Curtis v Harden Shire Council [2014] NSWCA 314

Bathurst CJ Beazley P Basten JA 10/09/2014

The husband of a driver killed in an August 2004 country road single vehicle accident has sued the local council for failing to erect signage warning of the loose gravel associated with road works.

Debbie Paterson died from head injuries received when her out of control Commodore slid off the road and hit a tree in August 2004 near Kingsvale, south of Young in southern New South Wales.

Harden Shire Council had laid bitumen the previous day and dressed the road surface with loose blue metal aggregate over a distance of about 500m.
As intended, an excess quantity of the aggregate was cast on the newly bituminised surface for progressive embedded by vehicular traffic until the remnants were eventually swept up in the final phase of the project.

The council’s warning to motorists of the loose blue metal consisted of signs containing the word “Roadworks”.

John Curtis on his own behalf and that of their four children, alleged in his NSW Supreme Court claim that the council was negligent by failing to warn motorists of the specific risk of sliding on the loose gravel.

Although loose gravel was apparent to attending police officers, they could not determine from the tyre marks why Ms Paterson appeared to lose control and veer onto the wrong side of the road.

That uncertainty formed the basis of the council’s defence that contended that the absence of additional signage was irrelevant, because the gravel could not be proved to be a cause of the crash.

Despite evidence from an expert engineer that the loss of control was likely caused by a loss of traction of the gravel, Justice Elizabeth Fullerton upheld the council’s position and rejected the damages claim.

Curtis appealed.

Reviewing the evidence, the appeal judges noted in particular the testimony of the director of technical services of the NSW Road Traffic Authority – called by Curtis – that “driving on newly sealed portions of roadways was like walking on marbles” and that a ‘slippery road’ warning was of the utmost importance because it warned of the risk of a loss of traction, “irrespective of a driver being alerted to the presence of roadworks”.

Two of the three judges were satisfied on that basis that the loose gravel was the likely cause of the tragedy and that a sign warning of its presence would more probably than not, have prevented the calamity.

They accepted that a “slippery road” sign should have been put in place before the start of the road works and at appropriate intervals thereafter to alert users to the potentially hazardous conditions.

The trial was on the issue of liability only. A further hearing will be required – if the claim is not negotiated to a settlement – to determine the extent of the family’s loss based on loss of value of services provided by Ms Paterson to the family and loss of her income contribution.

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