Untangling whether roadworks caused the crash

Mott v Philip & Ors; Prosser v Philip & Ors [2017] QSC 212

McMeekin J

The trial before his Honour involved two proceedings heard together arising from a motor vehicle incident which occurred in November 2012. The plaintiff in one proceeding, the front seat passenger of a motor vehicle driven by the first defendant, claimed damages for personal injury as a result of a breach of duty by the third defendant, the Mackay Regional Council, the fourth defendant, a contractor, and the fifth defendant, a subcontractor (the ‘defendants’). Relevantly, the defendants were responsible for roadworks undertaken at the location of the accident.

The plaintiff in the second proceeding made a similar claim, although the third defendant was not a party to these proceedings. As stated by McMeekin J, this did not make any material difference.

The case against the first defendant was the speed at which she was travelling and failing to maintain control of her vehicle. The case against the other defendants was that the presence of aggregate on the road rendered it dangerous for motorists and the failure of the defendants to take adequate precautions against the risk.

Roadworks and signage

Relevantly, a patch of bitumen was removed in the weeks prior to the date of the accident with resealing work, involving the laying of two layers of bitumen with aggregate spread over each layer, undertaken on the day of the accident. Excess aggregate was removed and any further excess aggregate was to be swept the following week. Relevantly, experts agreed that the continued presence of some loose aggregate was inevitable for the roadworks.

Approaching the location of the accident was a pictorial sign indicating the presence of loose stones on the road. Further, the speed limit of the area was 100kph, with an advisory speed of 70kph.

What caused the loss of control

Determining the cause of the loss of control of the first defendant’s vehicle, McMeekin J had regard to expert evidence, stating:

[48] In summary there are various possible scenarios and none can be shown to be necessarily more probable than any other.

[49] It seems very likely that the Ford did enter onto the shoulder of the road at some location. One possible scenario is that Ms Philip steered her vehicle onto the shoulder of the road and accelerated from there as opined by Dr Grigg. Why her vehicle would have left the bitumen surface cannot be known. Ms Philip may have steered there deliberately or inadvertently. She may have accelerated deliberately or inadvertently.

Compulsory speed limit sign

As to whether a compulsory 60kph speed limit sign should have been erected after sealing work had finished on the day of the accident, his Honour was not satisfied that a convincing reason existed for the need for a 60kph sign:

[56] If the signage in place in practical terms alerted motorists to consider a lesser speed and to be aware of the fact that the road surface ahead now contains loose stones – as is obvious – then the issue is what impact should that reasonably have had on motorists? It is not to the point to say that another effect of the advisory sign was to act in harmony with the “curved road ahead” indication. Nor is it accurate to say that the advisory sign “has no relation to the loose aggregate sign”. True it was a permanent sign and the other a temporary one. But the loose aggregate sign was positioned at the base of the advisory sign. It alerted motorists that the road ahead had two issues that needed to be brought into account rather than one – a curve and loose stones.

[57] As well both the expert and lay evidence shows that the area could be traversed safely at the speed limit of 100 kph.

His Honour continued, finding that the defendants had not breached their duty of care by owed to the plaintiffs:

[61] The need to place the compulsory speed sign turned, obviously enough, on the extent of the hazard presented by the roadworks. The evidence is that the spread of aggregate was light and minimal. The evidence that 18 motorists had traversed the area at varying speeds without incident, and Mr La Franchi’s evidence, both suggest that the aggregate that was there did not present a significant hazard even to motorists who ignored the advisory sign completely. The evidence of the behaviour of the 18 motorists in fact relates only to the last half hour before the accident. Traffic had been passing over much the same road conditions for two and a half hours by the time of the accident. Mr La Franchi said that it was a busy road. The probability is that many dozens of vehicles passed through the roadworks without incident.

While not necessary for his Honour to consider, McMeekin J was not satisfied that on the balance of probabilities, the placing of a 60kph speed limit sign would have affected the outcome.

Negligence of the first defendant

As to whether the first defendant was negligent in the operation of her motor vehicle, his Honour stated:

[85] Here, one inescapable fact is that Ms Philip managed to lose control of her vehicle. There is no suggestion here of mechanical failure, or a physical problem with Ms Philip that might suggest an explanation for the loss of control.

[86] As analysed above there seems no reason why any competent driver would lose control of their vehicle merely because of the presence of the aggregate that was on the road surface. An inference can be drawn from the fact that at least eighteen drivers, and perhaps many more, had travelled through there before her without any difficulty. That is as one would expect given the coefficients of friction available. The argument that the traction available would have changed significantly from one car to the next is unsupported by any evidence and improbable.

[87] The various possibilities seem to be that Ms Philip has either accelerated suddenly, or turned her steering wheel suddenly, or braked suddenly, or advertently or inadvertently put her vehicle out on to the road shoulder, or done some combination of these and so lost control. A competent driver should not have. Why she did so cannot be known.

His Honour found that the first defendant was negligent in her manner of driving. Judgment was entered for each plaintiff against the second defendant and the claims against the remaining defendants dismissed.

David Cormack – Brisbane Barrister & Mediator

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