Watt v Copmanhurst Shire Council [2005] NSWSC 7

New South Wales Supreme Court

CITATION : Watt v Copmanhurst Shire Council [2005] NSWSC 7

HEARING DATE(S) : 25 October-4 November, 8-11 November, 15-17 November 2004.

JUDGMENT DATE : 2 February 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Studdert J

DECISION : (1) I find negligence to have been proved. (2) I find contributory negligence to have been proved. (3) Total damages are agreed at $6,500,000. (4) I find it to be just and equitable, having regard to the plaintiff's share in the responsibility for the damage, that the plaintiff's damages should be reduced by one-third. (5) Accordingly, (omitting cents) damages are awarded to the plaintiff in the sum of $4,333,333. (6) Costs are reserved.

Australian Capital Territory v Kitt [2004] NSWCA 444 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Manly Council v Byrne [2004] NSWCA 123 Nambucca Shire Council v Connor [2004] NSWCA 13 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 alr 532

Jon Watt (Plaintiff) PARTIES : Copmanhurst Shire Council (Defendant)

FILE NUMBER(S) : SC 20186/01

B.M. Toomey QC/M.A. Kumar (Plaintiff) COUNSEL : M.T. McCulloch SC/D. Villa (Defendant)

MBP Legal (Plaintiff) SOLICITORS : Phillips Fox (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Wednesday 2 February 2005

20186/01 JON WATT v COPMANHURST SHIRE COUNCIL

JUDGMENT 1 HIS HONOUR: In this cause the plaintiff, Jon Watt, sues Copmanhurst Shire Council seeking damages in respect of severe spinal injury suffered after a vehicle the plaintiff was driving left the roadway. 2 Proceedings were commenced against the Roads and Traffic Authority of New South Wales as first defendant and Copmanhurst Shire Council as second defendant. As against each defendant, the plaintiff's claim was pleaded in negligence, the central allegation being that the accident occurred by reason of negligence associated with the conduct of roadworks. Each defendant denied negligence and pleaded contributory negligence and cross claims were pleaded as between the two defendants. Settlement was reached in relation to the proceedings against the first defendant, judgment being entered in its favour on the plaintiff's claim, and the cross claims were accordingly dismissed. So it is that the action proceeded to trial only as between the plaintiff and the defendant council. 3 The parties have agreed that if the plaintiff is successful on the issue of liability, his damages should be measured at $6,500,000, subject to any deduction, if appropriate, for contributory negligence. That agreement is recorded in Exhibit P, and the parties are to be congratulated upon reaching it. 4 The accident giving rise to this claim occurred on the Summerland Way north of Grafton at approximately 4.00 pm on 24 March 1998. That road was described in the evidence as running generally north and south between Casino and Grafton. The road had a bitumen surface and gravel shoulders. The evidence established that the plaintiff's vehicle, after leaving the roadway, collided with an embankment on the eastern side and came to rest at a point approximately 200 metres north of the intersection of Summerland Way and Gurranang Railway Station Road. The latter road runs off Summerland Way on the eastern side. (I will refer to it hereafter as Gurranang Road.) 5 The evidence further established that roadwork was being done by the defendant at the time of the plaintiff's accident, but the precise nature and location of work being undertaken will call for close scrutiny later in this judgment. 6 What caused the plaintiff's accident was very much in issue at trial. Put shortly, it is the plaintiff's case that the accident was due to the sudden appearance of a kangaroo, necessitating evasive action and braking by the plaintiff, and because there was loose gravel on top of the bitumen surface, the vehicle fishtailed and loss of control led ultimately to the vehicle coming into collision with the embankment adjacent to the eastern shoulder of the roadway and overturning before coming to rest on its wheels. The defendant submitted that the plaintiff's version of the accident ought not to be accepted and denied that there was loose gravel on the roadway causative of the harm suffered. 7 Mr Toomey acknowledged that the appearance of a kangaroo and the presence of loose gravel on the bitumen surface of the roadway in the relevant location were crucial ingredients in the plaintiff's case. The evidence that bears upon these matters demands close attention. 8 The plaintiff was the only occupant of the car involved and there was no independent eye witness to what occurred. 9 The plaintiff is a young man who was born on 1 May 1979. At the time of the accident he had a provisional licence, and owned a 1981 Holden Gemini sedan which his evidence established to be in good order. The plaintiff had owned that vehicle for six months before the accident and the journey I am about to describe was the first long journey he had done in the car. On Monday 23 March 1998 the plaintiff left Sydney to drive to Bellingen where his father was living. He then drove to Grafton and stayed overnight there with his grandparents. The plaintiff then travelled on to Lismore to visit a friend, using the Summerland Way. He also visited his aunt in Alstonville before setting off to return to Grafton where he intended again to stay overnight with his grandparents. This return journey took the plaintiff back to the Summerland Way and he proceeded to travel along it in a southerly direction towards Grafton. 10 The plaintiff gave the following account of his accident in his evidence in chief (T 10-11): "Q. And what speed were you driving along it generally? A. 80 kilometres.