Overview of a recent negligence court case. This highlights the importance of councils insisting on water-tight supplier contracts, to include relevant clauses requiring suppliers to effect insurance in joint names.

Motor cycle enthusiast, David Pillinger, was riding with friends along a stretch of road north of Nimbin in early 2006. He lost control of his motor cycle and hit the surface of the road, suffering serious injuries.

There was a swathe of material comprising dirt, vegetation and gravel across the road at the location the he lost control. Pillinger, who had no recall of the accident, alleged that Lismore City Council and its contractor Bitupave Limited (trading as Boral Asphalt) had negligently conducted roadworks at the location in December, 2005.  At that stage, the council undertook rehabilitation of the road which included regrading the pavement.

The decision in the case, for Pillinger, ultimately came down to the court finding that the swathe of debris originated from a ‘windrow’, a long line of roadbase and aggregate heaped up during regrading works. The windrow had not been properly feathered out from the high side of the road’s shoulder. The cross-fall, or level surface sloping to one side allowing surface water to run off, allowed the material to move onto the road during three days of heavy rain prior to the accident.

The court found that Boral shouldn’t have created a windrow of roadbase on the high side of the road and that any windrow should have only been created on the lower side.

The court also found Lismore City Council liable because it had breached its duty of care as the road authority to exercise reasonable care. The court found the council had created a windrow of roadbase on the high side of the road, which, due to the cross-fall and heavy rains, had caused the swathe of material to move onto the road.

Accordingly, both Boral and the council were both liable for the creation of the windrow on the high side of the road.

Fortunately the contract which the council had entered into with Boral included a number of relevant clauses. These related to removal of loose roadbase and aggregate, an indemnity for all of the works and a requirement for Boral to effect insurance in the joint names of Boral and the council.

Lismore City Council only succeeded on the claim for lack of insurance but that was sufficient for, in effect, Boral to be responsible for the payment of all of the agreed damages, less 10% for contributory negligence.

At present, Boral has filed an appeal which will be heard at a future date. Lismore City Council has cross appealed.

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