequent loss of steering and the crash. According to the plaintiff, although the fatigue fracture had progressed to a certain stage the final fracture was only likely to occur because the road had not been properly constructed and maintained. 286 On the other hand the second defendant submitted that only a minor load was required to initiate the final overload fracture. According to the second defendant, it was likely that the accident would have occurred in any event because the plaintiff's bicycle would have inevitably encountered loads even if there had been adequate drainage and proper repairs to the road. On this issue three expert witnesses gave evidence and wrote reports, namely, Dr Keith Thompson a metallurgical consultant at Unisearch Limited, Mr Alan Robinson, a metallurgical engineer and Mr Hillbrick, a manufacturer of bicycle frames used by the Australian Olympic and AIS teams. 287 The bicycle the plaintiff used was 8 to 10 years old. He bought the custom made frame and head fittings from Europa Cycles at Kingsford. The handlebars and head stem were bought together from a shop at either Cessnock or Kingsford. He thought that the head fittings were already fitted when he collected the new frame. The bicycle had a variety of brand name parts on it and is known as a "bitza". According to Mr Hillbrick, there is nothing wrong with a "bitza" provided the parts are adjusted properly. Adjustment of the head stem of the bicycle and filing of the handlebar stem 288 The plaintiff said that he last altered the height of the head stem about 3 to 6 months prior to the accident. He said that he did not touch it that much. However, the plaintiff does not know where the position of adjustment of the head stem was the day of the accident. 289 When the plaintiff made a height adjustment to the head stem he put tape around it. The plaintiff was unaware that the threaded section of the fork tube was weaker than the non-threaded section of the fork tube. The expert evidence is that the threaded section of the head stem tube is less strong than the non-threaded section. However the plaintiff appreciated that for reasons of safety there are maximum and minimum distances indicated on the head stem. 290 There is a marking on the head stem which says: 22.2 M A X Italy 291 The above line is horizontal and indented and there is a black tape line appearing horizontally on the head stem which is 10 to 15 mm above the indented circular horizontal mark. This indicates that the handlebar adjustment has been set higher than the recommended maximum. This higher position has the effect of raising the head stem by 10 to 15 mm up the stem tube into the threaded area (t 293). Notwithstanding the plaintiff's denial, I accept that the plaintiff has adjusted the handlebar adjustment to a level higher than the recommended maximum and that it had been in this position for at least three to six months. 292 The plaintiff denied that he had ever filed down the head stem. Dr Keith Thompson noticed some shallow superficial abrasion marks between the top of the handlebar stem down the stem towards the bolt hole end to the black circumferential mark. They did not look rotational. It was difficult to say how they were produced (t 295.10-40). Mr Hillbrick observed that the head stem had been filed down. He noticed some scuffing on the surface which he recognised as filing as distinct from damage which occurred through wear and tear. He also observed some teeth marks at about 60-70 mm from the end of the head stem which he said were consistent with placing the head stem in a vice. He thought that the head stem was filed down as a quick fix. Its purpose was to allow the head stem to fit into the fork steerer (t 408.45-409.42). I prefer the evidence of Dr Thompson and Mr Hillbrick to that of the plaintiff and find that the plaintiff had superficially filed the lower part of the handlebar stem as described by Dr Thompson. 293 Prior to the accident the plaintiff was unaware that the head stem suffered from metal fatigue. (t 111). The fine nature of the fatigue cracks and their location meant that they were not detectable by visual inspection of the unaided eye, nor would they have been noticeable during the normal use of the bicycle. The material used in the manufacture of the head stem was acceptable commercial quality. (see report of Dr Thompson). 294 Mr Thompson inspected the bicycle and examined the top portion of the head stem tube which had broken off from the head stem tube. The broken portion was threaded (Ex J). He examined the tube with a low power optical microscope and a scanning electro-microscope. There are arrows showing several sites of fatigue crack initiation at the trough of the bottom of the thread. Figure 7 295 Figure 7 of Ex X (reproduced above) shows ratchet marks at the trough of the bottom of the thread marked by the letter "T". There are two large arrows which show the presence of macroscopic arrest marks situated just prior to the onset of the final rapid overload (O). These two large arrows show beach marks which go around the circumference of Ex J. 296 Dr Thompson concluded that: "(i) Separation of the handlebars from the bicycle had occurred due to the initiation and propagation of several fatigue cracks in the head stem tube. (ii) The fatigue cracks were initiated at the trough of the bottom thread and their progressive growth towards the tube bore resulted eventually in instantaneous overload fracture of the remaining cross section thickness of the tube wall. (iii) At the time of the accident the stem tube contained several discrete pre-existing fatigue cracks some of which had extended to a depth of up to 50% of the wall thickness." 297 Mr Robinson, a metallurgic engineer substantially agreed with the above 50% view expressed by Dr Thompson except he qualified that the fatigue cracks were in two positions, not all around the circumference. Mr Robinson expressed the view that the depth of insertion of the stem tube into the fork tube was a very significant factor in the fatigue fracture. According to Mr Robinson, if the head stem had been properly adjusted there would be possibly zero chance of a fatigue fracture occurring. 298 So Dr Thompson found step fractures which were consistent with going over bumps but he could not estimate the time frame in which this occurred. Both Mr Robinson and Dr Thompson conceded that the continued usage of the bicycle on the road surface with bumps and lumps with the head stem in its present position meant that there would be a continuing progression of the fatigue fracture (t 277 and 515.55) resulting in a complete failure. However, as there was very minimal force required to cause a final fracture, the bicycle coming into contact with rough road edges would have been a sufficient shock load to produce the final fracture (t 519). He agreed that it was possible that the final fracture occurred when the plaintiff hit the potholes and the rough edge of the road (t 528). 299 It is Dr Thompson's view that the fracture fatigue cracking of 50% has occurred prior to the bike starting out on its last journey (t 286.35). It is his opinion that the two single overloads were produced at the time of the accident (t 286.55) and that the fracture graphic evidence was consistent with the scenario of the bicycle travelling at 25 miles per hour. A very minor force would not have caused the final rapid overload fracture, but it was possible that the final rapid overload fracture could have occurred if the bicycle had been travelling along a smooth road at 25 miles per hour. 300 In re-examination Dr Thompson was asked: "Q. You then gave some evidence to say that if that had been the case, you would expect to have found something about the pre-existing fatigue cracks? A. Yes, I would have expected if the bicycle had been used in that condition with the 50 per cent fatigue crack and then the two sub-critical overload impositions - if the bicycle had been used for a few hours or for a period of time and received a sufficient number of cycles of stress or load, then I would expect to have seen evidence of fatigue cracking similar to what accounted for 50 per cent of the cross-sectional area reduction. Q. Did you see that? A. No, I didn't. Q. Are you able to make upon the balance of probabilities a deduction from your failure to see that? A. My failure to see that, having known that the bicycle had been in use that morning, sways my balance of probability to the fact that the two sub-critical over load impositions were not there prior to the final overload. They would have occurred at a similar time as the final over load fracture." 301 Mr Robinson a metallurgic engineer in his report dated 4 September 1994 (Ex D1 "7") at p 6 agreed that the force that induced the latter final fracture may well have been a shock load, eg., generated by the front wheel dropping off the shoulder of the road, or it may have been generated by a light impact with an obstacle such as a rock, or a tree. 302 Mr Robinson said in evidence that what he meant by the above in respect of a rock or a tree was a small rock on the road surface and the bicycle running over that or a branch that had dropped onto the road (t 516.25). 303 Mr Hillbrick said that he could not say when the threaded area of the forks actually snapped off. He suggested that the possible cause of the forks being broken at the bottom of the threaded area could have been firstly, the over-raising of the height of the head stem past the minimum insertion mark; or secondly, that the diameter of the fork steerer had been filed because of over tightening of the head stem plunger bolt and there is a swollen area at the bottom of the thread. Of these possibilities it is Mr Hillbrick's view that the over tightening of the stem caused the swelling of the fork steerer and this would have played a large part in the breakage of the forks which resulted in the plaintiff's injuries. Mr Hillbrick thought that if the plaintiff went into potholes and then onto the rough edge of the road and bounced a couple more times this could have contributed to the breakage of the head stem tube. I prefer the evidence of Drs Thompson and Robinson. 304 It is my view that to cause the final fracture there needed to be two single overloads and a final overload fracture and it was more probable than not that these overloads occurred when the plaintiff's bicycle hit the potholes and the rough edge of the western side of the road. The plaintiff's bicycle hitting uneven potholes and the rough edge of the road caused the final fatigue fracture in the head stem and the consequence was that the plaintiff lost control of the steering mechanism of the bicycle, and fell suffering spinal injuries which resulted in quadriplegia. 305 In summary the Council had a duty of care to road users which included cyclists. The Council breached that duty of care and is liable in misfeasance. The nature of the repairs caused the head stem of the plaintiff's bicycle to fail. The plaintiff lost control of the bicycle and fell. There is no dispute that as a result of this fall the plaintiff was rendered a quadriplegic. There will be a verdict and judgment for the plaintiff against the second defendant. 306 I turn to consider whether the plaintiff's damages should be reduced for contributory negligence. Contributory negligence 307 In considering the question of apportionment the court is required to reduce the damages recoverable "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". The inquiry is not concerned with the cause of the accident but with the cause of damage - see Froom v Butcher [1976] QB 286 at 292-293. Contributory negligence is measured by the failure of the plaintiff to take reasonable care for his own safety - see Gunning v Fellows (1997) 25 MVR 97 at 99. It is the degree of departure from the standard of care of the reasonable man, - see Pennington v Norris (1956) 96 CLR 10 at 16. Therefore it is an objective test and not subjective but as applied to someone such as the plaintiff. The standard of care is to be measured against that of ordinary prudence - Sungravure Pty Limited v Meani (1964) 110 CLR 24 at 36. 308 There are four grounds upon which the second defendant alleges that the plaintiff failed to take reasonable care for his safety which resulted in injury. They are firstly, failing to ensure (through inquiries with qualified persons or otherwise) that his building and adjustment of pieces in his "bitza" road racing bike was suitable and safe; secondly, adjusting the head stem contrary to markings, particularly the max mark, resulting in the head stem being supported by only the threads of the fork; thirdly, riding at a speed of 25 mph on a road which he knew was narrow, bumpy and full of patches and potholes; and fourthly, not looking or concentrating where he was going, thereby resulting in running into potholes in the road. 309 There is evidence to suggest that there is nothing wrong with building a bitza bicycle. The plaintiff was not obliged to make enquires with qualified persons. He had been riding bikes for many years and was experience in assembling the various components. However the plaintiff should have taken more care when adjusting the head stem to ensure that he did not adjust the head stem above the maximum marking as this added stress to the weaker part of the head stem causing the crack to accelerate. It is my view that the plaintiff was entitled to ride his bicycle at a speed of 25 miles per hour on this narrow road provided he kept away from the potholes, patches and edge breaks at the outer edge of the sealed roadway. The plaintiff, for reasons other than the presence of a motor vehicle, lost concentration when he allowed the steering of the bicycle to put him into the potholes and rough edge of the road. I apportion contributory negligence at 20%. 310 The plaintiff has failed in his claim against the first defendant. There is a verdict and judgment for the plaintiff against the second defendant in the sum of $2.8 million less 20% which amounts to $2,240,000. The cross claims are dismissed. Costs are discretionary. Costs should follow the event. The second defendant is to pay the plaintiff's costs. The plaintiff is to pay the first defendant's costs. Judgment (1) There will be a verdict and judgment for the plaintiff against the second defendant in the sum of $2,240,000. (2) The cross claims are dismissed. (3) The second defendant is to pay the plaintiff's costs as agreed or assessed. (4) Except for order (3), costs are reserved. The parties have liberty to apply to hear argument on this issue. ********** Last Modified: 11/10/2000 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.