New South Wales Court of Appeal CITATION : Cessnock City Council v Suvaal [2001] NSWCA 428 FILE NUMBER(S) : CA 40945/00 HEARING DATE(S) : 22 October 2001 JUDGMENT DATE : 5 December 2001 PARTIES : Cessnock City Council - Appellant Anthony Peter Suvaal - Respondent JUDGMENT OF : Powell JA at 1; Giles JA at 2; Rolfe AJA at 23 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT 20668/94 FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER : COUNSEL : D F Rofe QC & M J Lawler - Appellant T F Bathurst QC, D R Conti, C Mirales - Respondent SOLICITORS : Moray & Agnew - Appellant McClellands - Respondent CATCHWORDS : NEGLIGENCE - bicycle accident - claim against council because of potholes in road - whether loss of steering control because hit potholes or hit potholes because of loss of steering control - on facts, the former not established - claim fails. ND. CASES CITED: Holloway v McFeeters (1956) 94 CLR 470. DECISION : (1) Appeal allowed. (2) Set aside the verdict and judgment for the plaintiff against the second defendant and in lieu thereof verdict and judgment for the second defendant. (3) Set aside order 3 made by the Master on 10 November 2000, order 1 made by the Master on 20 November 2000 so far as it was ordered that the second defendant pay half the first defendant's costs and order 8 made by the Master on 20 November 2000 and in lieu thereof order that the plaintiff pay the second defendant's costs. (4) Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if qualified. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40945/00 SC 20668/94 POWELL JA GILES JA ROLFE AJA Wednesday 5 December 2001 CESSNOCK CITY COUNCIL v SUVAAL Judgment 1 POWELL JA: I have read in draft the Judgment which has been prepared by Giles JA. I agree with the orders which his Honour proposes for the disposition of the appeal and with his reasons for so doing. 2 GILES JA: The respondent, Mr Anthony Suvaal, was seriously injured in a fall from his bicycle when riding along Quorrobolong Road between Heaton and Cessnock. He sued the Nominal Defendant, alleging that the accident was caused by the negligence of the driver of an unidentified motor vehicle; he also sued in the alternative the appellant, Cessnock City Council, alleging that the accident was caused by its negligence in the design, construction, maintenance and repair of Quorrobolong Road. His claim was heard by Master Harrison. Damages were agreed, being $2,350,000 as against the Nominal Defendant and $2,800,000 as against the appellant, and the hearing was concerned only with liability. The Master held in favour of the Nominal Defendant but against the appellant. 3 The grounds of appeal were broadly concerned with two issues, causation of the accident and negligence of the appellant. The Court first heard the parties on the issue of causation of the accident. It then announced that it proposed to uphold the appeal, but that the formal orders would be made at a later date when the reasons for upholding the appeal were published. These are my reasons for upholding the appeal. The accident 4 The respondent lived in Cessnock. He was an enthusiastic cyclist, having competed professionally in the past, and for many years had ridden his bicycle on a training route from Cessnock to Heaton and return along Quorrobolong Road. Quorrobolong Road was sealed and not greatly trafficked, and although it was pot holed and broken at the edges the respondent kept about two feet in from the left hand side of the sealed roadway and considered that that course provided safe cycling. He treated part of the route as a speed section, over which he rode at about 25 mph. 5 The immediate cause of the respondent's fall from his bicycle was loss of steering control when, as he was riding the speed section, the head stem linking the handlebars of the bicycle with the front wheel assembly fractured. Without steering control, the respondent went off the road and was thrown over the handlebars. The respondent had adjusted the head stem to a level higher than the recommended maximum and had superficially filed its lower part, whereby there was exposed to fatigue fracture the weaker threaded section of the head stem tube. Fatigue fracture had developed over time, to the extent that before the accident there were fatigue cracks to a depth of up to 50 per cent of the wall thickness. A final overload fracture brought the loss of steering control. The respondent's case 6 On the respondent's case, the final overload fracture was brought about when, as he rode the speed section, he was forced by a motor vehicle to diverge from his course about two feet in from the left hand side of the sealed roadway. The respondent said that the motor vehicle brushed up against or hit his right leg, and possibly hit his right hand or the handlebar of the bicycle, and that although the blow was not hard it was strong enough to force him into potholes at the edge of the sealed roadway. He said that he bounced in the potholes, the handlebars of the bike turned through about 90 degrees, and steering control was lost. On his case, the potholes provided the final overload and caused the fracture. The claim against the appellant, then, was that its negligence permitted the potholes, and so the accident was in law attributable to its negligence. 7 Whether there was a motor vehicle and whether, if there was, the motor vehicle played a part in what occurred, were in issue at the trial. The respondent was adamant in his evidence that there had been a motor vehicle which forced him to the left and off the road, and said that he was sure that he did not alter his steering direction but that the motor vehicle forced the steering direction to be altered so that he went into the potholes. After a full consideration of the evidence, the Master found that the motor vehicle did not brush against or hit the respondent and 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". Because of this finding, she held in favour of the Nominal Defendant. 8 This was a substantial rejection of the respondent's case, and while not regarding the respondent as deliberately untruthful the Master said that his evidence was to be examined with caution. If a motor vehicle was not involved, forcing the respondent into the potholes, why did the respondent diverge from his course about two feet in from the left hand side of the roadway? The respondent in his evidence refused to countenance that a motor vehicle was not involved, and on his account the divergence and so the final overload were due and due only to the motor vehicle. If that were not so, was the divergence due to loss of steering control from final overload before the respondent went into the potholes? The Master's conclusion 9 The Master found that the respondent "caused" his bicycle to go into the potholes, saying that the respondent "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". On this finding, the order of events was divergence due to lapse in concentration, going into the potholes, and then loss of steering control from the fracture of the head stem. 10 This was quite contrary to the respondent's evidence. He was sure that he did not alter his steering direction, and that the motor vehicle forced the steering direction to be altered whereby he went into the potholes. There was no foundation in the evidence for the Master's finding of lapse in concentration. With respect, the Master's conclusion was a rationalisation of what occurred, without due consideration of whether the loss of steering control was from final overload before the respondent went into the potholes. Prior loss of steering control? 11 The appellant submitted that, if a motor vehicle was not involved and the respondent did not alter his steering direction, the more probable explanation for the respondent going into the potholes was that the final fracture of the head stem occurred as the respondent was following his safe course along the roadway, thus steering control was lost, and going into the potholes and all that followed was due to the prior loss of steering control. If so, it said, the accident was not attributable to any negligence on its part. 12 Could the final fracture have occurred as the respondent was following his safe course along the roadway? Quorrobolong Road was not a smooth road, and the respondent was riding fast at about 25 miles per hour. Both Dr Thompson, a metallurgist called for the respondent, and Mr Robinson, a metallurgist called for the Nominal Defendant, said that the final overload fracture could have been caused by the loads generated by encountering potholes, but that it could also have been caused by the loads arising from normal riding on the roadway. Mr Robinson said, for example, that the final overload fracture could have been caused by a light impact such as running over a small rock or a branch on the surface of the roadway. Dr Thompson expressed a view, based on sub-critical fractures visible on microscopic examination of the head stem tube, that the sub-critical overloads probably occurred at a similar time to the final overload fracture, which the respondent said was consistent with rapid sequential loads from encountering potholes. Dr Thompson's evidence, however, did not rise above consistency, and could not do so. The Master accepted the evidence of Dr Thompson and Mr Robinson. In my view this included acceptance that the final overload fracture could have been caused by the loads arising from normal riding on the roadway, 13 If the respondent's account of the involvement of a motor vehicle is not accepted, therefore, the final overload fracture and loss of steering control could have been before the respondent went into the potholes, with going into the potholes and all that followed being due to the prior loss of steering control. It was necessary for the respondent to establish, on the balance of probabilities, that the final overload fracture and loss of steering control was after and because the respondent went into the potholes. Only if that were more probable than not could the accident be attributable to any negligence on the appellant's part. 14 The respondent accepted in the appeal that he could not properly contend that the roadway where he normally followed his safe course was potholed or otherwise so rough as to connote negligence on the appellant's part: hence the importance of the divergence from the safe course into the potholes. He submitted that the Master was entitled to infer that he diverged into the potholes due to lapse in concentration, rather than because of prior loss of steering control. Although his evidence was to be examined with caution, it was said, the respondent was accepted so far as there was an issue over whether he was riding away from Cessnock or towards Cessnock at the time of the accident; there was ample evidence from local residents of potholes and rough edges along Quorrobolong Road, and in particular in the location where the respondent fell from his bicycle; the photographs of the roadway suggested that it was not excessively deteriorated along the safe course; as I have earlier noted; Dr Thompson's evidence in relation to the sub-critical fractures was consistent with rapid sequential loads from encountering potholes; and there was evidence that the respondent had given an account of the accident not involving a motor vehicle in which loss of steering control came only after he went into the potholes. These matters in combination, it was said, sufficed to uphold the Master's conclusion, and with it the probability that loss of steering control was after and because the respondent went into the potholes. 15 To further explain the evidence of the respondent's account last mentioned, Senior Constable Barber said that when he attended the scene of the accident the respondent told him that he (the respondent) was travelling along the road as he always did "when he hit a couple of potholes and the handlebars of the push bike came away and he hit a tree". The Master did not make a direct finding as to what the respondent said to Senior Constable Barber, and did not seem to rely on it for her conclusion. That the respondent said this was not supported by the evidence of others who attended at the scene of the accident. The weight to be attributed to the evidence is negligible, particularly when it stands alone and on the respondent's case must be taken as a truncated version of the account of the accident given by the respondent in his own evidence, with the involvement of the motor vehicle in forcing the respondent into the potholes. 16 I am not persuaded by the respondent's submission, and do not think that the Master's conclusion can stand. Adopting what was said in Holloway v McFeeters (1956) 94 CLR 470 at 480, the circumstances appearing in evidence do not raise a more probable inference in favour of the final overload fracture and loss of steering control being after and because the respondent went into the potholes, and do no more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. The respondent was a highly experienced cyclist, used to riding on Quorrobolong Road at speed and keeping about two feet in from the left hand side of the sealed roadway. Intentional or unintentional divergence into the potholes, which he considered presented a danger, is not likely. In my view the more probable explanation of the accident is that the final overload fracture of the head stem occurred whilst the respondent was riding normally along the roadway, and that his bicycle then diverged into the potholes and there followed his fall from the bicycle. 17 Since writing the foregoing I have had the benefit of reading the further observations of Rolfe AJA in draft. My reasoning is in accord with that of his Honour, and I adopt what he has said. The result 18 The respondent accepted that, if this were so, his claim against the appellant could not succeed. The appeal must be upheld. Costs complications 19 The Master ordered that the appellant pay the respondent's costs of the trial, half the costs of the Nominal Defendant, and some other costs of the respondent and the Nominal Defendant. The respondent accepted that, if the appeal were upheld, it would normally follow that these orders should be set aside and that he should pay the appellant's costs of the trial. 20 That would leave up in the air payment of half the Nominal Defendant's costs. Although it had an interest in the setting aside of the order that the appellant pay half its costs, the Nominal Defendant was not made a respondent in the appeal. 21 Evidence placed before this Court established that the Nominal Defendant was fully informed as to the appeal. It did not file a precautionary cross-appeal in order to seek, in lieu of the order that the appellant pay half its costs, an order that the respondent pay the whole of its costs. Rather, the evidence established that the Nominal Defendant elected not to be involved in the appeal notwithstanding the potential to affect recovery of its costs. A solicitor employed by the Nominal Defendant's solicitor was present as an observer at the hearing of the appeal. That the orders for payment of the Nominal Defendant's costs by the appellant should be set aside was specifically adverted to in discussion. In these circumstances I consider that the orders may properly be set aside notwithstanding that the Nominal Defendant was not made a respondent in the appeal. Orders 22 I propose the following orders – 1. Appeal allowed. 2. Set aside the verdict and judgment for the plaintiff against the second defendant and in lieu thereof verdict and judgment for the second defendant. 3. Set aside order 3 made by the Master on 10 November 2000, order 1 made by the Master on 20 November 2000 so far as it was ordered that the second defendant pay half the first defendant's costs and order 8 made by the Master on 20 November 2000 and in lieu thereof order that the plaintiff pay the second defendant's costs. 4. Respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if qualified. 23 ROLFE AJA: I have had the advantage of reading in draft form the judgment of Giles JA and I agree with his Honour's reasons. 24 However, I would wish to add some further observations. The respondent was born on 13 January 1958 and, accordingly, at the date of his accident was 35 years old. He lived in Cessnock for his whole life and was familiar with the roads around it. He was particularly familiar with Quorrobolong Road on which he had trained as a cyclist for some 15 to 18 years. He was well aware that at the edge of the sealed portion of that road, which adjoined the gravel shoulders, there were potholes and the sealed edge was rough as a consequence of being broken by vehicular traffic. This caused him to ride some 2 feet in on the sealed surface from that edge. He had been following such a course for many years and was doing so immediately before he was injured quite late on the afternoon of 2 February 1993. He considered that if he had been able to maintain that course on that day, he would have continued to ride without any danger from the road surface. 25 On the afternoon of the accident the respondent was riding in a northerly direction along Quorrobolong Road. He reached a point where he started a speed trial and, at the time of the accident, the speed trial was continuing and he was timing himself. In the course of the speed trial, he observed, by looking backwards and under his right armpit, a motor vehicle, which was travelling in the same direction, approaching. He did not deviate from his path and, as Giles JA has explained, his case was that this vehicle brushed or hit him sufficiently hard to force him to the edge of the road. 26 The Master's judgment is not entirely clear as to whether there was no motor vehicle, contrary to what the respondent alleged, or as to whether there was one but it was not involved in any way in causing him to travel to the edge of the road. I think, on a proper reading of her reasons, she probably found there was no motor vehicle. 27 For present purposes it does not seem to matter which finding was made, as the Master acquitted any motor vehicle, assuming one was there, of any "involvement" in the accident and entered judgment for the Nominal Defendant against which decision the respondent has not appealed. 28 I would add that the respondent did not seek to make any case to the effect that seeing the approach of the motor vehicle he moved to his left, i.e. closer to the edge, to allow it to pass, nor that as the motor vehicle passed it caused disturbance in the air, which caused the bicycle to move to the left. His sole case was as his Honour has stated it. 29 Once the motor vehicle was found either not to be there or not to have been involved in the accident, the question which arises is what caused the highly experienced cyclist, fully familiar with the road and aware of the dangers on its sides, to move from the route which provided safety to the area of danger. 30 Giles JA has set out the Master's conclusions on that. However, there was no evidence to support them. As his Honour has stated, they were contrary to the respondent's evidence. His Honour has concluded that once the respondent's account of either the presence or involvement of the motor vehicle was not accepted, the probabilities are that the final overload fracture and loss of steering occurred before the bicycle went into the potholes, and not as a consequence of its having done so. The reference to potholes is to those at the edge of the road. I respectfully agree with his Honour's analysis of the possible conflicting hypotheses. In particular I agree with his Honour's conclusion that intentional or unintentional divergence into the potholes, which the respondent was aware presented a danger, was not likely. In my opinion, it was totally improbable. ___________ 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.