Abbotts v Beaudesert Shire Council [2005] QDC 69

DISTRICT COURT OF QUEENSLAND CITATION: Abbotts v Beaudesert Shire Council [2005] QDC 069 PARTIES: DEREK GRAHAM ABBOTTS Plaintiff and BEAUDESERT SHIRE COUNCIL Defendant FILE NO: 150/2002 PROCEEDING: Trial ORIGINATING COURT: District Court, Southport DELIVERED ON: 11 April 2005 DELIVERED AT: Southport HEARING DATES: 7 & 8 February 2005 JUDGE: Newton DCJ ORDER: Plaintiff’s claim dismissed. Damages assessed in the amount of $46,469.28. CATCHWORDS: Action for damages for personal injuries arising from alleged negligence of defendant in design and construction of a table drain – plaintiff using ride-on mower to cut grass adjacent to batter slope of table drain – whether defendant Council was negligent in design and construction of drain – whether Council had breached its duty of care to plaintiff – whether accident caused by error of judgment on the part of plaintiff – assessment of damages – compound fractures to middle, ring and little metacarpal bones of right hand Cases cited: Brodie and Anor v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Desmond v Mount Isa City Council [1991] 2 Qd R 482 Jones v Bartlett (2000) 205 CLR 166 COUNSEL: Mr M P Van Der Walt – plaintiff Mr R Morgan – defendant SOLICITORS: Hunter Solicitors – plaintiff H B M Lawyers – defendant -- 1 of 31 -- - 2 - [1] This is an action for damages for personal injuries arising from the alleged negligence of the defendant in the design and construction of a table drain situated adjacent to the plaintiff’s property at 21 Chalmette Drive, North Tamborine. [2] The plaintiff (whose date of birth is 21.6.1945) was using a ride-on mower on 8 December 2000 in order to cut the grass along the nature strip outside the front boundary of his property. The incident occurred in late afternoon, at about 4pm. The weather conditions were fine and the grass was dry. The length of the grass on the nature strip was said to be some three or four inches. [3] The plaintiff was making a run towards the driveway of his property when the right front wheel of his ride-on mower began to slide over the edge of the table drain. Although the plaintiff applied the brakes as soon as he felt the front wheel losing traction, this had no effect and the machine continued to slide into the drain. The plaintiff considered that his only option was to jump to his right into the drain and attempt to get out the other side. However, he was unable to avoid coming into contact with the mower which followed him into the drain. He put his hands behind him as he was attempting to scramble out of the drain, at which point the rotating blades of the mower came into contact with the back of his right hand and across the fingers. [4] The plaintiff described the speed at which he was driving immediately prior to the mower slipping into the drain as very slow and less than walking pace. When asked why he was going slowly he stated that: -- 2 of 31 -- - 3 - “Because you’re on – I’m on the edge of a – of a – of a ditch which I – you have to show care and it was – it was – you can see the dangers – so you go slowly.” [5] It was the practice of the plaintiff to leave an edge of grass on what he termed the “danger zone” where it was unsafe to cut. This edge was some four or five inches in from the commencement of the batter slope of the table drain. A whipper snipper (or weed eater) would be used by the plaintiff to cut the grass along that edge and in the drain itself. [6] In cross examination the plaintiff stated that he had purchased his property at 21 Chalmette Drive in 1994 and that the ride-on mower may have been purchased in 1995. He agreed that he had been using the same ride-on mower throughout that period and on the date of the incident. The table drain had been constructed prior to his purchase of the property and remained in the same condition from 1994 until the time of the accident apart from some erosion occurring from time to time. The Council performed no construction work on the stormwater drain after the property had been purchased by the plaintiff. [7] During the summer months the plaintiff would mow the nature strip adjacent to his property on a weekly basis. From April to the end of August this task would be performed every three weeks and from September to December the mowing would be performed with greater frequency. The plaintiff agreed that he used the ride-on mower approximately 20 times a year from 1995 to 2000 to cut the grass on the nature strip. The plaintiff agreed that he had had ample time to familiarise himself with the configuration of the stormwater drain. He also accepted that he -- 3 of 31 -- - 4 - had planted out the nature strip with conifer trees thus ensuring that it could no longer serve as an effective pedestrian pathway. [8] The plaintiff accepted that he, prior to the accident, would cut the edge of the batter with his whipper snipper because it was clear to him that it was risky and dangerous to attempt to mow too near to the edge of the drain. He was asked how far he thought he was from the edge when his machine started to roll and stated that “you go as close as you can before you feel that the slope is too great”. The plaintiff could point to nothing in particular about the natural surface of the edge of the drain which could account for his accident. [9] In the six years during which he had owned the property at 21 Chalmette Drive, up until the time of the accident, the plaintiff had never made a complaint to the defendant Council about the nature of the table drain. He accepted that he knew at the time of the incident that the nature strip was not level and that it sloped downwards towards the property boundary to the drain. [10] Evidence was given on behalf of the plaintiff by Dr Trevor Johnson who is a civil engineer. In his report of December 2003 Dr Johnson notes that the Beaudesert Shire Council Design and Construction Manual requires the table drain system in a rural residential area (such as that in Chalmette Drive) to convey the runoff from a 50 year Average Recurrence Interval storm event without inundation of the adjacent road pavement. The peak discharge or flow rate (measured in litres/second or m3/second) at a point in a catchment due to the 50 year storm event is termed the ‘Fifty year flow’ or Q50. -- 4 of 31 -- - 5 - [11] The most commonly used engineering technique for estimating the peak flow in small to medium sized rural catchments was adopted to determine the Q50 in the table drain at 21 Chalmette Drive. From the Beaudesert Shire Council Design and Construction Manual the runoff coefficient in a low density residential area with an average lot size of 2000m2 (as is the case in the Chalmette Drive area) for a fifty year flood event is 0.84. [12] The rainfall intensity, i.e the time taken for water to travel from the most upstream point in a catchment to the point of interest situated at the downstream end of the catchment is calculated under the Beaudesert Shire Council Design and Construction Manual by the ‘average flow velocity’. Dr Johnson determined that the time of concentration was therefore 17 minutes. This, in turn, corresponds to a design rainfall intensity of 167mm/hr. The catchment area draining to the table drain at 21 Chalmette Drive is approximately 4.6 hectares. The fifty year flow in the table drain at 21 Chalmette Drive was calculated as 1.8m3/s. [13] To the top of the bank, the table drain has an approximate cross-sectional area of 1.6m2. Dr Johnson considers this to be of the correct order to accommodate the design flow of 1.8m3/s. The size of the pipe crossing at 21 Chalmette Drive is 525mm in diameter and this, according to Dr Johnson, is clearly insufficient to carry the design flow, with the result that the table drain will run full and the driveway will be overtopped. Dr Johnson comments that since the level of the top of the driveway is approximately at the same height as the road edge at this location, the road surface will in fact be inundated to some extent during the -- 5 of 31 -- - 6 - design event. However, Dr Johnson concedes that although this indicates that the overall system is inadequate to cater for the design flow, it could still be concluded that the table drain is adequately sized to handle this flow. [14] Dr Johnson lists the following design criteria from subsection 2.5 of the Beaudesert Shire Council Design and Construction Manual as of relevance to the sizing of the table drain in Chalmette Drive: “11. Table Drains – Rural/Rural Residential Areas Table drains to be a maximum of 600mm deep, aside from localised deepenings at pipe crossovers. Desirable side batters of table drains shall be 4H to 1V. (Some road reserve widths on existing roads may preclude such flat batters.) The tailwater level for the minor system ARI shall be outer edge shoulder level. Table drains shall be turfed except where velocities exceed limits in Table 8.03 of the Queensland Urban Drainage Manual, in which case alternative permanent erosion control measures shall be incorporated.” [15] In at least two respects Dr Johnson considers that the table drain in Chalmette Drive fails to comply with the Design and Construction Manual. Firstly, the depth of the existing table drain at no. 21 exceeds 600mm over most of this length, with a maximum depth of about 1,000mm. Secondly, the side batters of the existing table drain are approximately 1 in 1 at some locations in comparison to the desirable standard of 1(vertical) in 4 (horizontal). Notwithstanding these criticisms Dr Johnson does concede that the road reserve width in Chalmette Drive may be insufficient to accommodate the desirable batter slopes, particularly with the constraints of providing adequate road shoulders and property set-backs. He does consider, however, that if the table drain had a maximum depth of 600mm it would be possible to achieve a batter slope of 1 in 3.75. This would enable a nominal set-back of 2m to be retained between the property-side edge of -- 6 of 31 -- - 7 - the table drain and the property boundary. Although still not achieving the desirable standard of 1 (vertical) in 4 (horizontal), this solution is considered by Dr Johnson to be acceptable. [16] Dr Johnson has calculated that if the table drain depth is increased to 1,000mm, it would still be possible to achieve batter slopes of 1 in 2.25, which is, in Dr Johnson’s opinion, significantly better than what has actually been constructed. Thus, Dr Johnson concludes that the table drain is not generally compliant with the Design and Construction Manual and that it would have been possible to build the drain with flatter batter slopes while still maintaining the required flow capacity. [17] Any assessment of Dr Johnson’s opinions expressed in his report of December 2003 should be made in the light of the date that the Design and Construction Manual came into operation, which was 1999. It will be remembered that the construction work on the presently existing table drain in Chalmette Drive occurred in 1992 and 1993. [18] The second report of Dr Johnson is dated 2 February 2005. In this report Dr Johnson refers to the Queensland Urban Drainage Manual (“QUDM”) which was published in September 1992. This manual has been adopted by all local authorities in Queensland, including Beaudesert Shire Council, as it relates to the design of urban drainage infrastructure. Section 8.10 of QUDM relates to the construction of unlined channels and channels lined with soft facings and thus has -- 7 of 31 -- - 8 - relevance to the drainage channel in Chalmette Drive. Section 8.10(d) of the QUDM provides as follows: “(d) Recommended Maximum Channel Side Slopes The maximum channel side slopes for grass lined sections should preferably be 1 on 6 (1V on 6H), with an absolute maximum of 1 on 4 (1V on 4H). If grass lined channels are designed with side slopes steeper than 1 on 4 (1V on 4H), regular maintenance may become impractical and the channel may eventually become overgrown. These conditions would reduce the flow capacity of the channel and could subsequently lead to flooding of low lying areas upstream. Channels lined with ground covers may be permitted to have maximum side slopes of 1 on 2 (1V on 2H), however design of such channels must include considerations of potential future increases in channel roughness, and considerations of channel side slope stability.” [19] Dr Johnson considers that it could reasonably be argued that a channel of the design of that constructed in Chalmette Drive was totally unsuitable for the location in which it was installed. He does, however, concede that he is not aware whether Beaudesert Shire Council had adopted the QUDM at the time of the design of the table drain, although his view is that a prudent design would have taken account of the issues raised in the QUDM which was a significant document in the engineering profession by the time the existing table drain was designed and constructed. [20] In his oral evidence during cross-examination Dr Johnson acknowledged that, from a hydraulic point of view, the existing drainage system in Chalmette Drive generally meets its requirements as set out by Beaudesert Shire Council and that it certainly is typical of the type of drains which have been constructed in that area. He further conceded that the gradient of the sides of the table drain was quite obvious to him when he saw it. Dr Johnson acknowledged that any local authority -- 8 of 31 -- - 9 - deciding on what depth and dimensions it builds a drain to, clearly has a range of competing policy considerations to assimilate and choose between. His evidence in this respect was, in part, as follows: “Well, there’s always those competing issues in terms of a design. I could say that the optimum design for this system would have been to install a pipe along the entire system. If there’s a view that this footpath is too narrow to take a drainage channel then the outcome that a council might consider and perhaps should consider would be the installation of drainage pipes. Such as we see in more densely populated areas as it were. On the other hand, the local authority in this situation always has to balance the cost of those works against the benefit that it’s receiving. In terms of whether it should be a pipe or an open channel I would obviously think a local authority would tend towards an open channel because of its lower cost. But that doesn’t mean the open channel should then be designed in a way which is unsuitable for the context in which it’s used simply if that’s the best hydraulic outcome…” Subsequently Dr Johnson conceded that to put underground pipes down this section of Chalmette Drive to the bottom of Freemont Drive would be vastly more expensive than the open table drain. He also acknowledged that he was unaware of the specific details of the previous drainage which had been enlarged in order to cope with the flooding of a residence further down Chalmette Drive. [21] Dr Johnson was asked about the calculation in his first report that if the table drain was increased to a depth of 1,000mm it would still be possible to achieve batter slopes of 1 in 2.25 which was seen by him as significantly better than what has actually been constructed. He agreed with counsel for the defendant that all of the footpath would have a steeper gradient than it has now if the drain was constructed accordingly. Dr Johnson conceded that because of the narrowness of the road reserve, the competing interests in this case “drive you in one direction or -- 9 of 31 -- - 10 - another…There are clearly conflicts between all of the requirements you’d like to achieve in the footpath area.” [22] Dr Johnson accepted that the use of a four-wheel ride-on mower on the nature strip in the vicinity of the table drain required particular care. He also stated that the gradient of the batter slope is quite obvious in its present configuration. In this regard the following question and answer during cross-examination is of some relevance: “Isn’t it a known engineering precept that if you’re going to construct something like this and you construct something that’s obviously steep, there is a notion that because of its obviousness, it acts as a warning, while something which is subtle has the capacity to be hidden or latent, and take the observer by surprise?-- I don’t know that I would call that an engineering precept. I suppose it could be – I would happily say that’s a common sense precept if you like, but in an engineering sense, I would say that typically if there is a risk of injury or a degree of non-performance because of issues such as that, it’s normally a case in engineering that we would seek to either mitigate the impact by making it difficult for, in this case, pedestrians or others to enter the area, or we would try and make it safer. It’s difficult to say. I mean, this was done in 1993. There were different sets of criteria in place at that time, but generally the engineering community, I think, would seek to make things safe or to make them clearly apparent as unsafe.” [23] Mr Roger Kahler, an engineer specialising in occupational health and safety, testified on behalf of the plaintiff. His report of 9 January 2002 includes measurements of the dimension of the table drain in question. It is approximately 3000mm wide and 1000mm – 1100mm deep. There is a pipe under the driveway of 530mm internal diameter. The footpath in the region of the position where the mower slid into the drain is approximately 3400mm wide. A conifer tree is located some 1800mm from the “reasonably undefined edge” of the gutter and that tree has a coverage at ground level of a circle of some 1600mm – 1700mm -- 10 of 31 -- - 11 - diameter. The sides of the drain slope between 36° - 45°. Mr Kahler describes this as a very steep slope. [24] In relation to the mower being ridden by the plaintiff at the time of the incident, Mr Kahler has identified it as a Rover Colt 8. The mower has a wheel base of 1050mm with a track width at the front of 600mm and at the rear of 680mm. It is fitted with four pneumatic tyres. The angle which the mower adopts on a lateral tip to achieve the point of balance is said by Mr Kahler to be approximately 50°. However, when a person sits upon the mower the angle to instability would decrease because the centre of gravity would be raised due to the person sitting on the mower. In Mr Kahler’s opinion, it is predictable that the mower would tip when passing onto slopes as steep as this gutter. [25] In a letter dated 27 January 2005 to the plaintiff’s solicitors, Mr Kahler has recommended that the side slopes of the table drain should be of the order of 12°. This is broadly in line with an earlier recommendation of Mr Kahler contained in a letter dated 4 March 2002, again to the plaintiff’s solicitors, that the side slope angle on a table drain should be of the order of 10°-12°. In his oral testimony Mr Kahler accepted in cross examination that the table drain had been in a static condition over a period of time leading up to the accident and had not experienced any significant erosion. There is no suggestion that the drain moved or gave way during the plaintiff’s mowing of the nature strip. [26] Of some significance in this case was Mr Kahler’s rejection of the plaintiff’s pleadings in the reply filed in this case. Mr Kahler disagreed that the plaintiff had -- 11 of 31 -- - 12 - not been negligent in his operation of the ride-on mower and disagreed that the footpath did not have a steep gradient. He also disagreed that there was adequate room to operate the ride-on mower on the footpath and disagreed that it was reasonable for the plaintiff to operate the ride-on mower parallel to the drain. Mr Kahler further disagreed that it was reasonable and appropriate to use the ride- on mower on the footpath. [27] Mr Kahler expressed the view that it would be unsafe to attempt to cut the grass along the top of the table drain or within the drain itself by means of a whipper snipper or weed eater because of the presence of the embankment. Indeed, Mr Kahler suggested that he may expect to see more damage from people falling as a consequence of the embankment than would be seen injured from mowers tipping over on the embankment. [28] Mr Kahler conceded that the plaintiff had not clarified with him where the wheels of the mower were positioned at the time the machine began to slide. He stated that the mower would not have slid on the 12° slope because there would be too much friction between the tyres and the ground. For slipping to have occurred the tyres had to have moved onto the steeper slope of the table drain itself. He was asked to assume that the plaintiff had left 4-5 inches above the batter slope which would mean that he was on a 12° angle when, according to the plaintiff’s evidence, the mower started to slide. Mr Kahler responded as follows: “Well, I’d say that his recollection of that phase of losing control is incorrect, because the mower won’t slide sideways on a 12° slope unless it was something akin to almost a clay surface and wet. -- 12 of 31 -- - 13 - You didn’t go into that with him? - - Well, I didn’t, because the moment I started to observe the accident and the mower and the scene I knew that I was dealing with a situation where a mower, for whatever reason, had moved onto a steep slope.” [29] Mr Kahler readily admitted that he is not a hydraulic engineer and that in his suggested design response in his report of 27 January 2005 no hydrological study was undertaken of the catchment area which is serviced by the drain. [30] Mr Stewart Wall gave evidence on behalf of the defendant Council. He is currently employed as an engineer by the Beaudesert Shire Council, his current position being that of Acting Director of Civil Operations. Mr Wall identified a collection of standard drawings which was said to represent the state of such drawings at the time the table drain in Chalmette Drive was designed and constructed. The drawings were maintained as a guideline for the Beaudesert Shire Council’s practices in terms of road construction and drainage issues. Mr Wall confirmed that the original road and drainage constructions in Chalmette Drive were provided as part of the subdivision of the surrounding lands in about 1973. [31] A drawing bearing the number A3006134 was identified by Mr Wall as comprising a guideline for the Council as to: how to maintain the flow of the table drain through the driveway culverts; provide trafficable access to the adjacent property with the installation of a pipe through the driveway enabling the driveway to cross over the top of the table drain; and the various reconfigurations required to be done to the table drain around the location of the pipe. Although the drawing sketched the angle of the batter bank to the foot of the drain at -- 13 of 31 -- - 14 - approximately 45° or 1:1 down from the road shoulder, that angle is not called up in figures on the drawing. The drawing was approved by the shire engineer in January of 1990. [32] Mr Wall explained that the drawings which he identified (Exhibit 8) represent a guideline to the current practice of the Shire Council which needs to be interpreted in light of the circumstances at the site in terms of the topography, the quantity of water which needs to be conveyed and the configuration of the adjacent property in terms of maintaining practical vehicle access. [33] Mr Wall identified Mr Geoffrey Smart as the design engineer employed by the Council to undertake an analysis of the causes of a private property flooding issue in the vicinity of the plaintiff’s residence which had been the subject of complaint to Council. Mr Smart had prepared a document called the Design Report which presented alternatives and made suggestions as to the approach to alleviate the flooding of that private property. The Design Report considered the installation of underground and enhancement of surface drainage in the general vicinity of the plaintiff’s residence to alleviate the flooding issue which resulted in inundation of the complainant’s residence. Mr Wall confirmed that the plans and specifications produced by Mr Smart in the Design Report were in the tradition of the standard drawings produced by the Council in 1990 with respect to the design of a stormwater drain. [34] Drawing A4001003 was identified by Mr Wall as depicting the typical form of road cross section comprising a central pavement forming the carriageway of the -- 14 of 31 -- - 15 - road, the adjacent road shoulders, and the batter slopes and table drain associated with that road formation. The document shows the typical batter slopes which were in use as at the date the drawing was produced (September 1998) and calls them up on the right hand end of the drawing. The batter slope is shown as 1 in 1. Mr Wall was taken to another drawing, part of the earthworks type section, some two pages further on from the previous drawing. He identified this drawing as a collection of formation types for curvature and different scenarios that are encountered in rural road design. The document showed once again the pavement area, the road shoulders, associated batters and drains and calls up typical slopes for various circumstances. These slopes were said to be 1 in 2, typically down to the invert of the table drain and 1 in 1 on the batter slope. [35] Exhibit 7 was identified by Mr Wall as the planning report prepared by Mr Smart in or around 1992. The report discusses a number of options for dealing with the remediation of the flooding problem that involved water flow in Chalmette Drive and Freemont Drive. The planning report outlined the preferred technique and after budget provision had been made by the Shire Council detailed planning was undertaken to create the construction drawings. The primary funding source for the project was the 1992/93 capital budget and the 1993/94 capital budget. Further funding was budgeted when it became evident during construction that there was going to be an over expenditure. Mr Wall identified a document comprising a Council resolution which approved the funding for the proposed works divided into two stages with an amount of $158,000 from the 1992/93 budget and a further amount of $59,000 from the 1993/94 budget being allocated. -- 15 of 31 -- - 16 - A reconciliation conducted by Mr Wall’s department of the total expenditure incurred to complete the project shows that $305,000 was expended. [36] The Beaudesert Shire’s road network for which the Shire Council is responsible is, according to Mr Wall, approximately 1,513kms in length. The shire is essentially rural in nature with the vast majority of the road network comprising rural-type roads. Mr Wall stated that some 400kms of kerb and channel has been constructed with approximately 1,300kms of the road network being formed with table drains. The current Shire Council budget for the roads portfolio is in the order of some $3.3 million per year. The roads portfolio includes road pavements, traffic safety measures, drainage, bridges, footpaths, and ancillary facilities such as bus stops and bus shelters. [37] Mr Geoffrey Smart was employed from 1992 to 2002 as a senior design engineer with the Beaudesert Shire Council. He is a registered professional engineer currently employed by the Gold Coast City Council. In early 1992 Mr Smart was asked to provide a drainage solution to a problem that had arisen opposite the intersection of Chalmette Drive and Freemont Drive. The problem resulted from a fairly large catchment that fed down through Chalmette Drive and Sierra Drive and Beacon Road channelling to a point directly opposite that intersection. Because the drainage there and then was inadequate, water was running across Freemont Drive and through a residence at lot 7 near the intersection of Chalmette Drive and Freemont Drive. Mr Smart prepared a planning report dated June 1992 (Exhibit 7). The report was presented to the defendant Council in June or July of 1992. -- 16 of 31 -- - 17 - [38] At the time Mr Smart prepared his report the system of water disposal in Chalmette Drive comprised a very shallow table drain on the southern side of Chalmette Drive. The system had little capacity and water would overtop Chalmette Drive and run through the properties on the northern side of that street eventually draining to a point near the intersection with Freemont Drive. The residence that had been constructed on lot 7 had in fact been built in the overland flow path for the runoff from the catchment. Mr Smart stated that there were two clear options for dealing with the problem. First, there was the table drain solution with the major collection point being at the intersection of Chalmette Drive and Freemont Drive. Second, an extensive pipe network could have been run up Chalmette Drive with inlet pits along that street. The first option was adopted as the second was simply too expensive. Mr Smart stated that the budget “just didn’t allow that sort of option to be advanced and it really wasn’t even considered in the planning report because of the costs involved in it”. Council budgeted $155,000 for the first phase of the option recommended with a further $59,000 being budgeted for the second stage. [39] Following the allocation of funds for the work the design office at the defendant Council produced the design drawings for the scheme (Exhibit 6). These plans were subsequently approved by the Council. Mr Smart identified Exhibit 2 as comprising the standards of construction that Beaudesert Shire used before the implementation of its Design and Construction Manual. That manual indicates that the Council, unless otherwise approved by the Shire engineer should conform with respect to drainage design parameters to the QUDM. Mr Smart stated that -- 17 of 31 -- - 18 - the manual had been introduced in about 1992 or 1993 and was being used by the Council possibly from about 1993 but that it was definitely not a published document when the report had been prepared by him in respect of the drainage in Chalmette Drive. [40] After the reconstruction of the drain in 1992/1993 Mr Smart considered that it was extremely effective as a water disposal system. No further complaints from the owners of lot 7 or other residents of Freemont Drive were received in relation to drainage problems. Mr Smart confirmed that there were other drains within the Beaudesert Shire of similar dimensions to that constructed in Chalmette Drive in 1992/1993. Mr Smart stated that he was one of the principal authors of the Beaudesert Shire Council Design and Construction Manual and that that document had not been in existence at the time of the compilation of the report and the drawing of the plans for the upgrading of drainage in Chalmette Drive. [41] In cross examination Mr Smart accepted that the QUDM provides for a gradient of one in four as the desirable slope for batter slopes in table drains and that the drain in Chalmette Drive does not conform to that standard. He was asked the following question: “Regardless of when it may have been adopted as a design tool, is it fair to say that you were generally aware of the coming into existence of the QUDM prior to the construction of Chalmette Drive drains? - - No, I probably wasn’t. Unless you’re actually part of the local government team that was preparing the documentation. As I recall, there wasn’t a lot of pre-publicity about the document. The other design tool was Australian Rainfall and Run-off, and QUDM was more a support to that document. So, there were other publications around at the time.” -- 18 of 31 -- - 19 - [42] Mr Paul Buckley is employed by the Beaudesert Shire Council as a work supervisor in charge of maintenance on Tamborine Mountain. He has been employed by the defendant Council for some 22 years and has been a work supervisor for approximately six years. Mr Buckley has been engaged in performing maintenance work on Tamborine Mountain for all of his service with the Beaudesert Shire Council except for approximately 18 months early in his career. He is aware of the stormwater drain running down the southern side of Chalmette Drive and has personal experience of cutting grass and weeds along the edges of the stormwater drain. This was done by the use of whipper snippers approximately on a six monthly basis. [43] Mr Buckley stated that the maintenance in and about the stormwater drain in Chalmette Drive would never be performed with any other machinery than a whipper snipper and in particular a ride-on mower would not be used because of the proximity of the drain. He had never experienced any difficulties with falls or personal safety in using the whipper snippers to cut the grass or weeds in that area. The method adopted by Mr Buckley and his workers is to enter the drain and cut along the bottom of the drain before cutting either side of the slopes and then approaching the remnant vegetation at the top of the drain from the top side. Mr Buckley had never had any difficultly with simply walking down the side of the drain and did not consider that to be a particularly difficult exercise. Mr Buckley confirmed that other drains of similar dimensions to that in Chalmette Drive exist throughout the shire. All are maintained in the same manner by the use of whipper snippers if the slope is deemed too steep to put a machine on. -- 19 of 31 -- - 20 - [44] A letter to the defendant Council dated 25 January 1994 from a Mr S M Weir of 21/23 Chalmette Drive was tendered on behalf of the plaintiff (Exhibit 19). This, it was suggested, shows that concern had been expressed to the Council about the table drain in its present form by at least one person residing in the vicinity of the plaintiff’s residence. However, a perusal of the letter reveals that what is being complained about is the visual impact of the drain and the difficulty of maintaining it rather than any perceived danger that it may represent. Indeed, the words “danger” or “dangerousness” do not appear in the letter. In response to Mr Weir’s letter the Council responded by letter dated 17 February 1994 offering to maintain the table drain “on a regular basis as required”. Findings of fact [45] Although the plaintiff suggested that the grass along the top of the table drain was of sufficient length to conceal the edge of the batter slope, the evidence generally, and in particular the photographs (Exhibit 21, photograph numbers 1, 3 and 4) do no support this claim. While the grass on the top of the other side of the drain (that is, on the side nearest the road) appears quite long and overgrown, the grass in the vicinity of where the plaintiff was mowing was relatively short – perhaps of the order of 3 inches or 7.5cms, and not of a length that could fairly be said to conceal the edge of the batter slope. Thus, I find that the footpath did not present any form of unusual, hidden or latent danger with the slope of the nature strip, the edge of the batter and the gradient of the drain all being quite obvious to the eye. -- 20 of 31 -- - 21 - [46] Furthermore, it is clear that the plaintiff was familiar with the topography of the nature strip and the adjacent table drain outside his residence at 21 Chalmette Drive. He had, over a period of some six years leading up to the incident on 8 December 2000, mowed the nature strip approximately 120 times using the same ride-on mower on each occasion. [47] The evidence does not support a finding that erosion at the top of the batter slope played any part in the incident. Although erosion of the bank had occurred from time to time, the evidence of Mr Kahler makes it clear that no recent erosion was visible that could have contributed to the sliding of the machine into the drain. Similarly, weather conditions played no part in the incident, the weather at the time being fine and the grass dry. It is not suggested that any defect in the ride-on mower, including the tyres, is of relevance to causation. [48] I am satisfied that the evidence of Mr Kahler and Mr Buckley shows that it was dangerous to attempt to mow the grass on the nature strip in the vicinity of the table drain by using a ride-on mower. Notwithstanding the evidence of Mr Kahler that it was also dangerous (and probably no less so) to use a whipper snipper, I am satisfied that it would have been safer for the plaintiff to have used such a machine instead of his ride-on mower. Those responsible for the maintenance of the table drain appear to have had no difficulties whatsoever in using a whipper snipper to control the growth of vegetation in the table drain itself and along the edges of the batter slope. The plaintiff possessed such a machine and there is no reason why he could not have used it rather than using the ride-on mower. -- 21 of 31 -- - 22 - [49] I accept that the defendant Council is responsible for the maintenance of some 1500kms of roads throughout the shire, other than main roads, with approximately 1300kms being in rural residential areas and having adjacent to them for stormwater disposal purposes table drains of the type situated in Chalmette Drive. The budget documents show that rectification of the drainage works in and about Chalmette Drive and Freemont Drive where some landholders were experiencing flooding attracted an allocation of funds of some $200,000. It is clear, and counsel for the plaintiff readily concedes as much, that the costs of installing underwater pipes would have been prohibitive. [50] The construction plans and specifications prepared by Mr Smart were, I am satisfied, appropriate in a hydrological sense to deal with the drainage problem being experienced in Chalmette Drive and Freemont Drive in 1992 and earlier. The drain was constructed in accordance with the plans and specifications. The evidence of Dr Johnson, which criticised the defendant Council for not incorporating construction principles contained in the QUDM, must be assessed in the light of the evidence which establishes that the manual came out in September 1992 but at a time after budget approval for this particular work and approval of the construction of the table drain had already occurred. In these circumstances, I am satisfied that the drain in Chalmette Drive was constructed in accordance with existing standards which had been approved by the Shire Council. [51] Although the plaintiff claimed to have been maintaining a safety margin of some 4 to 5 inches between his mower and the edge of the batter slope, I am unable to -- 22 of 31 -- - 23 - accept his evidence in this respect. It is clear to me, and I so find, that the machine slid into the table drain as a result of the plaintiff’s inadvertence or misjudgement in driving his ride-on mower dangerously close to the edge of the drain. [52] The maintenance regime adopted by the defendant Council in cutting the grass in and around the table drain twice each year was, I am satisfied, sufficient to prevent the edges of the batter slopes from becoming overgrown and thus hidden from the view of pedestrians or persons using grass cutting machinery who were observing reasonable care for their own safety. The Law [53] The duty of care of a highway authority in this country was considered by the High Court in Brodie and Anor v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at 577–578. The duty arising under the common law was identified in the judgment of Gaudron, McHugh and Gummow JJ as follows: “Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having -- 23 of 31 -- - 24 - power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist. The perception of the response by the authority calls for, to adapt the statement of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.” [54] In considering whether a foreseeable risk of harm arising from the design or the method of construction employed in relation to the road (or, in this case the table drain) all the circumstances of the case will require consideration: “The circumstances will include the type and volume of traffic expected. Different roads will serve different purposes and need not be constructed to the same standard. Thus, one would not expect all country roads to be sealed. The cost and practicality of an alternative and safer design, if one be available, may be weighed against the funds available to the construction authority. This may involve striking a balance between competing designs or methods of construction.” (Brodie at 579) [55] With respect to the repair and maintenance of roads, the High Court has noted that the duty of care on an authority will not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. In Brodie the majority judgment noted that: “The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger or the removal of items which protect against danger. -- 24 of 31 -- - 25 - In dealing with questions of breach of duty, whilst there is to be taken into account as a ‘variable factor’ the results of ‘inadvertence’ and ‘thoughtlessness’, a proper starting point may be the proposition that the persons using the road will themselves take ordinary care. Not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury… The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations…” (580-581) [56] Prior to the decision in Brodie, Macrossan CJ in Desmond v Mount Isa City Council [1991] 2 Qd R 482 at 487 observed that “the situation is that if a dangerous condition necessarily results from the original construction of the roadway there will ordinarily be liability but there will be no liability if ‘judged according to the standards of the time and the circumstances then prevailing, the design and execution of the work were not improper or unsafe.’” [57] It was contended on behalf of the plaintiff that the table drain should have been designed and constructed so that its batter slopes were less steep. In this regard the plaintiff points to the 1999 Design and Construction Manual. However, it must be remembered that the table drain was designed and constructed in its present condition in 1993. I accept that there is generally no duty on an authority such as the defendant Council to upgrade facilities in order to keep pace with the changes in standards: Jones v Bartlett (2000) 205 CLR 166. [58] I am unable to conclude that it was inappropriate for the defendant to design and construct the table drain in its present form. The drain was constructed in a form -- 25 of 31 -- - 26 - appropriate to a rural area in order to cater for a one in fifty year flooding event. The cost of installing underground pipes was prohibitive and beyond the budget capacity of the Council. Table drains of similar size and design characteristics exist in other rural parts of the shire. [59] In circumstances where the defendant Council received no complaints about the nature of the table drain (apart from the concerns of one resident in relation to its perceived adverse effect on visual amenity), it could not reasonably have been expected to redesign and construct an alternative table drain in the vicinity of the plaintiff’s property. Indeed, it is of some significance in this case that during the six years leading up to the accident while he resided at 21 Chalmette Drive and regularly cut the grass adjacent to the table drain outside his property, the plaintiff made no complaint to the Council about the nature of the drain. [60] I conclude that the evidence has established that the table drain is appropriately effective for its hydrological function of disposing of stormwater and that its design and construction poses no risk of injury to a person in the class of persons including the plaintiff taking reasonable care for their own safety. The drain posed no hidden risk to the plaintiff who must be taken to have been familiar with the characteristics of the drain due to his long association with it. In my opinion, the defendant Council was under no duty of care, as alleged by the plaintiff, to alter the steepness of the batter bank, erect a barricade or otherwise provide any warning. Nor was the Council under any duty of care to mow the grass in and around the batter banks more frequently than twice a year. It is regrettable that the plaintiff’s injuries arose out of an error of judgement on his part but the Council is -- 26 of 31 -- - 27 - not, in my view, to be properly held accountable for his injuries. The plaintiff’s action must, for these reasons, be dismissed. Quantum of damages [61] The plaintiff, who is presently aged 59 years, is a married man and a lighting consultant by occupation. He was examined by Dr Langley on 2 May 2002 in respect of the injuries sustained to his right hand when it came into contact with the blades of the ride-on mower. In general, the injuries comprised compound fractures to the necks of the metacarpal joints of the middle, ring and little fingers of his right hand. He was taken to the Gold Coast Hospital where a manipulation was carried out on the fractures. The wounds were cleaned and sutured some two days later. His hand was in a splint for six weeks and thereafter he had physiotherapy for approximately four weeks. [62] At the time of Dr Langley’s examination the plaintiff complained that his hand was stiff, that he could not form a fist completely and that his hand ached. He was able to pinch and grip with his right hand but his ability to do so had decreased. He is normally right handed. His main recreation had been golf but the plaintiff could no longer hold a golf club properly following the accident and he has not played since that time. On examination the plaintiff’s arms measured the same length and there was no wasting in the forearm or arm muscles on the right when compared to the left. There was decreased movement in his wrist on the right side when compared to the left mainly in relation to extension and radial deviation. There was swelling in the fingers of his right hand over the metacarpophalangeal region and the index, middle, ring and little fingers had reduced movement in the -- 27 of 31 -- - 28 - metacarpophalangeal joints, the proximal interphalangeal joints and the distal interphalangeal joints. There was no evidence of any injury to the median, radial or ulna nerve in the right hand. X-rays revealed definite fractures of the necks of the metacarpal bones of the middle, ring and little finger areas in his hand. These seemed to be a satisfactory condition for union. [63] Dr Langley confirmed that the plaintiff had received compound fractures to the middle, ring and little metacarpal bones of his right hand. The wounds had healed by the time of the examination on 2 May 2002 but the plaintiff had been left with stiffness and aching in his right hand. Dr Langley noted restricted movements in the metacarpophalangeal joints of the index, ring, middle and little fingers and the proximal interphalangeal joints and the distal interphalangeal joints. The plaintiff also had reduced movement in the wrist mainly affecting extension and radial deviation. Dr Langley expressed the opinion that the plaintiff had a 14% permanent impairment to his body as a whole as a result of the injury to his hand. Further treatment was not required apart from some physiotherapy when the hand aches. The plaintiff’s life expectancy had not been shortened as a result of the injury. The plaintiff returned to work one week after the accident happened. [64] In his oral testimony in cross-examination Dr Langley agreed that the injury to the plaintiff’s right hand would not be expected to reduce his working capacity in running a lighting business. He also accepted that the time had passed when physiotherapy could reasonably be expected to offer any relief from ongoing stiffness in the joints. -- 28 of 31 -- - 29 - [65] Dr Bendeich examined the plaintiff on 12 December 2002 and noted that the plaintiff was still complaining of stiffness in the ulnar three fingers particularly the little finger. Flexion was limited in those fingers and there was also weakness of grasp. X-rays taken after Dr Bendeich conducted his examination showed that all fractures had soundly healed in good position and there was no evidence of any joint damage. Dr Bendeich expressed the opinion that the present state of affairs was unlikely to change significantly and that no further treatment was required. Dr Bendeich observed that the plaintiff had no difficulty with his work but his ability to use tools in his hobby as a handyman had been affected. Dr Bendeich assessed permanent impairment resulting from the injury to the plaintiff’s hand as 10% loss of efficient use of his dominant right hand. [66] I note that Dr Langley was critical of Dr Bendeich’s examination of the plaintiff’s hand because it did not involve a measurement of the joints to assess joint movement. Dr Langley did measure the joints in detail with a goniometer (which is a calibrated device designed to measure the arc or range of motion of a joint). I accept Dr Langley’s evidence that such measurement is “the only way, really, you can do it. It might look as though [it’s] okay and he can form a fist to some extent, but when you measure the individual joints, that’s not so.” Accordingly, I find that the plaintiff has a 14% permanent impairment to his body as a whole as a result of the injury to his hand. [67] This finding warrants an assessment of general damages, as submitted by counsel for the plaintiff, of $30,000. Interest at 2% per annum on a past component of $1,500 for 50 months yields a further $1,250. -- 29 of 31 -- - 30 - [68] There is no claim in respect of past economic loss. However, counsel for the plaintiff has submitted that a global award of $30,000 for future economic loss should be made. The evidence fails to establish, in my view, any link between the injuries sustained by the plaintiff as a result of the accident with the ride-on mower and a reduction in the plaintiff’s ability to conduct his lighting consultancy work. Nor does the evidence establish any such connection with the possible loss of a particular client who currently provides some 60% of the consultancy’s business. I accept that the plaintiff is highly unlikely to return to his former trade of fitter and turner. His age (he will be 60 this year) and the weakening of his grip as a result of the injuries sustained in the accident, would make it very difficult for him to do so. He has not worked as a fitter and turner for some 25 years. However, there is no evidence that the plaintiff’s business as a lighting consultant has been or will be jeopardised by the injuries to the plaintiff’s hand. Particulars of the plaintiff’s income both preceding and following the injury do not reveal any diminution in earnings following the accident. I can see no basis upon which to make an assessment of damages for future economic loss. [69] The schedule of special damages shows that painkilling drugs and a consultation with Dr Atherton have resulted in an outstanding amount of $92.25. This is not disputed. Interest on this amount at 5% per annum for 50 months yields a further $19.22. [70] The Griffiths v Kerkemeyer schedule shows that the plaintiff’s wife has provided domestic assistance by way of mowing lawns, cooking, ironing, clothes washing, -- 30 of 31 -- - 31 - vacuuming and cleaning the spa and also that Mr and Mrs Smith have assisted in pruning a rather high hedge and providing plumbing and general gardening assistance for various periods since the date of the accident. The total amount under this head is $7,537.50. Although there was some cross-examination directed at clarifying some of the assistance provided, I can see no reason to discount the amount claimed in the schedule. Interest at 5% per annum for 50 months on this amount yields a further $1,570.31. [71] A global award for future domestic assistance of $6,000 should be made. [72] The total amount of damages assessed is, therefore, $46,469.28. - - - - - -- 31 of 31 --