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A local council and a road build contractor have been ordered to pay injury compensation as a result of a motorcyclist losing control on loose stones washed onto the road by heavy rain just days after the thoroughfare was opened to traffic.
David Pillinger was biking north from Nimbin on Blue Knob Road on his way to Beaudesert, when he was thrown from his machine at 80 km/h as it fish-tailed out of control. That much was clear from the trail the bike had made through the debris but there were no eye-witnesses and Pillinger himself, had no recollection.
Those arriving on the scene shortly after – including police and local residents – attested to brown gravel and aggregate up to 1 inch deep, swathed across the road from its eastern edge and for a distance of hundred metres south of the crash location.
The investigating officer footnoted his report “gravel on road”. Further investigations revealed that just 5 days before, building materials giant Boral, had laid aggregate and bitumen on a 1 km stretch under contract to Lismore Council, whose workers had prepared and compacted the road base one day earlier.
The council team had left a windrow of aggregate and gravel on the eastern (upslope) side of the new road, a typical two lane country thoroughfare lined by trees. Boral’s role was to lay a 14mm bitumen and aggregate surface and to remove excess stones by mechanical broom. Its workers also left a windrow – “feathered to some degree” – comprised of roadbase and aggregate.
The court concluded that stormwater runoff had washed from the table drain – which was not upgraded in the project – during the three days of heavy rain preceding the accident, across the downslope of the road and bringing with it the swathe of stones from the window.
Boral ought to have foreseen, it ruled, that leaving the stone piles to the eastern (upslope) side of the road at risk of a washout, constituted a danger to motorcyclists. The council was similarly liable and could not avail itself of the Civil Liability “absence of prior knowledge” road authority defence because its default concerned construction of a road, rather than its maintenance.
Neither did Pillinger’s traversal of the same section of road en route to Nimbin with his 20 biker cohort a few hours earlier, make the presence of the gravel an “obvious risk” for Civil Liability Act purposes. The new road had been opened to traffic without lines marked or signs warning of “new work” or “loose stones”, but this did not impart any liability upon the council. The court drew a distinction between liability for non-exercise of a statutory power (to erect signs) on the one hand and the shoddy execution of the roadworks on the other.
Pillinger was assessed as a contributor to his own injuries to the extent of 10%, for not keeping an adequate lookout and not taking evasive action before entering the hazardous conditions. As between the defendants, they shared liability for the agreed $1.3 million damages to the extent of 60% for Boral and 40% to the Council and must pay the claimant’s legal costs for a 3 1/2 week trial.
Pillinger v Lismore City Council [2014] NSWSC 447 Button J 16/04/2014 – view decision
Categories: Personal Injury , Litigation & Law Practice