DISTRICT COURT OF QUEENSLAND
CITATION:
Mater Misericordiae Ltd v Cox & another [2021] QDC 142
PARTIES:
MATER MISERICORDIAE LTD (ACN 096 708 922)
(Appellant)v
KEITH COX
(First Respondent)AND
QBE INSURANCE (AUSTRALIA) LIMITED (ACN 003 191 035)
(Second Respondent)
FILE NO:
1/21
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
16 July 2021
DELIVERED AT:
Brisbane
HEARING DATE:
24 June 2021
JUDGE:
Porter QC DCJ
ORDER:
1. The appeal is dismissed.
CATCHWORDS:
TORTS – NEGLIGENCE – BREACH OF DUTY – where the appellant claimed from the respondents damages for negligent operation of a truck – whether the learned Magistrate erred in concluding that the respondents had not breached their duty of care – whether the risk of damage was foreseeable and not insignificant – whether the first respondent took precautions against that risk of harm which a professional truck driver would have taken
APPEAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – where factual error is alleged – whether the learned Magistrate erred in analysing the concept of foreseeability by confusing the duty of care the appellant owed to road users with the duty of care the respondents owed to the appellant – whether the learned Magistrate erred in concluding that “the first defendant had no reason to be apprehensive about driving under the footbridge”
LEGISLATION:
Civil Liability Act 2003 (Qld), s.9
CASES:
Fox v Percy (2003) 214 CLR 118
Lee v Lee (2019) 266 CLR 129
Queensland v Masson [2020] HCA 28
Warren v Coombes (1979) 142 CLR 531
COUNSEL:
J. Sorbello for the Appellant
C. Templeton for the Respondents
SOLICITORS:
Turks Legal for the Appellant
SMD Lawyers for the Respondents
SUMMARY
On 13 September 2015, the prime mover driven by the first respondent (Mr Cox) struck an overhead footbridge owned by the Mater as the first defendant tried to turn into the grounds of the Mater’s hospital. The appellant (Mater) sued Mr Cox and his employer (the insured of the second respondent), for damages for breach of their common law duty of care in management and operation of the truck. The learned Magistrate dismissed the Mater’s claim on the basis that the Mater had not made out that the respondents had breached their duty of care.
Mater appealed to this Court on two bases: that her Honour erred in her approach to the articulation of the scope of the respondents’ duty of care by focussing wrongly on the Mater’s duty relating to the accuracy of a warning sign on the footbridge and that her Honour erred in concluding that the respondents did not breach their duty of care.
For the reasons set out below, I have concluded that her Honour did not err in the first respect, but did err in the reasoning which led to her conclusion that the respondents had not breached their duty of care. However, reconsidering that matter on the evidence at trial, I have reached the same conclusion as her Honour.
The appeal is dismissed.
THE PROCEEDINGS BELOW
There is a driveway entrance to the Mater Hospital from Stanley Street which passes under a building called the Duncomb Building. Immediately above the driveway entrance is a glass-sided footbridge. Vehicles turning into the hospital grounds from Stanley Street must pass under this footbridge.
In September 2015, construction works of some kind were being undertaken at the hospital. This required the delivery of certain heavy equipment. On 13 September 2015, the equipment was dispatched on two prime movers with trailers operated by the Second Defendant’s insured. One truck was driven by Mr Cox, the First Defendant, and the other by Mr Arnold. Both trucks had high loads. It was agreed at trial that it measured 4.36m, though Mr Cox did not know that at the time of the accident.
On 13 September 2015, both trucks arrived at the hospital with the intention of entering the hospital grounds by the driveway under the Duncomb Building.
The driveway had a large sign located in the left (entry) lane stating, “Low Clearance 4.5m”. It also had a warning bar hanging from chains facing Stanley Street. The warning bar was painted red and white. It was admitted at trial that the warning bar was measured 4.525m from the driveway to the underside of the bar on the left side of the driveway, and 4.5m from the driveway to the underside of the bar on the right side of the driveway. There was no evidence as to how far the warning bar was from the outside edge of the footbridge, but photographs tendered at trial indicate it must have been at least .5m in my view.
It was also accepted on appeal that the whole of the footbridge was not above 4.5m. In fact, its lowest point on the driveway was said to me to be 4.484m, though one infers it must be less than that, given that Mr Cox’s vehicle was measured at 4.36m and still struck the footbridge.
Mr Arnold’s vehicle entered the hospital first. He took a right-hand turn into the driveway from Stanley Street. He must therefore have been travelling away from the city centre on Stanley Street and must have crossed the traffic to enter. Mr Arnold negotiated the driveway without incident.
Mr Cox approached the driveway from the other direction, travelling towards the city centre on Stanley Street and turning left into the driveway. He had observed Mr Arnold enter the driveway and pass under the footbridge without incident.
Mr Cox said he saw Mr Arnold had gone very close to the underside of the footbridge. How close? He said “200 millimeters. That’s two centimeters”. 200mm is 20cm. He later said that he should have had at least a centimetre clearance if Mr Cox had two centimetres. Challenged on the slim margins involved, he said “clearance is clearance”. The mix up in description of distance was never clarified by asking Mr Cox to show the distance of Mr Arnold’s clearance with his hands or some similar process. A traffic management person nearby thought the clearance was about 6 inches, which is much closer to 200mm than 2cm. Someone much further away suggested 2cm.
When Mr Cox entered under the footbridge, the following events occurred:
(a)Mr Cox’s truck did not hit the warning bar;
(b)His truck also initially passed under the footbridge without incident;
(c)It then struck the footbridge at the side distant from the entry as the highest part of his load was passing under it; and
(d)The footbridge was damaged.
Photographs tendered at trial explain the nature of the impact with more clarity. Exhibit 16 is of most assistance. What it demonstrates is that the impact occurred on the side of the footbridge facing into the hospital grounds. How the truck managed to negotiate the side facing the road and initially pass under the footbridge without incident, only to strike the inside edge of the footbridge, was not examined in evidence. However, as it was accepted that Mr Cox’s truck with its load was 4.36m at its highest, the footbridge must have been below that level at the point of impact.
The Mater repaired the footbridge at a cost of some $170,000.
The Mater sued the respondents for damages for negligent operation of the truck by Mr Cox.
The duty of care pleaded by the Mater was orthodox and was in these terms:[1]
The first defendant owed a duty of care to the Mater to exercise reasonable skill and care, to the standard of a professional truck driver, in respect of foreseeable risk of damage to the Mater’s property, which risk was not insignificant, by taking reasonable precautions when operating the truck to avoid such property damage (‘the Duty’).
[1] Paragraph 14 of the Amended Statement of Claim filed 25 September 2018.
That duty was admitted by the respondents. The existence and content of the duty was never controversial in the pleadings nor at trial.
At trial, the Mater ultimately alleged the respondents breached that duty as follows:[2]
[2] Paragraph 15(a) to (c) and (g) of the Amended Statement of Claim filed 25 September 2018.
The first defendant breached the Duty he owed to the Mater in premises where:
(a)the first defendant failed to keep a proper lookout so as to avoid the Incident;
(b)the first defendant failed to keep proper control of the truck so as to avoid the Incident;
(c)the first defendant drove the truck up the Slope at an excessive speed in the circumstances;
Particulars
The first defendant was driving the truck at approximately 15km/h when the Incident occurred. This speed was excessive in the circumstances given that the first defendant was aware, or ought reasonably to have been aware that the truck would not transverse safely under the footbridge.
…
(g)the first defendant failed to take reasonable precautions to avoid the Incident by locating an alternate route to arrive at the Duncomb Building. Such an alternate route was available to the first defendant in premises where he could have traversed the truck and the trailer:
(i)along Vulture Street to the intersection between Dock Street and Vulture Street, before turning left onto Graham Street;
(ii)along Graham Street, before turning left onto Raymond Terrace; and
(iii)along Raymond Terrace, before arriving at the Duncomb Building.
(‘the Alternative Route’)
the First Defendant could have then turned the truck and trailer around using the space made available by the loading docks surrounding the Duncomb Building, and exited the Hospital precinct using the Alternate Route.
(collectively, paragraphs 15.a to 15.g above are referred to as the Breach)
Particulars are provided only for paragraph 15(c), and turn on the proposition that the respondents should have been aware that the truck would not pass safely under the bridge. They do not say why.
The defence relevantly stated in paragraph 9, in response to 15(a) to (c):[3]
The Defendants deny paragraphs 15(a) to 15(c) of the Amended Statement of Claim and believe the allegations therein are untrue, particulars of which are that the First Defendant:
(a) kept a proper lookout at all times;
(b) maintained proper control over the prime mover and trailer at all times; and
(c) drove at a reasonable speed in circumstances where the maximum height of his load was 4.36 metres while the footbridge displayed a minimum height sign of 4.5 metres.
[3] Second Further Amended Defence of the First and Second Defendants filed 14 February 2020.
The defence stated in response to 15(g) in paragraph 10:[4]
[4] Second Further Amended Defence of the First and Second Defendants filed 14 February 2020.
The Defendants deny paragraph 15(g) of the Amended Statement of Claim and believe the allegations therein are untrue, particulars of which are:
(a) the Defendants took all reasonable precautions to ensure the trip was safe and free from hazards;
(b) the route selected by the Defendants was represented to be safe and free from hazards by the Plaintiff, for vehicles or loads 4.36m – 4.37m high travelling under the footbridge, namely by displaying a low clearance sign of 4.5m.
(c) had the First Defendant adopted the alternate course suggested by the Plaintiff in paragraph 15(g) of the Statement of Claim:
(i)the destination of the shipping container at 30 Duncombe Street was located past the Old Mater Hospital footbridge which traversed Raymond Terrace;
(ii)another low clearance sign of 4.5m was attached to the Old Mater Hospital footbridge.
Notably in that paragraph, the defence raises the allegation that the Mater represented it was safe to traverse for vehicles under 4.5m. It also alleges that the truck would have had to pass under another 4.5m bridge on the alternative route, but that was not maintained, at least on this appeal, because there is no reason why Mr Cox would not have passed under that bridge, given his load was in fact less than 4.5m. This aspect of the defence case was not pressed on appeal.
The learned Magistrate dismissed the Mater’s claim.
The central part of her reasoning appears in the section of her oral reasons as follows:[5]
I found that the first defendant was a reliable witness. I have taken into account the considerable skills that he would have acquired over 37 years of driving trucks for a living and performing the type of work that was performed on that day. I found the first defendant to be a plain-speaking person who gave straight forward evidence. I have accepted that the first defend had no reason to be apprehensive about driving under the footbridge. It is accepted that the first defendant had seen Mr Arnold’s vehicle go under the footbridge and that Mr Arnold’s had successfully performed the manoeuvrer. The first defendant’s evidence was that he had earlier in the day on Stanley Street gone under a clearance sign 4.5 without difficulty. The first defendant was queried as to where that height clearance sign was situated on Stanley Street. He would not recall the exact location but did recall that the sign had a warning bar previously mentioned, which had pieces of metal hanging down which would act as a warning to a driver that its height was problematic.
I also accept the first defendant’s evidence on this point, and it has also been corroborated by Mr Arnold. It is accepted that the first defendant had no knowledge of the fact that the height clearance sign of the worksite was deficient in terms of accuracy. I preferred the evidence of Mr Arnold and Mr Shorrock and Mr Douglas, and it relates to Mr Douglas’ claim that he’d been tapping on the window of Mr Arnold’s truck to warn him about the clearance under the footbridge. He also asked him to [indistinct] the first defendant to advise him not to go under that particular bridge. Mr Arnold denied that this had occurred and Mr Shorrock said he did not [indistinct]
[5] Reasons at 8.41 to 9.16.
Given her Honour’s finding, she then dealt with each of the alleged particulars of negligence as follows:[6]
[6] Reasons at 9.18 to 10.11.
RE: failing to keep a proper lookout, the first defendant kept a proper lookout at all times and maintained a proper lookout at the prime mover and trailer [indistinct] the first defendant drove at a reasonable speed in the circumstances at a maximum [indistinct] 4.365 metres while the footbridge [indistinct]
On the question of whether the first defendant failed to take all reasonable precautions to avoid the incident [indistinct] submitted that the first defendant had taken all reasonable precautions to ensure the trip was safe and free from hazards and that the route chosen by the first defendant was represented to be safe and free from hazards by the Mater for vehicles of loads. Four-point-three-six metres and 4.37 metres are travelling under the sign, namely by displaying a low clearance sign of 4.5.
The defendant’s summary
The first defendant was going in the footbridge had already seen Mr Arnold go under the bridge. It’s found that the first defendant had not driven at an excess speed. The first defendant drove with due care and attention. The first defendant knew that his truck had gone through without issue as with most of the safety identified part of the container which had caused the damage, notwithstanding that the Mater had accepted that the height of the truck was below 4.5 metres. Considering the decision in Bourhill v Young there is nothing to suggest the first defendant should’ve been concerned or apprehensive about going under the bridge for reasons previously mentioned.
That the first defendant failed to control his truck so as to avoid a collision. The first defendant controlled his truck and was not proceeding under the footbridge at an excessive speed. As previously mentioned, the only evidence given on this point was that he was going fairly slowly and when asked if it was faster than a walking pace he said, “Slightly”. Again, the fact that his truck was 1.6 metres from the gutter when stopped does not suggest that he had failed to control his truck at all. Driving the truck up the slope at excessive speed in circumstances where he was aware of it all reasonably to do so had – has been rejected. That the first defendant failed to take reasonable precautions to avoid the incident by facilitating an alternative route, this allegation has been considered and the body of the decision rejected.
Briefly, it is accepted that neither the first defendant nor Mr Arnold were made aware of any other route to take to come onto the worksite. The evidence of Mr Shorrock corroborated the evidence by saying that there’s a different route – then if a different route was necessary then he was unaware of it. As head traffic controller Shorrock confirmed, there was never any directions given to the drivers to use another route.
The key finding in that passage, in my respectful view, is her Honour’s conclusion that “the first defendant had no reason to be apprehensive about driving under the footbridge”. That finding appears to be based primarily on the matters listed in the passage quoted in paragraph [25] above and informs her Honour’s particular findings on the breaches alleged in the second passage quoted. And there is no surprise in that. If Mr Cox did have reason to be apprehensive about whether his large truck with its very high load would pass under the footbridge, then his decision to proceed to drive under it without taking precautions to confirm he had sufficient clearance would be difficult to characterise as an act done exercising reasonable care to avoid damaging the footbridge.
Her Honour dismissed the Mater’s claim.
THE APPEAL
The Notice of Appeal raises four grounds of appeal. In substance, however, the appeal as developed in argument involved two arguments.
The first was that her Honour erred in analysing the concept of foreseeability by confusing the duty of care the Mater owed to road users (which was primarily relevant to the contributory negligence) with the duty of care the respondents owed to the Mater. This is captured by Ground 1, which provides:
1. The Magistrate erred in determining the negligence of the respondents by making findings as to:
(a) the duty of care owed by the appellant to the respondent; and
(b) whether the appellant breached that duty.
The second argument was, at its most fundamental, that her Honour erred in concluding that “the first defendant had no reason to be apprehensive about driving under the footbridge”, because the findings of fact she made to sustain that conclusion could not be sustained on the evidence. Ergo, Ms Sorbello, for the Mater, contended her Honour erred in concluding that the respondents had not breached their duty of care.
This argument was captured by Grounds 2 to 4 which provide:
2. The Magistrate erred in failing to have regard to the evidence of the first respondent that he did not see the “low clearance” sign affixed to the footbridge.
3.The Magistrate erred in failing to have due regard to the evidence of the first respondent that he observed Mr Arnold’s truck had about “1cm to 2cm clearance” and that he was aware that there is a variance in truck heights.
4. The Magistrate erred, in light of the evidence before the Court, in finding:
(a) the first respondent relied upon the sign clearance height affixed to the footbridge which spans the width of Raymond Terrace at South Brisbane (“the footbridge”);
(b) the first respondent kept a proper lookout;
(c) the first respondent was not driving the truck at an excessive speed;
(d) the first respondent had no reason to be apprehensive about driving under the footbridge;
(e) the first respondent had his vehicle “so far in hand” that, at the speed he was travelling, he could have bought his vehicle to a halt if required.
ALLEGED ERROR IN ANALYSING DUTY OF CARE
Ms Sorbello, for the appellant, relied on the following passage in her Honour’s judgment:[7]
[7] Reasons at 3.30 to 4.39.
Now, concessions made by the Mater are: the footbridge did not have 4.5 metres clearance as at the date of the incident; the Mater was responsible for the maintenance of the footbridge in the case that contributory negligence requires consideration in the ordinary principles of negligence.
Foreseeability
The Mater accepted that it owed a duty to road users in maintaining the footbridge, but the added caveat to that concession is that there was no evidence that the maintenance of the footbridge impacted on the clearance available to road users prior to the incident. In Bourhill v Young [1943] AC 92 the Court addressed the matter of foreseeability by stating that the duty of care is owed only where the tortfeasor ought reasonably to have foreseen that his or her conduct may cause loss of damage to the class of person to which the Mater belongs. It was not necessary for the Mater to show that the precise manner in which the damage was sustained was reasonably foreseeable, but only the general character of the accident and the damage could be anticipated. It’s Chapman v Hearse [1961] 106 (CLR) 112.
Schimke vs Clemens [2011] 58 (NVR), USC Applegarth J. stated:
The content of the deceased’s duty of care towards road users is not determined solely by reference to applicable traffic regulations. The content of the duty of care owed is not determined simply by a literal interpretation of the relevant traffic legislation.
Concerning the question of duty of care, the High Court in Sydney in case [1967] 118 (CLR) 424 observed:
What amounts to reasonable care is of course a question of fact, but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand he can bring his vehicle to a halt or otherwise avoid an impact. Should he find another vehicle approaching him from his right or from his left in such a fashion that, if both vehicles continued a collision may reasonably be expected.
The Mater submits that it had discharged its duty by engaging the company to prepare signs and line marking plans. Two witnesses, Mr Feodoroff, F-e-o-d-o-r-o-f-f, and Mr Runge, R-u-n-g-e, gave evidence for the Mater that there was no reason to doubt the accuracy of the sign and line marking plan, and that while the clearance may have been accurate at the time of being prepared, road resurfacing may have reduced the clearance height. Mr Runge added that the Mater is not responsible for any road surfacing that occurred on Stanley Street. Mr Feodoroff is chartered professional engineer recognised by the Institute of Engineers Australia. He’s also a registered professional engineer in Queensland and had been employed Cardno and was the lead of the building structures team at the Brisbane office.
Mr Runge provided an expert report for the Court. Mr Runge is accepted as an expert civil engineer. The Mater submitted that the defendant had been unable to identify any evidence which showed that the Mater or ought to have known that the sign was inaccurate prior to the incident. The second defendant has agreed that is vicariously liable for any negligence if found to have occurred on the first defendant’s part. The Mater submits that it must prove the first defendant had the – duty of care to exercise reasonable care in driving the truck and loaded semi-trailer so as to obviate or minimise the foreseeable and not insignificant risk of damage to the Mater’s property in travelling along Raymond Terrace. The first defendant breached the duty by failing to take reasonable care. The first event in breach caused damage and the damage was not too remote a consequence from the breach of duty.
[underlining added]
Ms Sorbello submitted that that passage demonstrates that her Honour approached the question of the respondents’ negligence by reference to the duty of the appellant to road users and whether the appellant breached that duty of care. There are some difficulties with this passage of the reasons. With respect to her Honour, it is hard to identify precisely what principle she was seeking to articulate from the cases cited, and hard to identify what role the concept of foreseeability had to play in her analysis. It is also a little unclear how the second underlined passage related to what went before.
However, nothwithstanding those matters, it is reasonably clear in my opinion that the passage quoted is concerned with whether contributory negligence by the Mater was made out. So much is made clear by the first underlined section of the quoted passage and is confirmed in my view by her Honour’s analysis of the expert evidence. I do not agree that her Honour was analysing the Mater’s case by reference to the Mater’s own duty. Further, as it turned out, her Honour did not have to make any findings on the contributory negligence issue because of her dismissal of the Mater’s case. The matters reviewed in the passage challenged by the appellant did not play a role in her Honour’s reasoning, at least so far as I could see. These kinds of ultimately unnecessary forays are not uncommon in ex tempore judgments. In any event, difficulties which might exist with this passage are irrelevant to the judgment given.
I dismiss the first ground of appeal.
ALLEGED ERRORS IN CONCLUDING NO BREACH OF DUTY
Appellant’s contentions
The appellant submitted that her Honour’s conclusion that there was no breach of duty was based on a series of factual errors which cumulatively resulted in error in the conclusion.
First, and most fundamentally, the appellant contended that her Honour had impliedly found that Mr Cox had seen the low clearance 4.5m sign on the footbridge and relied upon it. The appellant contended that that implied finding was in error because Mr Cox accepted that he had not seen that sign when turning under the footbridge, nor did he give evidence he relied upon it. The appellant contended that that erroneous finding undermined her Honour’s conclusions on the specific breaches alleged. The appellant submitted that her Honour could not conclude that Mr Cox had kept a proper lookout, kept proper control of the truck nor driven at a proper speed if he had not in fact seen the low clearance sign or relied upon it.
Second, the appellant contended that Mr Cox’s observation that Mr Arnold’s truck only passed under the footbridge with 1cm to spare could not rationally sustain the conclusion that Mr Cox had exercised reasonable care in driving under the footbridge. On the contrary, that observation should have caused Mr Cox to have real concern about whether his vehicle would pass under successfully at all.
Third, that consideration was made more compelling by the fact that, although Mr Cox’s vehicle was measured at less than 4.5m, he did not know that when driving under the footbridge.
Respondents’ contentions
The respondents effectively accepted that the evidence established that Mr Cox did not observe the low clearance sign on the footbridge itself.[8] However, they submitted that her Honour’s findings were premised not on Mr Cox observing the sign on the footbridge, but rather on his statement that he had passed under a 4.5m clearance sign without difficulty while driving to the hospital and had not hit the warning bar on that occassion. The respondents contended that where Mr Cox had done so, there was no negligence in the lookout he kept, speed at which he drove or the control of his truck in driving under the footbridge with the same clearance marked.
[8] See Submissions of the First and Second Respondent at paragraph 38.
In oral argument, the respondents sought to advance a further consideration justifying her Honour’s conclusion on breach. Mr Templeton, for the respondents, submitted that I should find that Mr Cox’s truck did not strike the warning bar in front of the footbridge and that that fact meant Mr Cox was entitled properly to assume that his vehicle would not strike the footbridge if he proceeded.
The respondents also submitted that once it was accepted that Mr Cox was entitled to assume that his vehicle would not strike the footbridge, there was no evidence that he handled the truck in a manner lacking reasonable care. In particular, he drove at a slow speed and kept the truck under control and kept a proper lookout as he entered the footbridge.
Relevant principles
It is necessary to note the principles governing the nature and limits of appellate review where factual error is alleged:
(a)A Court of Appeal conducting an appeal by way of rehearing of a decision of a judge sitting alone is bound to conduct a real review of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law.[9]
(b)In some cases, an appellate court might be in just as good a position as the trial judge to make a decision on a factual question.[10] But in other cases, the fact that the trial judge has had the advantage of forming impressions about the credibility and reliability of witnesses, as a result of seeing and hearing them give their evidence, will require the appellate court to exercise an appropriate degree of restraint against interfering with factual findings likely to have been affected by that advantage.[11]
(c)If, having exercised an appropriate degree of appellate restraint where necessary, the Court of Appeal nevertheless concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own inferences and conclusions based on those findings.[12]
Analysis
[9] Fox v Percy (2003) 214 CLR 118 at 126 to 127 [25].
[10] See Warren v Coombes (1979) 142 CLR 531 at 551, Fox v Percy (2003) 214 CLR 118 at 126 to 127 [25] and Lee v Lee (2019) 266 CLR 129 at 148 to 149 [55] to [56].
[11] See the High Court decisions listed in Queensland v Masson [2020] HCA 28 at [119], fn 111.
[12] Fox v Percy (2003) 214 CLR 118 at 128 [25].
Her Honour’s reasoning cannot be sustained
Her Honour accepted the evidence of Mr Cox and Mr Arnold. No party submitted I ought to go behind her Honour’s decision in that regard. It is not a case where this Court needs to exercise the care called for where credibility and reliability have been assessed by the trial judge. The challenges are to her Honour’s findings and inferences from those findings based on the evidence of those witnesses, accepting the evidence as credible and reliable.
It is necessary first accurately to identify the factors relied upon by her Honour in concluding that the Mater had failed to establish that Mr Cox had not exercised reasonable care when proceeding under the footbridge in the manner he did.
It is evident that her Honour’s starting point was her conclusion that Mr Cox “had no reason to be apprehensive about driving under the footbridge”. One can well understand that starting point. Mr Cox was driving a large vehicle with high load. If he had reason to be apprehensive about whether he had sufficient clearance to pass under the footbridge, it is difficult see how he could have proceeded without either taking active steps to ensure the truck would pass under without incident or seeking another route.
Her Honour summarised her reasons for reaching her central conclusion as being:
(a)Mr Cox had seen Mr Arnold’s vehicle pass under the footbridge without difficulty;
(b)Mr Cox had earlier in the day on Stanley Street driven under a 4.5m clearance sign without incident;
(c)Mr Cox had no reason to suppose that the footbridge clearance was not 4.5m as stated in the clearance sign and Mr Cox’s vehicle was only measured at 4.35m high; and
(d)Mr Cox was not warned by the traffic controllers about any risk in driving under the footbridge.
In those circumstances, her Honour rejected the Mater’s specific contentions that Mr Cox breached his duty by driving at excessive speed, not keeping a proper lookout and failing to control his truck to avoid a collision with the footbridge.
Her Honour also relied on some further specific findings in respect of the excessive speed allegation. She accepted that Mr Cox drove under the footbridge at slightly more than walking speed. Her Honour also found that Mr Cox had his vehicle so far in hand that it could be fairly assumed he could have brought his vehicle to a halt if required. She also rejected the contention that Mr Cox’s duty required him to seek an alternative route. She found that neither Mr Cox nor Mr Arnold were made aware of any alternative route.
In my respectful view, this reasoning is affected by two material factual errors.
The first is that her Honour plainly acted on the assumption that Mr Cox had seen and relied upon the clearance sign on the footbridge. So much is evident from the following passages:
…the height of his truck was measured, and it was under 4.5 clearance. Measurements on the exhaust pipes was 4.28, and the height of the container was 4.3. Mr Douglas took measurements of both trucks and recorded that the first defendant’s truck was less than 45. And one photograph (20) recorded a measurement of 4.3. Overall, the first defendant denies that he failed to keep a proper lookout and/or failed to maintain proper control over the prime mover and semi-trailer at all times on the basis that, by erecting the height sign, the Mater represented to the first defendant that vehicles up to 4.5 metres height could safely traverse under the footbridge.
Further, the first defendant had already passed under a 4.5 clearance sign on Stanley Street on his way to the worksite. He knew that he had cleared the height easily, as it had heavy metal bars which hung from the top which would rattle loudly if hit, and the driver would be aware of that had it not occurred. The Mater failed to provide any warning to the first defendant that the vehicles – that vehicles less than 4.5 metres could not safely travel under the footbridge. The defendant stated that the parties were in agreement that the truck was lower than 4.5 metres and in fact was 4.365 in height.[13]
…
The allegations that the first defendant should’ve taken reasonable cautions to avoid the incident by choosing an alternative route must be weighed against the factual evidence on that day. The evidence as referenced by the defendant was, “There was a low clearance 4.5 sign attached to the footbridge”. It was reasonable for the first defendant – it was reasonable that the first defendant relied upon that sign upon entering the site.[14]
…
Not only was the first defendant entitled to rely upon the accuracy of the sign, general members of the public were also entitled to that reliance that the sign was accurate.[15]
[13] Reasons at 7.15 to 7.32.
[14] Reasons at 8.17 to 8.22.
[15] Reasons at 8.33 to 8.35.
He Honour’s assumption that Mr Cox saw and relied on the clearance sign on the footbridge cannot be sustained on any view of the evidence. Mr Cox did not give evidence he saw the clearance sign on the footbridge nor that he relied upon it.[16] The closest he came was to give evidence that the clearance sign was there on the day of the accident, but not that he saw it before the accident, much less relied upon it. On the contrary, the gravamen of his evidence was that he relied on his experience with a previous clearance bar he had passed under. Mr Cox gave evidence that prior to reaching the footbridge, he had passed under a height indicator marked as 4.5m with a warning bar which he had observed and noted that his load did not hit that warning bar. Importantly, he also said that that warning bar had warned of a low bridge on a side road ahead. He said this warning bar was in Stanley Street. He said it had a signpost in fibro indicating a low bridge on the side road.[17] So his evidence was that he saw and relied upon a warning bar and 4.5m clearance sign on Stanley Street, not on the sign on the footbridge.
[16] The relevant passages are TS1-95 to 96 and 99 to 100; TS1-109.36 to TS1-110.8.
[17] TS1-94.1 to .4; TS1-95.22 to TS1-96.46; TS1-109.36 to TS1-110.6.
Her Honour’s assumption played a material role in her reasoning. It underpins both the matters in paragraph [48](b) and paragraph [48](c) above. There is a further difficulty with the latter finding. It is clear on the evidence that Mr Cox did not know the maximum height of his truck. Her Honour’s findings make that quite clear. The measurement of the truck was undertaken after the incident by one of the traffic controllers. While the measured height might be relevant to causation or indeed contributory negligence, it cannot be relevant to breach of duty where Mr Cox did not know the measured height.
That leaves the matter in paragraph [48](a) to sustain her Honour’s conclusion that there was no breach of duty. In my respectful view, that matter cannot do so. While I accept her Honour’s finding that Mr Cox saw Mr Arnold pass under the footbridge without incident, it is difficult to see how that could reassure Mr Cox unless he had reason to believe that his load was definitely the same height or a lesser height than Mr Arnold’s load.
Her Honour made so such finding. Indeed, she made a contrary finding: that Mr Cox knew that even if the trucks were carrying the same equipment, they would not necessarily be the same height.[18] Further, her Honour found that Mr Cox observed that Mr Arnold only passed under the footbridge with one to two centimetres to spare. I do not consider those findings rationally support the inference that it was reasonable for Mr Cox not to harbour concerns about whether he would pass under the footbridge.
[18] Reasons at 5.26 to 5.27.
It is worth noting that the matter in paragraph [48](d) is not challenged on appeal, though, by itself, it cannot sustain her Honour’s conclusion.
Accordingly, I respectfully consider that her Honour erred in reasoning to her central conclusion that Mr Cox did not breach his duty of care in driving under the footbridge in the manner that he did.
That finding must be set aside. That does not necessarily mean that this Court must reach a different conclusion. I now turn to considering the issue of breach afresh.
Mr Cox did not fail to exercise reasonable care
The starting point is s. 9 Civil Liability Act 2003 (Qld) which provides:
(1) A person does not breach a duty to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
It is uncontentious that Mr Cox, and through him, his employer, owed a duty to take reasonable care to avoid foreseeable risk of damage to the Mater’s property where that risk was not insignificant, and where the precautions which Mr Cox should have taken to avoid such risk are those which would have been taken by a professional truck driver.[19]
[19] Paragraph 14 of the Amended Statement of Claim filed 25 September 2018.
The questions to be resolved in this case are:
(a)Whether the risk of damage to the footbridge was foreseeable and not insignificant; and
(b)If so, whether Mr Cox took the precautions against that risk of harm which a professional truck driver would have taken.
It can be seen from this simple analysis of the language of the statute that the core issue is, adopting her Honour’s language, whether looked at objectively, Mr Cox had reason to be apprehensive about hitting the footbridge if he drove under it. If he did, it is difficult to see how he could have driven under the footbridge without first ensuring that the truck could pass safely. If he did not have reason to be apprehensive, then it is difficult to see how one could conclude he failed to take reasonable precautions.
The starting point for the analysis is the objective circumstances which existed as Mr Cox approached the footbridge along Stanley Street. They are as follows.
First, he was driving a large prime mover with a shipping container loaded onto the tray which in fact measured as 4.35m. While that measurement was not known to Mr Cox at the time, it does show that Mr Cox would have known, as a professional truck driver, that he was driving a vehicle with a load of such a height as to potentially create a risk in passing under overhead structures.
Second, at some stage while travelling along Stanley Street towards the turn into the driveway under the footbridge, he observed that he passed under a warning bar marked as being 4.5m without striking that warning bar. Mr Cox gave evidence that this occurred. Her Honour expressly accepted that evidence.
There are reasons why one might question that evidence. Mr Cox was shown photographs of an overpass on Stanley Street in the vicinity of the driveway, but was quite certain that was not the warning bar to which he was referring. No other evidence was tendered by either party of the warning bar to which he was referring. It might be thought unlikely that such a structure could be located on a road as busy as Stanley Street without some record of it being available. That is particularly so given, as we see next, Mr Cox gave evidence that it was marked in a way which seemed to link it to the height restriction on the footbridge. However, Mr Cox was not challenged on this evidence in cross examination. Nor did either party ask me to reject his evidence in this respect. Her Honour accepted him as a truthful and reliable witness. One can imagine how evidence about such a structure might not have made it into the trial, particularly as it is unlikely the parties (the hospital owner and the delivery driver) would have been responsible for, or even known about, any such structure. Any such structure would more likely have been the responsibility of the principal contractor doing the work on the site. Accordingly, I accept his evidence in this regard.
Third, and important, Mr Cox gave evidence that he noted that the warning bar was marked with a sign indicating that it related to a side road. It either said “caution on side road” or “low bridge on the side road”. Although he did not specifically say that the warning bar was close to the entrance under the footbridge, that was the tenor of his evidence. Further, it was plain that he considered at the time that passing under that warning bar was relevant to his judgment in relation to the footbridge. That would only be reasonable if the warning sign was in the location of the footbridge.
In those circumstances, as Mr Cox approached the turn off from Stanely Street, Mr Cox was faced with the decision whether to proceed under the footbridge or not.
When he reached the footbridge, the following events occurred.
First, he observed Mr Arnold’s vehicle turn into the driveway and navigate its way under the footbridge without incident. He observed that Mr Arnold’s vehicle had only a small margin for error. I refer to paragraph [12] above. In my view, it is difficult to imagine that an experienced truck driver would not have known the difference between 200mm and 2cm. Further, a margin of 2cm would have been virtually invisible and further, if the clearance had been so close, Mr Arnold’s vehicle should have struck the footbridge in the way that Mr Cox’s vehicle did. In my view, it is much more likely that the clearance visible to Mr Cox was of the order of 200mm. What is relevant is that he observed Mr Arnold’s vehicle pass under the footbridge without incident, though the margin was not large.
Second, Mr Cox did not know the height of his vehicle with its load and was aware that it might not be the same as Mr Arnold’s vehicle.
Third, Mr Cox did not observe the 4.5m clearance sign as I have found already.
Fourth, Mr Cox was not warned by on-site traffic controllers that he might have difficulties in passing under the footbridge.
There is a fifth consideration which the respondents urge on me as relevant. The respondents contend I ought to find that Mr Cox did not strike the warning bar as he entered the driveway under the footbridge and that if he had, he would have been able to stop the truck in time to prevent the collison with the footbridge.
Two distinct issues arise: whether I should make the findings sought and, if so, whether reliance on those findings is open to the defendants on the pleadings.
As to the first, the evidence strongly supports the finding that Mr Cox did not strike the warning bar under the footbridge. He gave evidence that he did not strike it.[20] He was not challenged on this and there was no evidence to contradict his evidence. Further, it is likely that if he had hit the bar, not only would he have heard it, but others would have as well. The appellant did not seem to resist the making of this finding.
[20] TS1-100.9 to .38.
More contentious is the respondents’ submission that I ought to find that if he had struck the warning bar, he would have had time to stop the vehicle. That finding could only be made as an inference from other facts. Ms Sorbello submitted it would unfair of me to draw such an inference on the trial record (assuming it was open to do so), because that issue was not raised on the pleadings, nor litigated at trial.
I disagree. The relevant paragraphs of the pleadings appear in paragraphs [19] to [22] above. They are not particularised except for the rather broad particulars to the Mater’s allegation about excessive speed. By leaving the allegations unparticularised, neither party confined the other to a specific case. So long as the findings sought by the respondents can fall within the scope of the broad issues joined on the pleadings, the issue could have been raised at trial and can be raised on this appeal. In my view, the issue which the respondents seek to raise does fall within the scope of the broad issue joined on the pleadings. Driving at a speed which would permit the truck to have been stopped if the warning bar was struck falls comfortably within the scope of the broad issues of maintaining proper control over the truck and not driving at excessive speed.
I am fortified in that view by what happened at trial. Counsel for the respondents at trial led evidence that Mr Cox did not hit the warning bar. There was no objection. Counsel for the Mater cross examined about where Mr Cox was looking as his vehicle entered under the footbridge and he gave evidence he was observing the corner of the container as it passed under the side of the footbridge facing the road. Accordingly, while the speed of the vehicle was not specifically raised, evidence was led which turned on the care (or lack thereof) with which Mr Cox passed under the footbridge.
Having reached that conclusion, I find that Mr Cox did have such control of the truck that he could have stopped in time to prevent the accident if he had struck the warning bar in front of the footbridge. The warning bar appears from the photographs tendered at trial to be at least 50cm from the side of the footbridge facing the road. Further, Mr Cox gave evidence that the truck was moving a little over walking pace. That evidence must also be considered in light of his other evidence that he was watching the upper corner of the container as it entered the footbridge. It is difficult to accept that he would be doing so yet moving at a speed which would have prevented him stopping if it looked like the container was going to strike the footbridge, much less if he had had earlier warning from the warning bar. A fortiori where it was common ground that the accident occurred when the truck struck the inside face of the footbridge (meaning Mr Cox had a little more time to stop the vehicle before it caused the damage which occurred: whether this is analysed from the perspective of duty or caustion is moot).
It can be accepted that Mr Cox should not have drawn any comfort from the (relatively) miniscule clearance achieved by Mr Arnold’s vehicle in making his decision to proceed under the footbridge. His evidence that “clearance is clearance” was glib. It can also be accepted that he did not know how high his load measured, nor observe and rely on the clearance 4.5m sign on the footbridge itself. However, there was more to this case than just those matters:
(a)While he did not know the height of his load, he did pass without difficulty under a warning bar which was marked in a way which reasonably lead to the conclusion that it related to the clearance under the footbridge.
(b)When he turned into the driveway, he did not proceed as if he had no reason for caution. Rather, he proceeded at a speed, keeping a lookout and controlling his truck in a manner which permitted him to observe the highest point of his load as it passed under the external side of the footbridge.
(c)He also passed under the warning bar located outside the footbridge without incident.
(d)I am unpersuaded that if he had observed difficulties with the top of the container as it entered under the footbridge, he would not have been able to stop. A fortiori if he had struck the warning bar.
(e)Added to that is the fact that no one from traffic control had warned him about clearance, nor that he should take a different route.
Mr Cox therefore had reasonable grounds to believe he would pass under the footbridge without difficulty. The system designed to sound the alarm that clearance was inadequate did not deliver any warning. He nonetheless took care to check that he was passing safely until the highest part of his load had started to pass under the footbridge without incident.
Taking all these matters together, I find that the appellant fails to establish that Mr Cox breached his duty of care by failing to take the precautions against the risk of harm which was pleaded by the appellant at trial. I recognise that much of the above reasoning assumes that Mr Cox reasonably relied on the accuracy of the warning bars and signs which he observed. However, it was not submitted that he could not so rely. Further, there was no characteristic of those indicators I could identify which justified the conclusion Mr Cox did not reasonably assume their accuracy.
What the evidence discloses in my view is that the only reason why the damage occurred was because, for some reason, the internal edge of the footbridge was lower than the external edge, and lower by a sufficient amount to lead to the impact with the container on Mr Cox’s vehicle.
In all those circumstances, the Mater needed to demonstrate that Mr Cox’s duty of care required him to take precautions against the footbridge being sufficiently inconsistent in height as to cause the container to strike it, despite passing safely under the warning bar and the outside edge. No such case was advanced, and I am not persuaded it would have succeed in any event.
First, this would have required Mr Cox to assume that he could not rely at all on the warning bar in passing under the footbridge. If that were generally true, it would render the warning bar useless. The point of such a device is to warn if there is a risk.
Second, it would have required Mr Cox to take precautions to avoid the risk of damage from some inconsistency in the clearance of the footbridge once he entered the short tunnel it created. But one wonders how this ever could have been safely done. He would have had to watch the container for clearance with vigilance which would have carried the risk of not watching where he was going.
Third, it would have required Mr Cox to act on the assumption that the underside of the footbridge or the roadway were materially inconsistent. However, modern structures are, ordinarily at least, square and level. In the absence of some reason to suspect material inconsistency, it was a reasonable assumption for him to proceed.
The appeal is dismissed.