JUSTICE

THIS APPEALS! A WIN FOR THE LITTLE BLOKE

Bitupave Ltd t/as Boral Asphalt v X [2015] NSWCCA 298 Ward, Emmett, Gleeson JJA

Never let it be said that the law does not occasionally back the little bloke in a battle with the business and public administration giants of the land. Here is a report of a recent case from northern NSW. I’ve removed the name of the plaintiff for privacy reasons. It’s somewhat dry; persevere with it, it’s worth it. Not only does it describe a win, it will also give you an insight into the way the law actually works, and what a judge considers.

The Court of Appeal today dismissed an appeal brought by Bitupave Ltd t/ as Boral Asphalt (‘Boral’) from a finding that it was negligent in the manner in which it conducted roadworks on a stretch of road where Mr David X subsequently sustained serious injuries in a motorcycle accident. The Court also dismissed a cross-appeal by Lismore City Council (‘the Council’) from a similar finding of negligence against it, and allowed a cross-appeal brought by Mr X in relation to a finding of contributory negligence on his part.

The accident occurred on 22 January 2006 when Mr X was riding his motorcycle north of Nimbin on a gently curving stretch of road with an uphill gradient. The accident occurred shortly after three days of very heavy rain in the area and some six weeks after the Council had undertaken resurfacing works on that stretch of road. During the course of those resurfacing works, Boral carried out work as the Council’s contractor spraying bitumen on the re-sealed road.

Road quality on the North Coast varies enormously; so, obviously, does the care that’s taken when repairs are made. No matter what the legal position is, it always pays to be careful.

Mr X, through his tutor, brought proceedings in the Common Law Division of the Supreme Court claiming damages for negligence against Boral and the Council. Boral and the Council each cross-claimed against the other for indemnity and/or contribution in respect of any liability owed to Mr X.

The primary judge found that the accident was caused when Mr X lost control of his motorcycle when it came into contact with a swathe of material on the road. His Honour found that the swathe contained road base and aggregate which had been left by the Council and Boral, respectively, at the completion of their respective roadworks, in a “feathered out” windrow on the higher side of the road (to the east of the road and west of a table drain). The table drain had been blocked during the heavy rains and his Honour found that a torrent of water had fl owed over the drain and across the road. His Honour found that the Council and Boral were negligent, as it was foreseeable by each of them that leaving a feathered windrow in that position involved a risk that it would be washed across the roadway, thereby reducing the available friction on the road and endangering motorcyclists.

The primary judge apportioned responsibility for the accident as to 60% to Boral and 40% to the Council. His Honour found that Mr X was on notice of the presence of the swathe, having travelled in the opposite (southerly) direction on that stretch of road earlier in the day, and reduced his award of damages by 10% to reflect his contributory negligence.

On the question of indemnity, his Honour held that the Council was entitled to indemnity from Boral for the whole of its liability to Mr X, having breached cl 10 of the contract between the Council and Boral in failing to effect a policy of public liability insurance.

Boral appealed from the whole of the decision. It challenged the factual findings made by the primary judge as to what was on the road at the time of the accident and how it came to be on the road. The Council cross appealed, challenging the findings relating to its liability, the degree of contributory negligence and the apportionment of responsibility between it and Boral, and sought to affirm the finding of liability against Boral on a number of bases, including that it was in breach of two other clauses (cll D2.7(iii) and D2.7(v)) of its contract with the Council. Mr X cross-appealed on the issue of contributory negligence, and sought to affirm the findings of negligence against Boral and the Council on other grounds.

The Court of Appeal found that the primary judge did not err in finding that each of Boral and the Council was negligent in leaving the feathered windrow, to which each had contributed, to the east of the road and to the west of the table drain. There was no error in the factual finding by the primary judge that the swathe contained aggregate and road base from the feathered out windrow in that position. The risk of harm to motorcyclists was one of which both Boral and the Council knew or ought to have known, it was not insignificant and there were reasonable precautions that could have been taken to avoid the risk.

The Court of Appeal found that the primary judge had not erred in concluding that the presence of a combination of road base and aggregate in the swathe was a necessary condition of the harm occurring. It was not necessary for the primary judge to seek to determine the amount of each of those components in the swathe. Each of Boral and the Council had an opportunity to remove the windrow that had been created by a combination of their actions and each failed to do so. But for Boral’s failure to remove the windrow (to which it had added aggregate), the accident would not have occurred.

But for the Council’s failure, when it completed the roadworks, to remove the windrow (other than by feathering it out as it did), the accident would not have occurred. Further, the primary judge’s apportionment of responsibility as between Boral and the Council was not demonstrated to be unreasonable or plainly unjust.

As to the issue of indemnity, the Court of Appeal found no error in the primary judge’s construction of cl 10 of the contract. It required Boral to put in place third party liability insurance for the benefit of the Council on which it could claim if a third party suffered injury as a consequence of the resealing works whether or not that was caused in part by its own negligence, at least where the injury related to the particular works in which both Boral and the Council were involved.

Further, the primary judge did not err in concluding that the Council could not rely on any breach of cl D2.7(iii) or cl D2.7(v). As to the issue of contributory negligence, the Court of Appeal found that, in the absence of evidence as to what was visible travelling south on the stretch of road, there was no basis for the conclusion reached by the primary judge that Mr X saw, or should, riding prudently, have seen, the swathe on his southbound trip. Accordingly, the primary judge was in error in finding contributory negligence on Mr X’s part and the Court ordered that the sum by which damage was reduced on that issue should be paid to Mr X.

All right? Picked up the general ideas? If you haven’t, I’ll leave you with F.E. Smith’s response to a judge who complained that he was no wiser after Smith had argued one of his case: “Possibly not, My Lord, but surely far better informed.” PT