What’s in a sign?

LG Leader September 2019

The Full Court of the Supreme Court has recently upheld a finding of the Supreme Court that the Clare & Gilbert Valleys Council (‘the Council’) was contributorily negligent for a vehicle collision as a consequence of its failure to undertake a thorough assessment of a road and its surrounding conditions, prior to commencing work.

The facts of the case were that:

• a Council employee was to undertake grading works on an unsealed road with a speed limit of 100 km/h. The

grading work required the grader to operate on the wrong side of the road, in the path of oncoming traffic;

• the employee placed ‘Grader Ahead’ signs approximately 200 metres from the area he was grading, one (1) in each direction of traffic. The Council argued that this was consistent with both industry Standards and Practice, and the Council’s usual processes;
• Mr Kruse, the respondent, was driving along the road behind a semi-trailer. Approximately 1km from the grading site, the road surface became unsealed, resulting in the semi-trailer causing a large dust cloud approximately 300 metres from the grading site;
• the dust cloud engulfed Mr Kruse’s vehicle rendering him ‘blind’ and he did not see the ‘Grader Ahead’ sign, nor did he slow his vehicle, which was travelling at 100km/h;
• the semi-trailer saw the grader and was able to avoid colliding with it. However, Mr Kruse did not see the grader, drove into it and sustained injuries.

The Court found, at first instance, that placing a single ‘Grader Ahead’ sign in each direction was ‘quite inadequate’ and that a proper risk assessment would have revealed the need for more signage, such as a ‘slow down’ sign or a sign prescribing a low maximum speed for vehicles approaching, and passing, the grader. It also found that the Council (in failing to properly

assess the risk) and Mr Kruse (in failing to adapt his driving to the conditions) were equally negligent.

The Council appealed the decision to the Full Court of the Supreme Court.

The Full Court rejected the Council’s submissions that it was not negligent, finding that “dust from the road surface presented a foreseeable risk of causing visibility problems” and that the Council had not appropriately applied industry Standards and Practice (if at all). It also found that “the failure to place an earlier warning/speed sign was causative of Mr Kruse’s injuries”.

This case acts as a timely reminder to councils to ensure that they have appropriate risk assessment measures in place requiring employees to consider all relevant and surrounding circumstances, prior to commencing work, particularly where those works may impact the general public.

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