Fell v Blue Mountains City Council [2003] NSWSC 17

New South Wales Supreme Court

CITATION : Fell v Blue Mountains City Council [2003] NSWSC 17 HEARING DATE(S) : 16-18 December 2002 JUDGMENT DATE : 5 February 2003 JURISDICTION: Common Law Division JUDGMENT OF : Studdert J DECISION : See paras 126-127.

CATCHWORDS : Personal injury claim - action by injured motorcyclist - claim against council conducting road works - whether breach of duty by defendant - if so, whether contributory negligence. LEGISLATION CITED : Motor Accidents Act Brodie & Anor v Singleton Shire Council (2001) 206 CLR 512 CASES CITED : TNT Management v Brooks (1979) 23 ALR 345 West v Government Insurance Office (1981) 35 ALR 437 Bitupave Limited v Bollington (1998) 28 MVR 223 PARTIES : Bruce Michael Fell (Plaintiff) Blue Mountains City Council (Defendant) FILE NUMBER(S) : SC 20530/01 COUNSEL : J. Glissan QC/J. de Berg (Plaintiff) M. Bozic SC/G. Grogin (Defendant) SOLICITORS : Astley Thompson Cox (Plaintiff) Phillips Fox (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Wednesday 5 February 2003

20530/01 BRUCE MICHAEL FELL v BLUE MOUNTAINS CITY COUNCIL

JUDGMENT 1 HIS HONOUR: Bruce Michael Fell has brought these proceedings against Blue Mountains City Council seeking to recover damages in respect of injuries suffered in an accident in February 1999. The defendant has denied negligence and has also raised the defence of contributory negligence. 2 The accident occurred at approximately 10.30 pm on Thursday 11 February 1999 in Railway Parade, Warrimoo. Whilst the evidence is not entirely consistent as to compass points, counsel agreed at the outset that for convenience Railway Parade was to be regarded as running east-west, and I adopt that for the purposes of this judgment. 3 Railway Parade is described as a two-lane, semi-rural collector road, and for a motorist travelling east it runs beside the railway line to the immediate north of that line. The Great Western Highway runs beside the railway line to the immediate south of the line. 4 The plaintiff has no recollection of the accident, having suffered a head injury, and no witness was called to give direct evidence as to how the accident happened. However, Constable Comber attended the scene shortly after the accident and through him a number of police photos were introduced into evidence (Exhibit B). On arrival at the scene Constable Comber saw the plaintiff lying on the roadway near his motorcycle and he also observed a small white station sedan beside the road facing west, with some skid marks behind it. There was damage to the station sedan and to the motorbike evidencing their collision, and the objective evidence placed the plaintiff's motorbike on its incorrect side of the road at the point of the collision. No occupant of the station sedan was called to give evidence and the evidence did not identify who had been travelling in it. 5 At the time of this accident work was being done in Railway Parade, and the defendant admitted on the pleading that it was the relevant roadway authority for that road. The hearing proceeded upon the basis that there was no issue but that the defendant was responsible for the work being done. This involved kerbing and gutter work on the northern side of the road and the construction of a footpath there. On the southern side of the road there was drainage work in progress. It is the plaintiff's case that there were features of the roadway and of the work in progress which created a danger in respect of which the defendant ought to have given, but failed to give, to the plaintiff due warning, consistently with the discharge of the defendant's duty of care as recognised in Brodie & Anor v Singleton Shire Council (2001) 206 CLR 512 at 580. It was claimed that the combination of these features of the roadway and of the work being done caused the plaintiff's accident. 6 Fred Schnerring is a civil engineer whose expertise includes the principles of roadwork construction and traffic engineering, as well as accident investigation. I am satisfied that Mr Schnerring has expertise relevant to the evidence he gave and I was generally impressed by his evidence. 7 Mr Schnerring attended the accident site on 19 April 1999. In his report dated 28 April 1999 (part of Exhibit M) he described the road for eastbound traffic leading up to the accident as "slightly undulating and winding. The road commenced curving left about 75 to 80 metres before the approximate impact point. The curve radius tightened significantly about 30 metres before the approximate impact point. A steep downgrade of about nine percent started about 35 to 40 metres before the approximate point of impact.