Desmond v Mount Isa City Council & Ors [1990] QSCFC 64 [1991] 2 Qd R 482

IN THE SUPREME COURT OF QUEENSLAND 3 REVISED CCPI.ES ISSUED \3 j | Court reporting Bureau t j Date-. ^ l^O j nMwi-iw^i-^wiii^.j Yr~*»-CT, V-'~>*?TSi‘irrirT^ qaj ob¥ i FULL COURT NO. 293^ of 1979 BEFORE : The Chief Justice (Mr. Justice Macrossan) Mr. Justice Kelly S.P.J. Mr. Justice Connolly BRISBANE, 7 SEPTEMBER 1990 10 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) 20 BETWEEN: WAYNE JOSEPH DESMOND (Plaintiff) Appellant - and - MOUNT ISA CITY COUNCIL (First Defendant) First Respondent 30 - and - QUEENSLAND HOUSING COMMISSION (Second Defendant) Second Respondent - and - McINTYRE &. ASSOCIATES PTY.LTD. (Third Defendant) Third Respondent - and - JOHN McGILLIVRAY McINTYRE, ANTHONY O'BRIEN LOUGHNAN, RICHARD GRENVILLE BARRETT, DAVID HARRY JAMES, JOHN WILLIAMS, HARRY MIKELSONS and LEONARD ERIC MOORE (Fourth Defendants) Fourth Respondents JUDGMENT "THE CHIEF JUSTICE: Having heard the further arguments this morning, the orders which I think should be made will now be the s e; __________________________________________________ 60 -Govt. Printer, Qid, l [1990] QSCFC 64 -- 1 of 47 -- 1 10 20 30 40 50 6^ , ,'M The appeal against the first respondent should be allowed and that part of the judgment below which provided that the plaintiff recover nothing against the first defendant should be set aside and in lieu it should be ordered that there be judgment for the plaintiff against the defendant for $750,335.50, such judgment to be dated 13 July 1989 . The appeal against the second and fourth respondents should be dismissed. I think also that the further order in respect of costs, which counsel for the plaintiff/appellant passed up to us that is in two paragraphs -should be made,and I will initial that draft. I further think that the orders should be made in the terms referring to"undertaking". which counsel for the plaintiff/ appellant also passed up to us -that is undertaking in respect to payment of the amount, and disposal of the amount under the judgment in the immediate circumstance -and I shall initial that order as well, it having been altered already in the course of discussion by adding the words on the third last line of the first page, after the words "solicitors for the appellant" , the words "on the terms hereinafter set forth" and the reference to "leave to appeal"on that first page amended also to "special leave to appeal". That is in the two instances where it there . appears . I think that it.i.should. further be ordered as follows: the further hearing of the issues, if any, between the first, third and fourth respondents- not disposed of by this appeal, be remitted to the trial judge. MR. JUSTICE KELLY: In view of the discussion that has now taken place I agree that, in view of the orders which I — Govt. Printer, Qld. i ' 20 30 40 50 60 2 -- 2 of 47 -- IN THE SUPREME COURT OF QUEENSLAND | REVISED COPIES ISSUE! | Court Reporting Bureau Iff" JV ^ / ctD FULL COURT No. 2935 of 1979 BEFORE : 10 The Chief Justice (Mr. Justice Macrossan) •/ Mr. Justice Kelly S.P.J.. ...... Mri:, Justice Connolly 10 BRISBANE, 6 SEPTEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter , Court Reporting Bureau.) x> BO BETWEEN : WAYNE JOSEPH DESMOND (Plaintiff) - and - MOUNT ISA CITY COUNCIL (First Defendant) - and - Appellant First Respondent 20 40 50 QUEENSLAND HOUSING COMMISSION (Second Defendant - and - Second Respondent McINTYRE & ASSOCIATES PTY.LTD. (Third Defendant) Third Respondent - and - 40 JOHN McGILLIVRAY McINTYRE, ANTHONY O'BRIEN LOUGHNAN, RICHARD GRENVILLE BARRETT, DAVID HARRY JAMES, JOHN WILLIAMS, HARRY MIKELSONS and LEONARD ERIC MOORE Fourth (Fourth Defendants) Respondents 50 JUDGMENT THE CHIEF JUSTICE: In my opinion the appeal should be allowed against the first and fourth respondents and the further orders should be made to which I refer in my reasons, 60 -Govt. Printer, Qid. l -- 3 of 47 -- I publish my reasons. MR. JUSTICE KELLY: In my opinion the appeal against the first respondent should be allowed and that part of the judgment below which provided that the plaintiff recover ’ nothing • against the first' defendant '= ’ shb'uTd"'b¥T "set^ in lieu it should be ordered that there be judgment for the plaintiff against the first defendant for $750,335.50 with costs, including reserved costs if any, to be taxed, such judgment to be dated 13 July 1989. It should further be ordered that the first respondent pay the appellant's costs of the appeal to the extent that those costs relate to his appeal against the first respondent, to be taxed. The appeal against the second respondent and the fourth respondents should be dismissed, with costs. I publish my reasons. MR. JUSTICE CONNOLLY: I agree with the order proposed by the Senior Puisne Judge. I publish my reasons. THE CHIEF JUSTICE: The order of the Court will then be as proposed by the Senior Puisne Judge. MR. DOUGLAS: Perhaps we should seek leave to read and file now an. affidavit in support of the stay. If I could hand up the original and three copies of that. THE CHIEF JUSTICE: We will give you leave, Mr. Douglas, then to file and read that affidavit. —Govt. Printer, Qld. 2 -- 4 of 47 -- proposed yesterday, the orders as now indicated by the Chief Justice should be those to be made. MR. JUSTICE CONNOLLY: I agree. THE CHIEF JUSTICE: Those will be the orders of the Court. 10 30 -- 5 of 47 -- s f' C- o/o £>■ IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN : WAYNE JOSEPH DESMOND (Plaintiff) -and- No. 2935 of 1979 Appellant MOUNT ISA CITY COUNCIL (First Defendant) First Respondent -and- OUEENSLAND HOUSING COMMISSION (Second Defendant) Second Respondent -and- McINTYRE & ASSOCIATES PTY . LTD. (Third Defendant) Third Respondent -and- JOHN McGILLIVRAY McINTYRE, ANTHONY O'BRIEN LOUGHNAN, RICHARD GRENVILLE BARRETT, DAVID HARRY JAMES. JOHN WILLIAMS, HARRY MIKELSONS and LEONARD ERIC MOORE (Fourth Defendants ) Fourth Respondents CHIEF JUSTICE KELLY SPJ CONNOLLY J Reasons for judgment delivered by the Chief Justice, Kelly SPJ and Connolly J on 6th September 1990. SEVENTH SEPTEMBER 1990 JUDGMENT "APPEAL AGAINST THE FIRST RESPONDENT ALLOWED, THAT PART OF THE JUDGMENT BELOW WHICH PROVIDED THAT THE PLAINTIFF RECOVER NOTHING AGAINST THE FIRST DEFENDANT SET ASIDE AND IN LIEU ORDER THAT THERE BE JUDGMENT FOR THE PLAINTIFF AGAINST THE -- 6 of 47 -- SUCH FIRST DEFENDANT FOR $750,335.50, JUDGMENT TO BE DATED 13 JULY 1989. THE APPEAL AGAINST THE SECOND AND FOURTH RESPONDENTS DISMISSED. FURTHER ORDER THAT THE PLAINTIFF PAY THE COSTS OF THE SECOND, THIRD AND FOURTH DEFENDANTS OF AND INCIDENTAL TO THE ACTION INCLUDING RESERVE COSTS TO BE TAXED, AND THAT THE FIRST DEFENDANT PAY THE PLAINTIFF'S COSTS OF AND INCIDENTAL TO THE ACTION INCLUDING RESERVED COSTS TO BE TAXED, SUCH COSTS TO INCLUDE THE COSTS PAYABLE BY THE PLAINTIFF TO THE SECOND, THIRD AND FOURTH DEFENDANTS. FURTHER ORDER THAT THE APPELLANT PAY THE COSTS OF AND INCIDENTAL TO THE APPEAL OF THE SECOND AND FOURTH RESPONDENTS, AND OF THE THIRD RESPONDENT INCURRED UP TO 30TH DAY OF NOVEMBER, 1989, IN EACH CASE TO BE TAXED, AND THAT THE FIRST RESPONDENT PAY THE APPELLANT'S COSTS OF AND INCIDENTAL TO THE APPEAL TO BE TAXED, SUCH COSTS TO INCLUDE THE COSTS PAYABLE BY THE APPELLANT TO THE SECOND, THIRD AND FOURTH RESPONDENTS. FURTHER ORDER THAT UPON THE FIRST RESPONDENT UNDERTAKING THAT IF AN APPLICATION IS MADE FOR SPECIAL LEAVE TO APPEAL TO THE HIGH COURT OF AUSTRALIA THAT APPLICATION WILL BE PURSUED BY IT WITH REASONABLE DILIGENCE, AND IF SPECIAL LEAVE TO APPEAL IS GIVEN BY THE HIGH COURT OF AUSTRALIA TO THE FIRST RESPONDENT THE FIRST RESPONDENT WILL PURSUE SUCH APPEAL WITH REASONABLE DILIGENCE, THE APPELLANT AND HIS SOLICITORS UNDERTAKE THAT, UPON THE FIRST RESPONDENT SATISFYING THE JUDGMENT GIVEN BY THE FULL COURT, THE AMOUNT PAID IN RESPECT OF THE APPELLANT'S CLAIM INCLUSIVE OF INTEREST BUT EXCLUDING COSTS WILL , APART FROM THE SUM OF $20,000.00 BE HELD BY THE SOLICITORS FOR THE APPELLANT ON THE TERMS HEREINAFTER SET FORTH IN A SEPARATE INTEREST BEARING ACCOUNT IN A BANK AND WILL BE RETAINED THERE TOGETHER WITH ANY INTEREST WHICH ACCRUES FROM TIME TO TIME THEREON AND WILL NOT BE PAID TO, OR AT THE DIRECTION OF, THE APPELLANT UNTIL: (a) 22 DAYS AFTER THE DATE ON WHICH THE JUDGMENT OF THE FULL COURT IS SERVED ON THE SOLICITORS OR THE FIRST RESPONDENT; OR (b) IF DURING THE PERIOD SPECIFIED IN (a) ABOVE, THE FIRST RESPONDENT FILES AND SERVES ON THE SOLICITORS FOR THE APPELLANT AN APPLICATION FOR SPECIAL LEAVE TO APPEAL TO THE HIGH COURT OF AUSTRALIA AGAINST THE JUDGMENT OF THE FULL COURT AGAINST THE -- 7 of 47 -- FIRST RESPONDENT IN FAVOUR OF THE APPELLANT, UNTIL THAT APPLICATION IS HEARD AND DETERMINED BY THE HIGH COURT OF AUSTRALIA OR DISMISSED FOR WANT OF PROSECUTION OR WITHDRAWN OR OTHERWISE FINALLY DISPOSED OF; OR (c) IF THE HIGH COURT OF AUSTRALIA GIVES LEAVE TO THE FIRST RESPONDENT TO APPEAL AGAINST THE DECISION OF THE FULL COURT IN FAVOUR OF THE APPELLANT AGAINST THE FIRST RESPONDENT, UNTIL THE HIGH COURT GIVES JUDGMENT IN THAT APPEAL OR UNTIL THE APPEAL IS DISMISSED FOR WANT OF PROSECUTION OR WITHDRAWN OR UNTIL SPECIAL LEAVE IS REVOKED OR UNTIL THE APPEAL IS OTHERWISE FINALLY DISPOSED OF, AND AS IF A RESULT OF THE DECISION OF THE HIGH COURT THE JUDGMENT IN FAVOUR OF THE APPELLANT AGAINST THE FIRST RESPONDENT IS SET ASIDE, TO REPAY THE AMOUNT SO DEPOSITED TOGETHER WITH ALL INTEREST ACCRUED THEREON TO THE FIRST RESPONDENT AS SOON AS IT CAN BE OBTAINED FROM THE BANK, AND THE SOLICITORS FOR THE APPELLANT UNDERTAKE THAT, IF ANY AMOUNT IS PAID TO THEM IN RESPECT OF THE COSTS PAYABLE BY THE FIRST RESPONDENT TO THE APPELLANT, WHILE ANY SUM IS RETAINED IN A BANK ACCOUNT PURSUANT TO THE ABOVE UNDERTAKING, SUCH AMOUNT WILL BE RETAINED IN A SEPARATE INTEREST BEARING ACCOUNT IN A BANK BY THE SOLICITORS FOR THE APPELLANT UNTIL THE EXPIRATION OF THAT PERIOD, AND IF THAT ORDER FOR COSTS IS SET ASIDE OR MODIFIED SUCH THAT MONIES WHICH HAD BEEN PAID WOULD NO LONGER BE PAYABLE BY THE FIRST RESPONDENT TO THE APPELLANT, TO REPAY ANY SUCH MONIES AND INTEREST TO THE SOLICITORS FOR THE FIRST DEFENDANT. FURTHER ORDER THAT THE FURTHER HEARING OF THE ISSUES, IF ANY, BETWEEN THE FIRST, THIRD AND FOURTH RESPONDENTS, NOT DISPOSED OF BY THIS APPEAL, BE REMITTED TO THE TRIAL JUDGE." -- 8 of 47 -- IN THE SUPREME COURT OF QUEENSLAND Before the Court of Criminal Appeal The Chief Justice Mr. Justice Kelly S.P.J. Mr. Justice Connolly No. 2935 of 1979 BETWEEN: WAYNE JOSEPH DESMOND (Plaintiff) Appellant -and- MOUNT ISA CITY COUNCIL (First Defendant) -and- OUEENSLAND HOUSING COMMISSION (Second Defendant) -and- McINTYRE & ASSOCIATES PTY . LTD. (Third Defendant) First Respondent Second Respondent Third Respondent -and- JOHN McGILLIVRAY McINTYRE . ANTHONY O'BRIEN LOUGHNAN , RICHARD GRENVILLE BARRETT . DAVID HARRY JAMES . JOHN WILLIAMS. HARRY MIKELSONS and LEONARD ERIC MOORE (Fourth Defendants) Fourth Respondents JUDGMENT - THE CHIEF JUSTICE Delivered the sixth day of September, 1990. -- 9 of 47 -- CATCHWORDS : Counsel : Solicitors : Mr. C. Brabazon Q.C. and D.J. McGill for the Appellant . Mr. R.K. Douglas Q.C. and Mr. P.C. Stevens for the First Respondent. Mr. K. Boulton for the Second Respondent. Mr. K.C. Fleming Q.C. and Mr. R.M. Stenson for the Third Respondent. Mr. J. A . Griffin Q.C. and Mr. M.W. Forde for the Fourth Respondent. Messrs. Barry & Wilsson for the Appellant. Messrs. Quinlan Miller & Treston for the First Respondent . Crown Solicitor for the Second Respondent. Messrs. Thynne & Macartney for the Third Respondent. Messrs. Murrell Stephenson for the Fourth Respondent. Hearing dates : 25, 26 and 30 July, 1990 -- 10 of 47 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN : No. 2935 of 1979 WAYNE JOSEPH DESMOND (Plaintiff) -and- Appellant MOUNT ISA CITY COUNCIL (First Defendant) -and- OUEENSLAND HOUSING COMMISSION (Second Defendant) -and- McINTYRE & ASSOCIATES PTY . LTD. (Third Defendant) -and- First Respondent Second Respondent Third Respondent JOHN McGILLIVRAY McINTYRE . ANTHONY O'BRIEN LOUGHNAN. RICHARD GRENVILLE BARRETT. DAVID HARRY JAMES, JOHN WILLIAMS. HARRY MIKELSONS and LEONARD ERIC MOORE (Fourth Defendants) Fourth Respondents JUDGMENT - THE CHIEF JUSTICE Delivered the sixth day of September, 1990. Since a sufficiently full reference to the facts is made in the reasons prepared by Connolly J. it will not be necessary for me to set them out so extensively. It was alleged that the first respondent (the Council) and the second respondent (the Commission) were, in relevant respects, negligent in respect of the design and construction of Park Street which runs downhill from Marian Street in a northerly -- 11 of 47 -- 2 direction towards the intersection with Delacour Drive where the accident occurred. The negligence was said to result from the fact that the design adopted and the construction implemented caused a build-up of gravel in that intersection area after rain. It was also alleged that the fourth defendants, a firm of engineers, were responsible since they had produced the design which was adopted. A storm which resulted in the wash-down of a significant quantity of gravel to the intersection area occurred on 21 March, 1977. This gravel had not been cleared by 7 April, 1977 and was directly responsible for the plaintiff's fall from his motor cycle causing his injuries. The failure to clear up the gravel after it had been deposited was said to provide an additional reason for holding the plaintiff entitled to recover. A number of factual matters were decided by the learned trial judge and no contest now arises in respect of most of them. This renders it appropriate to look directly at a number of significant findings since the real question is what are the appropriate further conclusions to be drawn. The Commission's area of responsibility could not on any argument be said to extend beyond the periphery of its estate and, even so, it has to be acknowledged that the Council was responsible for the overall design of the road and drainage works for the whole area. The Commission not only had no say in the standards to be applied for the upper part of Park Avenue but, in respect of the lower part, including the relevant intersection area, the Commission was, in reality, obliged to execute works the details of which were determined and directed by the Council. -- 12 of 47 -- 3 The engineers were the Council's usual consulting engineers. Although the contract under which the works in question were done was one entered into between the engineers and the Commission, detailed directions in the course of the work emanated from the Council in respect of the upper part of Park Avenue. It could be said that any apparent division of responsibility between the two authorities merely reflected their respective shares of the cost since the totality of the work was in the form devised and insisted upon by the Council. The trial judge has found that it was likely that after heavy rain there would be a large amount of gravel washed down from the upper areas to accumulate on the intersection. Although this was foreseeable the prospect was ignored and no provision was made in the design to prevent this occurrence or to carry off the gravel. It was found that the Council was aware that gravel would wash down Park Avenue to the intersection area and the extent to which this would occur is obviously an important matter. Complete precision does not emerge on this aspect but the sense of the findings and the tenor of the evidence justifies its being said that the amount of gravel after heavy rain would be substantial. It would be dangerous for motor-cyclists even in storms of the one-in-five-year intensity for which the system was designed, and also for heavy downpours of lesser intensity. It is also open to accept and it should be accepted that while the build-up of gravel would be somewhat less in its potentially dangerous aspects for a five-year storm than for a storm of the intensity which in fact occurred on 21 March the difference for present purposes would not be significant. It can also be said -- 13 of 47 -- 4 that if the upper reaches of Park Avenue had been fully sealed, curbed and channelled then there would certainly have been a substantial lessening of the risk of gravel deposit and, in practical terms, it is reasonable to conclude that the risk which resulted from the storm of March, 1977 would have been avoided altogether. The additional cost of that work in upper Park Avenue at the time the road works were undertaken would have been $2,460.00. In considering the possible liability of the various defendants the trial judge thought that the engineers could be under a duty of care to the plaintiff because they "had entered upon the work". This test, which he adopted from Voli v. Inglewood Shire Council (1962-1963) 110 C.L.R. 74 at 85, can be accepted as the basis upon which the engineers' liability to third parties could arise in tort independently of their contract with their principals. In dealing with liability, especially in the case of the Council, the trial judge, having decided that it was reasonably foreseeable that the form of road construction adopted for the upper reaches of Park Avenue involved the risk of injury to users of the road through skidding in collected gravel, then went on to consider what a reasonable man would have done by way of response to this foreseeable risk. Would he, if he were in the position of the road authority, have fully sealed, curbed and channelled Park Avenue? The judge posed the question to himself in this fashion in view of the statements of principle in Wyong Shire Council v. Shirt (1979-1980) 146 C.L.R. 40. It may be accepted that foreseeability of risk alone does not precisely -- 14 of 47 -- 5 state the criterion which decides whether a duty of care exists and the extent to which steps will be necessary to avoid liability in response to that duty. Apart from questions of proximity (as to which no special problem arises in the present case since it involves the established category of highway user: see e.g. Sutherland Shire Council v. Hevman (1984-1985) 157 C.L.R. 424 at 441 per Gibbs C.J.), liability will depend upon the magnitude of risk, the degree of probability of harm and factors of convenience and expense. This appears from the reasons of Mason J. in Wyong Shire Council v. Shirt (supra) at 47. The trial judge answered the question which he thought arose by saying that a reasonable man in the position of the Council would not have fully sealed, curbed and channelled and he gave three reasons for this conclusion. He said that there had been no previous reports of accidents (this must be intended to reflect the frequency at which accidents might be expected to occur because he had already decided that they were foreseeable, that is, that they could occur). He then said that the accumulations of gravel could be dealt with by removal after heavy rain. Finally he said that the expense of dealing with all similar areas or areas even more prone to gravel build-up within Mount Isa would be very high and there was no reason to give priority of attention to the Park Avenue intersection. It seems to me that the question whether a local authority should select one particular problem area for attention rather than others presenting equal dangers is not the same as the question whether, when new work is being executed which will involve the creation of a danger, some further expenditure, -- 15 of 47 -- 6 extremely modest in relation to the overall cost of the scheme, should be undertaken to ensure that the dangerous feature does not intrude. There is reason, then, to examine more closely the relevance and the weight of the considerations which weighed with his Honour in deciding that the Council, in response to its obligation to be "reasonable", need not have adopted the extra precautions which would have obviated the danger it was bringing into existence. It is, with the greatest of respect, necessary to avoid an over-ready acceptance of the approach which his Honour adopted. It seems that he may have concluded that it was not negligent of the Council to build or arrange to build the relevant road area in the way that it did because he unduly compartmentalised two aspects of the problem by giving separate attention to design and the subsequent clean-up operations. In concluding that the design could not be regarded as unacceptable it may, first of all, be detected that he concentrated heavily upon the capacity of the adopted design to dispose of water without giving sufficient emphasis at all points of his reasoning to its adequacy to accommodate water-borne gravel. More importantly, he appears, in effect, to have decided that the design was satisfactory on a premise which he did not at all points fully express, namely that it was satisfactory only if it was assumed that supplementary clearing and maintenance works would be continually' carried out. The preferable assessment of the situation should be that the design was no more than provisionally satisfactory and the condition of its suitability was not met in the present case -- 16 of 47 -- 7 because the work which was essential to keep the highway in a satisfactory state was not carried out. To hold otherwise and to decide that a design should be regarded as satisfactory because supplementary work could keep it that way could be tantamount in a particular case to deciding that if continuing and specialised work programmes in the future could theoretically keep a construction safe but from the moment of conception and execution the authority has no intention of adhering to that necessary future regime then the design, as such, must be regarded as adequate. Putting the matter another way the design, in a case like the present, must be judged having in mind the chance or risk that the necessary support procedures will not be carried out. Support work of the kind under discussion is different from standard maintenance work which is necessary to ensure the continuing viability of all man-made works. What falls for discussion in the present case is the suitability of a design which, from its beginning, is subject to particular weakness in that it is built in a way which ensures that it will in the future periodically attract an accumulation of gravel in dangerous quantities. The gravel which the Council's design caused to be transported to and retained upon the intersection area was not in that location, a part of the fabric of the highway but was a foreign or artificial accumulation upon its surface . It does not, in principle, appear to matter that in the ordinary course of events it could be expected that some time would elapse before the operation of natural forces would result -- 17 of 47 -- 8 in the gravel gathering there. To take a more extreme example, to dig a trench and to leave it open upon a highway in conditions of good visibility may not import any danger but a work constructed and left in that state will inevitably become dangerous when, if left unlit, the day draws to a close and night falls. In the present case it can be regarded as sufficiently certain that the consequence of the design adopted was that gravel would from time to time collect upon the intersection area. The design which was adopted caused, admittedly somewhat indirectly, the foreign element, gravel, to accumulate on the intersection and it is difficult to see why acts which so caused that accumulation should not be attributed to the actor responsible just as much as if workmen for whom it was responsible had dumped the same quantity of gravel directly on to the surface of the roadway. An action amounting to a misfeasance should, in either case, be regarded as the agency which caused the placing of the gravel even though, again in either case, it might be a non-feasance which results in the gravel, once collected there, being allowed to remain. Further, as Buckle v. Bavswater Road Board (1936) 57 C.L.R. 259 (shortly to be referred to in greater detail) shows, the non-feasance immunity is available only in respect of the exercise of highway powers and not in respect of powers to deal with drainage. It is at least partly in connection with the exercise of drainage powers that the design adopted involved the collection, over an extensive catchment area, of storm water with a gravel bearing capacity and the channelling of that laden water towards the Delacour intersection area. However, for reasons which will -- 18 of 47 -- 9 appear I do not need to deal further with the possible relevance of the distinction between road and drainage responsibilities. The Council both directly in respect of the work which it ordered to be executed in upper Park Avenue (the restricted roadway sealing and the absence of curbing and channelling) and the work which in detail it was in a position to enforce in the lower areas adopted a design the satisfactoriness of which falls to be judged as a whole. On this basis it must be adjudged deficient. The reasons for concluding that this deficiency in design should involve the Council in legal liability in the present case will be further explained shortly. On the other hand, there is no obvious basis upon which the Commission should be regarded as involved in liability because it was the Council's design which was, in a practical sense, implemented and there is no reason to think that the Commission by any action of its own influenced the adoption of it. It was nothing more, in relevant respects, than a conduit for the Council's instructions in the construction of the lower portion of the road and drainage works . It appears that the position of the engineers may have to be judged differently since Voli ' s case (supra) indicates that their liability in tort to third parties can arise from their undertaking the design work.- So far as possible liability to future road users is concerned, the tests of foreseeability and proximity are readily satisfied. It is desirable to.consider further the acceptability of the proposition which the trial judge acted upon namely that the case fell within the category of failure to maintain a road surface -- 19 of 47 -- 10 which had been properly constructed. Mere failures to maintain are, according to the traditional distinction, regarded as acts of non-feasance for which road authorities are held not liable. His Honour considered that nothing in the present case suggested that the construction of the road-works and drainage system in question created a new or additional danger. Reasons for suggesting that this may not be a valid assessment have already been suggested and it is necessary to see whether decided cases support what has been said. The case which is of the greatest assistance in present circumstances is Buckle v. Bavswater Road Board (supra) . Although differing conclusions were there reached by the judges this was because of variations in approach to the factual question whether the relevant drainage system had been installed for roadway or drainage purposes. Dixon J. thought that the drain was put down for roadway purposes, Latham C.J. considered the evidence showed it to have been installed partly for ordinary drainage purposes if also for road purposes while McTiernan J. treated the drain as a foreign or "artificial" construction introduced into the highway. While the approaches and conclusions varied there is no reason not to accept the statements of principle made by Dixon J. and in some respects they are particularly helpful in the present case. At 281 of Buckle , Dixon J. stated the accepted rule that no civil liability is incurred by a road authority by reason of any neglect on its part to repair or maintain a road - the so called "non-feasance" rule. However, at 283 he said that it is a civil wrong for an authority to make roads unsafe or dangerous that is -- 20 of 47 -- it is liable if it creates dangers that ordinary care and skill could avoid. This is the familiar misfeasance rule. More significantly, at 284 he pointed out that dangers created may be made relatively harmless by use of some precautions such as guarding or lighting but if the precaution is discontinued consequences will ensue for which the authority will be liable. This liability will arise "not on the ground that [the authority] failed to exercise its powers so as to prevent [the consequences], but on the ground that it was the active agent in causing an unnecessary danger in the highway". Later on the same page he said "the improper nature of the original act of the road authority must always be the foundation of the complaint against it." He then proceeded to draw a distinction between the cases where the work "actively" done by the road authority will make the highway dangerous except for the presence of "continual subsequent safeguards" and the different class of cases in which the positive activity of the road authority puts the highway in a condition where it is "perfectly proper and safe" although liable over time through wear and tear to depreciate. Depreciation acting upon works which are properly installed will not render the road authority liable since it is not liable for what is usually described as non-feasance. 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". In the present case the design of the -- 21 of 47 -- work as being appropriate to carry off expected quantities of storm water has been found to be proper and adequate and in the arguments advanced on the appeal no quarrel is made with that finding. However, the design and execution of the road-works cannot be regarded as unqualifiedly proper and safe for traffic purposes since the safety of those works was made dependent upon the continuation of a careful programme of clearing of gravel deposits and because it was the way that the road system was built which gave rise to the need for continuing attention. The subsequent failure to clear the gravel deposit which caused the plaintiff's injuries rendered operative the potentially dangerous deficiency which was a feature of the design. Dixon J. in his reasons in Buckle provides examples of decisions where the design and construction method adopted were standard or normal enough at the time of execution but became dangerous due to the operation of ordinary wear, tear and depreciation. There may be a borderline, perhaps sometimes difficult to draw, and certain of the cases cited by Dixon J. may be regarded as illustrations of judgments reached on factual assessments. In the present case the plaintiff's complaint is not with the Council's general policy of limited sealing of road surfaces which might in many instances have been perfectly properly employed but it is directed towards its adoption in a particular situation where a foreseeable mischief or danger would inevitably result. As a matter of judgment, in particular cases it may be proper to conclude that highway designs are defective in their capacity to deal with the effect of foreseeable dangers -- 22 of 47 -- 13 intruding at particular locations. The present case falls in that class. In the matter before us the failure to erect a warning sign does not appear to have been emphasised - it was described by the judge as not argued. It is open to think that this was for the reason that the case was presented on the basis that the gravel in the intersection area could reasonably have been cleared in the ordinary way well before the day of the accident. The accident did not occur in any short intervening period following a storm during which it would be unreasonable to expect a clearance to be carried out. The requirement on the Council's part for reasonable preventative action in such an abridged period would, had the accident then occurred, no doubt have concentrated attention on failure to warn rather than failure to clear. Since the opportunity to clear was so ample in the present case it became unnecessary to direct attention upon a failure to warn. The conclusion that the causative deficiency lay in the area of design and construction leads back to the conclusion that the engineers must be regarded as liable also. It is true, as counsel pointed out on their behalf, that a case was not mounted against them on the basis of a failure to advise, but as Voli ' s case shows liability will rest upon them by reason of their having entered upon the work. Their failure to advise and to endeavour to persuade their principal means that they must be regarded as an active agent in the implementation of the design and in the construction of the work in the form which has been judged deficient. They should be regarded as the source from -- 23 of 47 -- 4 1 4 which the input of relevant design skills should come, yet they played a part in the production of a design which was unnecessarily dependent on the frailty of human effort to maintain it in a safe condition. The danger inherent in the design was foreseeable and a different design and small additional expenditure would have avoided it. This is enough to render them liable to the plaintiff and would seem to involve the further consequence that they should not be adjudged entitled to a full indemnity from their principals. On the other hand, the Council's policy of limited sealing of streets, a policy which was known to the engineers, must also be accorded significant weight when an examination of the causes responsible for the production of the final work is undertaken. The engineers and the Council should be held equally responsible. It should be adjudged that the appeal succeeds against the Council and against the fourth respondents, the engineers, but it should be dismissed against the second respondents, the Commission, for the reasons discussed. I agree with the proposal of Connolly J. to order that the judgment be dated 13 July, 1989 so that the plaintiff's just entitlement to interest is met. -- 24 of 47 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2935 of 1979 Before the Full Court The Chief Justice Mr. Justice Kelly S.P.J. Mr. Justice Connolly BETWEEN : WAYNE JOSEPH DESMOND (Plaintiff) Appellant - and - MOUNT ISA CITY COUNCIL (First Defendant) First Respondent - and - QUEENSLAND HOUSING COMMISSION (Second Defendant) Second Respondent - and - McINTYRE & ASSOCIATES PTY . LTD, (Third Defendant) Third Respondent - and - JOHN McGILLIVRAY McINTYRE, ANTHONY O'BRIEN L0U6HNAN. RICHARD GRENVILLE BARRETT , DAVID HARRY JAMES , JOHN WILLIAMS , HARRY MIKELSONS and LEONARD ERIC MOORE (Fourth Defendants) Fourth Respondents JUDGMENT - KELLY S.P.J. Delivered the day of 1990. CATCHWORDS : -- 25 of 47 -- 2 Counsel : Solicitors : C.J.L. Brabazon Q.C. with D.J. McGill for Appellant R.R. Douglas Q.C. with P.C. Stephens for First Respondent K.F. Boulton for Second Respondent K.C. Fleming Q.C. & R.M. Stenson for Third Respondent J.A. Griffin Q.C. & M.W. Forde for Fourth Respondents Barry & Nilsson for Appellant Quinlan Miller & Treston for First Respondent Crown Solicitor for Second Respondent Thynne & McCartney for Third Respondent Murrell Stephenson for Fourth Respondents Hearing Dates: 25th, 26th, 30th July, 1990 -- 26 of 47 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2935 of 1979 BETWEEN: WAYNE JOSEPH DESMOND (Plaintiff) Appellant - and - MOUNT ISA CITY COUNCIL (First Defendant) First Respondent - and - QUEENSLAND HOUSING COMMISSION (Second Defendant) Second Respondent - and - MCINTYRE & ASSOCIATES PTY . LTD. (Third Defendant) Third Respondent - and - JOHN McGILLIVRAY McINTYRE. ANTHONY O'BRIEN LOUGHNAN, RICHARD GRENVILLE BARRETT . DAVID HARRY JAMES . JOHN WILLIAMS, HARRY MIKELSONS and LEONARD ERIC MOORE (Fourth Defendants) Fourth Respondents JUDGMENT - KELLY S.P.J. Delivered the day of 1990. The facts relevant to this appeal are set out in the reasons prepared by Connolly J. and it is unnecessary for me to do so. I agree that for the reasons given by Connolly J. the first respondent, Mount Isa City Council, is liable to the appellant so that the appeal against the first respondent should be allowed and the only aspect with which I propose to deal is whether the engineers are also liable with the result that the appeal against the fourth respondents should also be allowed. -- 27 of 47 -- 2 The appellant's case against the engineers as pleaded was that they had been negligent in designing, constructing and supervising the construction of the works, but in the way in which the case was conducted at the trial the essential allegation was one of negligence in design. An application to amend the statement of claim to allege negligence in giving advice to the Council was not granted. It follows from Voli v. Inglewood Shire Council (1962-1963) 110 C.L.R. 74, at p. 85, that by reason of their having entered upon the work the engineers owed a duty of care to the appellant and, if the design were negligent and injury to the appellant resulted from such negligence, the engineers would be liable to him. Applying then the tests set out in Wyonq Shire Council v. Shirt (1979-1980) 146 C.L.R. 40, at p. 47, it is first necessary to ask whether a reasonable man in the position of the engineers would have foreseen that his conduct involved a risk of injury to the appellant or to a class of persons including the appellant. This involves the question of whether a reasonable man in the position of the engineers would have foreseen that the design which they produced might lead to a risk of injury to a person entering upon the intersection by reason of the fact that its implementation might result in a build up of gravel at the intersection after heavy rain. The learned trial judge found that the system was properly designed as a stormwater drainage system but he also found that the system as designed and constructed did not prevent a build up of gravel at the intersection after heavy rain. The learned judge further found that it should have been known to the -- 28 of 47 -- 3 engineers that there would have been some accumulation of gravel at the intersection even in a one in five year storm and that there would have been at least 50 per cent more gravel in a one in 20 year storm. Mr. McIntyre, one of the fourth respondents and the senior partner of the firm concerned who was involved in the detailed work of engineering design, was .aware of the Council's policy that after rain it would clean up significant gravel deposits at street intersections and wherever they occurred on a road. He said that to the best of his recollection this had been happening in the early 1970s and it was assumed that the instruction to do this would be carried out. It would appear that the learned trial judge accepted that the system was designed having regard to this. Mr. Astill, an experienced consulting engineer, said in evidence that it was good design practice to design on the assumption that there is going to be proper maintenance, that is, effective maintenance in all respects at all times, and that he did not think that any engineer could design on the basis that things were not always going to be properly maintained and not always working perfectly. It would appear that the learned trial judge also accepted this evidence. In my opinion the engineers were entitled to design on the basis which they did, being aware of the Council's maintenance policy to which effect was being given and to assume that this would continue to be the case with the result that any significant quantity of gravel which may be deposited at the intersection after heavy rain would be cleaned up. That being -- 29 of 47 -- 4 so, turning to the test in Wvonq Shire Council v. Shirt (supra) to which I have referred, a reasonable man in the position of the engineers would not have foreseen that the design which they produced might lead to a risk of injury to a person in the position of the appellant entering upon the intersection by reason of the fact that implementation of that design might lead to a build up of gravel at the intersection after heavy rain. That being so, no breach of the duty of care owed by the engineers has been made out. Consequently in my view liability on the part of the engineers has not been established and I would not consider that anything said by Dixon J., as he then was, in Buckle v. Bavswater Road Board (1936) 57 C.L.R. 259 should lead to any other conclusion. The appeal against the fourth respondents should therefore be dismissed. I agree that for the reasons given by Connolly J. the appellant is not entitled to relief against the second respondent, Queensland Housing Commission. The appeal against the third respondent was dismissed by consent at the hearing of the appeal. I also agree that an order should be made pursuant to 0. 44 r. 2 that the judgment be dated 13th July, 1989. -- 30 of 47 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2935 of 1979 Before the Full Court The Chief Justice Mr. Justice Kelly S.P.J. Mr. Justice Connolly BETWEEN: WAYNE JOSEPH DESMOND (Plaintiff) Appellant - and - MOUNT ISA CITY COUNCIL (First Defendant) First Respondent - and - QUEENSLAND HOUSING COMMISSION (Second Defendant) Second Respondent - and - MCINTYRE & ASSOCIATES PTY , LTD. (Third Defendant) Third Respondent - and - JOHN McGILLIVRAY McINTYRE. ANTHONY O'BRIEN LOUGHNAN. RICHARD GRENVILLE BARRETT , DAVID HARRY JAMES . JOHN WILLIAMS, HARRY MIKELSONS and LEONARD ERIC MOORE (Fourth Defendants) Fourth Respondents JUDGMENT - CONNOLLY J. Delivered the 6th day of September, 1990. CATCHWORDS : -- 31 of 47 -- 2 Counsel : Solicitors : C.J.L. Brabazon Q.C. with D.J. McGill for Appellant R.R. Douglas Q.C. with P.C. Stephens for First Respondent K.F. Boulton for Second Respondent K.C. Fleming Respondent Q.C. & R.M. Stenson for Third J.A. Griffin Respondents Q.C. & M.W. Forde for Fourth Barry & Nilsson for Appellant Quinlan Miller & Treston for First Respondent Crown Solicitor for Second Respondent Thynne & McCartney for Third Respondent Murrell Stephenson for Fourth Respondents Hearing Dates: 25th, 26th, 30th July, 1990 -- 32 of 47 -- IN THE SUPREME COURT OF QUEENSLAND No. 2935 of 1979 BETWEEN : AND: AND: AND: WAYNE JOSEPH DESMOND (Plaintiff) Appellant MOUNT ISA CITY COUNCIL First (First Defendant) Respondent QUEENSLAND HOUSING COMMISSION (Second Defendant) Respondent McINTYRE & ASSOCIATES PTY ■ LTD. (Third Defendant) Third Respondent AND: JOHN McGILLIVRAY McINTYRE, ANTHONY O'BRIEN LOUGHNAN, RICHARD GRENVILLE BARRETT, DAVID HARRY JAMES, JOHN WILLIAMS, HARRY MIKELSONS and LEONARD ERIC MOORE Fourth (Fourth Defendants) Respondents JUDGMENT - CONNOLLY J. Delivered the day of 1990 At about 11.30p.m. on 6th April, 1977 the plaintiff was riding a motor cycle in a northerly direction down Park Avenue, Mount Isa intending to turn to his right into Delacour Drive. As he commenced his turn he came into a deposit of gravel on the bitumen surface. It has been found that he lost control of the motor cycle, fell off and sustained serious injury. He brought this action for damages against Mount Isa City Council as the highway authority, alleging negligence in the design, -- 33 of 47 -- 2 construction and maintenance of the relevant part of the road system. The other defendants were Queensland Housing Commission, on behalf of which the intersection of Park Avenue and Delacour Drive was constructed and the engineers who designed and supervised the construction of the work. It will be convenient to deal first with the position of the Council. The allegations against the Council were variously stated but essentially they are two in number :- (i) the Council is charged with vicarious liability for the design and construction on the footing that the design was such that any rain would be likely to cause a build up of gravel in the intersection; (ii) the Council was further charged with failing to remove the gravel which had been deposited on the intersection before 6th April, 1977 and with failing to erect a sign warning of the danger of gravel on the intersection. The learned trial judge, in a conspicuously careful judgment, identified the issues of law and fact and made findings on all relevant issues of fact, very few of which, if any, were questioned on the hearing of this appeal. He declined to find contributory negligence against the plaintiff. He found the plaintiff's damages in the sum of $750,335.50. His Honour held that the storm water drainage system was so designed that the accumulation of gravel on the intersection should be been foreseen by ' those who designed it but that it was not in fact taken into account. His Honour found that the complaints made by the plaintiff about the storm water drainage system were, in their essentials, made out. Thus His Honour was satisfied that -- 34 of 47 -- 3 the system as designed and constructed did not prevent a build up of gravel at the intersection after heavy rain; that provision was not made in the system as designed or constructed for trapping or carrying away from the intersection gravel likely to be washed onto it; that provision was not made to ensure that heavy rain would not cause a build up of large quantities of gravel in the intersection; that the defendants knew or ought to have known that the fabric of the footpath (by which I take his Honour to mean the eastern footpath of the Park Avenue to which I shall refer later) comprised loose gravel so located in relation to the intersection that it could be washed in large quantities by heavy rain into the intersection; and finally that it was likely that heavy rain would cause a build up of large quantities of gravel in the intersection. His Honour however held that there was no breach of any duty of care owed to the plaintiff by any of the defendants and dismissed the action. The intersection came into existence as part of the road works of a new estate being part of stage one of Pioneer Estate. The development comprised the land to the north of Joyce Street and the estate road works ran from the junction of Joyce Street and Park Avenue, which was included so as to include the part of Park Avenue to the north of that junction together with Delacour Drive including what has been called the intersection of Delacour Drive and Park Avenue. All of the road system within Pioneer Estate had curbing and channelling and the carriage way was sealed from curb to curb. Park Avenue which seemed to have been an existing road in T969, when this development was embarked upon, was neither sealed nor provided with curb and channel. In -- 35 of 47 -- 4 common with much of the city of Mount Isa, the top soil was a reddish gravel, easily dislodged by storm water. It is relevant to mention that the Council, be aware of shortage of accommodation in the city, had interested the Housing Commission in developing the estate which would seem to have been Crown Land. Mount Isa in 1969 was undergoing considerable expansion and the resources of the Council were somewhat strained. Because of the nature of the top soil the Council was doing its best to provide limited sealing of the unmade road system so as to minimise the discomfort caused by dust but it had not been able to do better than provide 18 foot bitumen strips along the centre of roads such as Park Avenue. Park Avenue was wholly unmade but the decision was taken, as a consequence of the impending Pioneer Estate development to provide an 18 foot strip of bitumen from Marian Street to the south and connecting with the Park Avenue and Joyce Street junction where Park Avenue ran into the fully sealed, curbed and channelled road system of the new estate. The scheme thus envisaged Park Avenue south of the Joyce Street junction having natural gravel shoulders and table drains but no curbing or channelling. The fall of the land along Park Avenue was from south to. north. The learned Judge has found that Park Avenue carried the run off from .an area of up to 3.2 acres in all. He has also found that the gravel which accumulated in the intersection where the appellant sustained his injuries came largely from the eastern side of Park Avenue. The quantity of gravel was by no means negligible. It was up to two to three inches deep in the worst places and had a total volume of two cubic metres. It -- 36 of 47 -- 5 abutted against the northern curb of Delacour Drive and covered almost the full width of Delacour Drive at the south eastern corner of the intersection. The engineers were retained in December 1970 by the Housing Commission which was of course the principal for the Pioneer Estate road works . As a matter of convenience it was arranged between the Council and the Commission that the Commission should include in their contract the provision of the bitumen strip to the southern end of Park Avenue, doing so on behalf of the Council which ultimately paid for it. It is clear however that in all relevant respects, the road works were designed to the requirements of the Council. The Council was the local authority which alone could approve sub-division and it was, as is not disputed, the highway authority. The engineers, although civil engineers in private practice, had acted as city engineers, having been the Council's consultants since 1963. The road works in question were completed in March, 1973 and the roads were open to the public a few months later. It is not profitable to examine all the issues which had been raised amongst the various parties, most of which are not now pursued. The main complaint against the engineers, stated in broad terms, is that they under-designed the stormwater drainage system, which they designed to carry off the volume to be expected in a storm of one in five years frequency. This means simply that the run off would be contained within the drainage system for storms up to such a frequency but that it would not contain the run off for larger storms. At the end of the day, no real criticism is levelled at this approach. -- 37 of 47 -- 6 Obviously it means that from time to time a storm water drainage system will not contain the run off but the disadvantages which ensue are regarded as acceptable and are, in most cases, short lived. The learned trial Judge has found that the adoption of a one in five years storm water situation was appropriate for the design and that the design was in fact satisfactory for the storm water run off so postulated. It is clear however that his Honour recognised that to the designing engineer the function of the storm water drainage system is to carry water and not primarily gravel although, of the nature of things, some gravel will be carried with the water. The gravel in question was deposited as the result of a storm on 21st March, 1977 which was of particular intensity. It has in fact been estimated as having a frequency of one in 50 years. It is obvious therefore that only a major departure from the design assumptions could have been expected to cope with run-off of such intensity and, in practical terms, this could not be called for. The Council's officers and the engineers were, however, aware of the probability that in major storms significant quantities of gravel were likely to be washed downhill and to come to rest when the velocity of the waters abated, as will occur when water ponds in the vicinity of inlets to the drainage system when that system becomes filled to capacity. So far as the present problem is concerned the plaintiff contended, again in broad terms, for one of three solutions. First it was argued for him that the whole of Park Avenue back to Marian Street should have been sealed and curbed and channelled. This, the -- 38 of 47 -- 7 learned Judge has found, would have done much to obviate or at least minimise the deposition of gravel in the intersection with Delacour Drive. This is true enough but it would not have obviated the problem entirely for Park Avenue was not the only source of water borne gravel to this intersection, some at least coming off the caravan park to the south east. However the Council's main response to this suggestion was that the intersection in question was not the only part of the Mount Isa road system at which this sort of problem occurred after storms and that it was not even the worst. His Honour has found that there were many areas in Mount Isa where the deposition of gravel after heavy rain exceeded that at the intersection of Park Avenue and Delacour Drive. The Council had limited budgetary resources and its policy was to provide the 18 foot bitumen strip without curb and channel as being the most practicable approach to improving the amenity of its area within the limits of its budgetary constraints. Now the learned trial Judge reached the conclusion that the only way in which the accumulation of gravel could have been avoided was through the measure which was eventually adopted in 1979, namely the installation of full width sealing of Park Avenue with curbing and channelling. His Honour said that the accumulation was not attributable to any fault in the design and construction of the drainage system but resulted from the design and construction of Park Avenue between Marian Street and Joyce Street. The design for Park Avenue reflected the policy of the Council in a situation in which something like 8.5 per cent of the road surfaces of Mount Isa had any bitumen on them. His -- 39 of 47 -- 8 Honour, rightly in my opinion, concluded that the decision of the Council to lay down bitumen strips and gradually to improve the roads as finance became available is to be regarded as a policy decision, one involving a choice by a public authority as to the allocation of limited funds. He recognised however that the fact that the Council's decision was based upon policy grounds would not provide any immunity to it if it acted negligently in a particular case. It might, as his Honour said, be invoked as a ground why a public authority should not act that it could not afford an excuse for negligent action. There was evidence before his Honour, if evidence on the point were needed, that gravel on paved roads is dangerous, particularly on roads obviously constructed to a particular standard where the driver does not expect a hazard of that type. This is not the case of one of the obviously numerous unpaved roads in the Mount Isa area. Park Avenue provided access from the south to a new sub-division with a fully developed road system. Indeed from Joyce Street to Delacour Drive, Park Avenue itself was a fully developed modern road. An accumulation of two cubic yards of loose gravel on a fully paved intersection is a hazard which would not be expected by users of the highway although, as his Honour found, it was expected by those who designed and constructed the road system. It accumulated where it did because the downward gradient tended to flatten out at the intersection where inlets were located, causing ponding of the storm water carried down Park Avenue and consequential deposition of the gravel. -- 40 of 47 -- 9 The argument for the Council tended to treat this problem as simply one of numerous cases of accumulation of gravel throughout its area. It seems to me however that it is not right to regard the responsibility of the Council as limited to the bitumen strip it constructed in Park Avenue outside stage one of the Pioneer Estate. What should be regarded is the entirety of the works constructed to its requirements from Marian Street to Delacour Drive. So regarded this is not a case simply of a highway authority failing to perform additional work on the shoulders of a road it has constructed and failing to provide it with curbing and channelling. Rather is it a case of an authority which has caused a system of road works to be constructed which must result in a dangerous situation occurring after heavy rain. If this be the correct approach it seems to me that it is no answer to say that other dangerous situations occur in its area. Most of these, having regard to the proportion of unmade roads . to which I referred earlier, will amount to no more than its failure to upgrade the road system which, as a broad statement, will amount to nonfeasance on its part. If there are other cases in which the hazard is the product of works which it has either constructed or the construction of which it has required then, in my judgment, it cannot claim the immunity from responsibility for inaction which is enjoyed by highway authorities. In Buckle v. Bayswater Road Board (1936) 57 C.L.R. 259 Dixon J. as he then was said, at p. 282, of a road authority: "It must decide upon what road work it will expend the funds available for the purpose, what are the needs of the various streets and how to meet them. A failure to act, to whatever it may be ascribed, cannot give a -- 41 of 47 -- 10 cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise any other power belonging to it as a highway authority." At p. 283 however his Honour qualified the apparent generality of that statement as follows: "But while a road authority owes to the members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong. It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorized acts when done by a road authority. But a road authority in doing them must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid." This is not a simple case of a highway authority failing to form a road. It is, on the contrary, a case in which a local authority has permitted sub-division on the basis of a road layout which inevitably had the dangerous features which materialised in this case unless it either sealed, curbed and channelled the eastern part of Park Avenue or took appropriate steps by warning the public and cleaning the road as early as practicable to guard against the hazard. The case is as it seems to me within the words of Dixon J. in Buckle at p. 284: "It is evident that even if what otherwise might be an obstruction or danger is created on the highway, it may be made relatively harmless by the use of some additional precaution, such as guarding or lighting. If the precaution is discontinued, consequences may ensue which up to that time had been intercepted. For these consequences the road authority will be liable in damages ." -- 42 of 47 -- The following passage from the judgment of Mason J., as he then was, in Sutherland Shire Council v. Hevman (1985) 157 C.L.R. 424 at pp. 459-60 is in point :- "Generally speaking, a public authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so: see Revesz v. The Commonwealth (1951) 51 S.R. (N.S.W.) 63. But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power. A common illustration is provided by the cases in'which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning: see, e.g. Barnes v. Irwell Valley Water Board [1939] 1 K.B. 21; Knight v. Sheffield Corporation [1942] 2 All E.R. 411; Fisher v. Ruislip- Northwood Urban District Council [1945] K.B. 584; Bird v. Pearce; Ex parte Somerset County Council (1979) 77 L.G.R. 753. That it is the conduct of the authority in creating the danger that attracts the duty of care is demonstrated by Sheppard v. Glossop Corporation [1921] 3 K.B. 132. There the highway authority was under no duty of care with respect to lighting, though the danger was foreseeable, because it did not create the danger. Having statutory power to make provision for the lighting of streets, it placed a lamp at a dangerous point in a street, the danger not being of its making, but extinguished the lamp at 9.00 p.m. in accordance with a general resolution applying to all streets in the borough. The authority was held not liable on the footing that the statute imposed no obligation to light, that the authority having begun to light was under no obligation to continue to do so, and that having done nothing to make the street dangerous, it was under no obligation to give warning of the danger. Atkin L.J. [1921] 3 K.B., at p. 151 explained earlier cases in which under the same statute local authorities had been liable for not lighting by stating that the local authorities had created . the dangers which were responsible for the plaintiffs' injuries." The learned trial Judge considered that there had been no breach of the duty of care owed by the Council as the highway authority in this case. The existence of the duty is not open to question, a highway authority obviously owing a duty of care to users of the highway. His Honour in considering whether there -- 43 of 47 -- 12 had been a breach of the duty referred to the judgment of Mason J. as he then was in Wvonq Shire Council v. Shirt (1980) 146 C.L.R. 40 at p. 47 where his Honour said that the perception of the reasonable man's response to a perceived risk of injury to those to whom the duty is owed calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. His Honour expressed the view that the magnitude of the risk of injury occurring as it did could properly be assessed as slight. With profound respect I am unable to agree with this assessment. It is based on the fact that there had been no reported previous accident through slipping or skidding in gravel. His Honour agreed that it was not merely fanciful or remote but the appearance presented by the gravel in a photograph in the record which was taken not long after the accident suggests to me that it is simply good fortune that no such accident had occurred previously. Cf. Webb v. South Australia (1982) 56 A.L.J.R. 912 at p. 913. As to the expense of taking alleviating action, the learned Judge confines himself to the sealing of the eastern side of Park Avenue. He considered that the expense of making that improvement could not be isolated from the expense of implementing a decision to provide such improvements wherever they were warranted throughout the town. With great respect I am unable to accept that approach. I repeat that this is a case in which the local authority, with full knowledge of the -- 44 of 47 -- 13 likelihood that the intersection would be made hazardous by the accumulation of gravel after heavy rain, failed to perceive its duty to respond to a situation of its own making. It is no answer to this to say that had it sealed the eastern side of Park Avenue it would have provided conditions superior to those provided in other streets which had in equal or higher claim to be curbed and channelled in the interests of the safety of the community. If the same legal situation obtained in the other locations then it had the same duty to act. Of course if the legal situation was not the same the consideration to which the learned Judge adverted is irrelevant. Finally his Honour considered that the Council's conflicting responsibilities to the residents of Mount Isa, which had led to the adoption of its policy to confine road making to bitumen strips, meant that there had been no breech of its duty of care. The answer to this seems to me, with respect, to lie in what I have said in relation to expense. The Council then, having required the construction of the intersection in a way which was potentially hazardous, was under an obligation to take reasonable steps at least to minimise the hazard. This it might have done by sealing the eastern side of Park Avenue and by a system of warning coupled with timely removal of the gravel. It would seem to have chose the latter, though limiting its operations to clean-up without warning. As to clean-up, his Honour considered that the case was one where there was a failure to maintain a road surface which had been properly constructed and held that such a failure is not actionable. With all respect, this view is answered by the -- 45 of 47 -- passage from Buckle at p. 284 to which I referred earlier. The potential danger of the road system as constructed might have been made relatively harmless by guarding or lighting until the obstructing material could be removed. It was indeed contemplated by the designing engineers that the inevitable accumulation of gravel would be removed by the local authority's road maintenance service. If that had been done promptly the danger would have been obviated and warning devices such as signs or lights could have been employed as interim measures. In the event this obstruction remained in the intersection without any warning device for 17 days before the plaintiff sustained his injuries . In my judgment the plaintiff's appeal against the Council should be allowed and there should be judgment for the plaintiff against the Council for damages found by the learned trial Judge. So far as the other respondents are concerned I am of the opinion that the findings of the learned Judge mean that the design was satisfactory for their purpose which, relevantly, was the disposal of storm water. The likelihood of gravel finding its way onto the intersection was obvious enough but all road surfaces are likely to be made unsafe by the accumulation of debris unless it is constantly removed. The designing engineers could not have provided for the sealing of the surface of Park Avenue contrary to the policy of the Council for the evidence is that the Council would not have paid for the work. Their position cannot, in my opinion, be compared with that of the architects in Voli v. Inglewood Shire Council (1963) 110 C.L.R. 74, which was a case of a structural defect in a building which -- 46 of 47 -- 15 therefore remained potentially dangerous whenever it was substantially filled by spectators, there being no steps open to the owner and occupier to obviate the hazard. The architects in Voli had not under-designed in reliance on their principal's limiting the use of the structure in a manner or to an extent which would have made it safe. They had simply incorporated a faulty member in the building. Here, on the contrary, the engineers were entitled to rely on timely and efficient clean-up and on proper setting up of warning devices had experience showed this to be necessary. As to the Housing Commission, it caused to be constructed, upon what was at that stage its own land, a road system and storm water drainage system which were adequate for their purposes and only liable to become dangerous if the Council failed to discharge its own responsibility. I do not think that the plaintiff is entitled to relief against the respondents other than the Council. Counsel for the appellant submitted that an adjustment of interest is called for having regard to the fact that the appellant has been deprived since 13 July, 1989 of a very large judgment. In my opinion, justice will be done if the Court orders pursuant to 0. 44 r. 2 that the judgment be dated 13 July, 1989 so that interest will run on it from that date under s. 73 of the Common Law Practice Act. -- 47 of 47 --