Biting the dust

Earlier this month, the Full Court of the Supreme Court of South Australia (the Full Court) handed down its decision of Clare & Gilbert Valleys Council v Kruse [2019] SASFC 106 (Kruse), where it dismissed the Clare & Gilbert Valleys Council (the Council’s) appeal of a decision which held that the Council was negligent in respect of a vehicle collision in a dust cloud between a grader and Mr Kruse’s vehicle.

The Full Court came to this conclusion because the Council failed to make an appropriate risk assessment and failed to erect an earlier speed restriction and/or warning sign before the intersection where the collision occurred.

Facts

A Council employee (the Employee), was operating a road grader while performing maintenance grading on Main Road 45, near Clare. To perform this job, the grader needed to be driven on the incorrect side of the road, from time to time. This was the case at the time of the collision.

Mr Kruse was driving his car north along Main Road 45 while following a semi-trailer. Once the road changed from bitumen construction to gravel, the semi-trailer created a dust cloud. The result of the dust cloud was that Mr Kruse could not see and essentially drove blind for a period of approximately 300 metres, which led him to collide with the Council’s grader.

There was one yellow sign indicating a presence of the grader for vehicles travelling north on Main Road 45 which said ‘Grader Ahead’ in bold black lettering. However, Mr Kruse did not see the sign due to the dust cloud. The Trial Judge found that the placing of only one sign was inadequate.

The Trial Judge initially found that Council was negligent in respect of how the grader was conducted, however, held that Mr Kruse was guilty of contributory negligence. Liability was apportioned at 50/50 between the Council and Mr Kruse.

The Council appealed the Trial Judge’s decision on four grounds, including that the Trial Judge erred in finding that the Council had a duty to place at least one additional temporary sign at the work site, and that Mr Kruse’s own negligence was the sole cause of his loss.

Decision

For a claim of negligence to be made out, it must be established that:

• The Council owed to Mr Kruse a duty of care;

• The Council breached that duty of care; and

• Mr Kruse suffered damage which was caused by the breach of duty, and was not too remote in law.

All elements were established in Kruse and confirmed on appeal. The Council contended that the initial decision regarding the placement of an additional speed sign was inconsistent with industry standards and practice. However, the relevant Australian Standards regarding maintenance grading require a risk assessment to be conducted. Such an assessment was not undertaken by the Employee. Rather, the Employee was of the view that it would ‘take too long’ to place speed signs out and assumed that if the grader was working and could be seen, traffic would slow down when passing.

The Full Court held that, in discharging its duty of care to road users given that a slow-moving machine was working in an area towards oncoming traffic, the Council should have placed a speed restriction or further warning sign prior to the relevant intersection. The result of this would have been that traffic would have slowed down and reduced the dust nuisance. The probability of a collision occurring would have therefore decreased.

In respect of the causation element, the Full Court agreed with the Trial Judge in that the Council’s failure to place an earlier speed/warning sign was causative of Mr Kruse’s injuries. If a sign had been in place, the driver of the semi-trailer, who caused the dust cloud, would have slowed down and substantially lessened the amount of dust present.

The Full Court rejected the Council’s submission that Mr Kruse was entirely responsible for his injuries. The Council owes a duty of care to all road users when performing such work, regardless of whether they are seen to be responsible drivers or not. The Full Court was also not persuaded that the Trial Judge erred in determining the question of apportionment of liability. It remains the case that both the Council and Mr Kruse were guilty of a serious departure from the appropriate standard of care and were therefore both liable for the injuries that arose.

The Full Court dismissed the Council’s appeal and upheld the Trial Judge’s decision.

Take Home Message

The implications of Kruse for all local government councils are that field employees must be made aware of their responsibilities in respect of work, health and safety matters when performing work within the council’s area. Particularly in respect of road work, adequate and sufficient signage must be in place to reduce the risk of collisions occurring.

For more specific information on the information contained in this article, please contact Chris Alexandrides on +61 8 8210 1299 or calexandrides@normans.com.au or Anastasia Gravas on +61 8 8210 1331 or agravas@normans.com.au.