SWARBRICK EXCAVATING (CHRISTCHURCH) LTD V TRANSIT NZ CA CA156/05

SWARBRICK EXCAVATING (CHRISTCHURCH) LTD V TRANSIT NZ CA CA156/05 3 November 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA156/05BETWEEN SWARBRICK EXCAVATING (CHRISTCHURCH) LIMITED Appellant AND TRANSIT NEW ZEALAND Respondent Hearing: 20 June 2006 Court: Chambers, O'Regan and Robertson JJ Counsel: I G Hunt and K Ross for Appellant P M James for Respondent Judgment: 3 November 2006 at 10 amJUDGMENT OF THE COURT A The appeal is dismissed. B The appellant must pay to the respondent costs of $6,000, plus usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Chambers J)Warning signs on a low level bridge[1] On a Saturday morning in November 2003, a truck bearing an excavator was driven up the northern side of the Waimakariri River along an informal gravel road. The driver endeavoured to travel under a motorway bridge spanning the river. His load was too high, causing the excavator to strike the first structural beam on the eastern side of the bridge. The impact of the crash caused extensive damage to the bridge, requiring its partial closure and the installation of a new stressed concrete beam. [2] The driver of the truck was an employee of Swarbrick Excavating (Christchurch) Limited, the appellant. Transit sued Swarbrick for the damage to its bridge, claiming that the damage resulted from the negligence of Swarbrick's driver. Swarbrick defended the claim on a number of bases. One defence was that its driver had not been negligent. Another was that Transit had been contributorily negligent, with the consequence that its damages should be reduced. Swarbrick alleged that Transit should have erected signs, warning that the bridge was low level. Indeed, Swarbrick counterclaimed for the damage to its excavator, truck and trailer. It asserted that Transit owed a duty of care to the users of the informal road, which duty it had breached by its failure to erect warning signs. [3] The case came before Panckhurst J. He found that Swarbrick's driver had been negligent and that his negligence was the sole cause of the accident. He found no contributory negligence on Transit's part. Swarbrick's counterclaim failed:Transit New Zealand Limited v Swarbrick Excavating (Christchurch) Limited HC CHCH CIV-2004-409-002088 29 June 2005. Swarbrick now appeals – but only on one ground, namely the judge's finding in relation to contributory negligence.Issues on the appeal[4] Two issues arise on the appeal relating to contributory negligence. [5] The first issue is: did the judge correctly apply the law relating to contributory negligence? Mr Hunt, for Swarbrick, submitted that the judge had erredin principle when assessing the defence of contributory negligence by importing a requirement that Swarbrick establish that Transit owed a duty of care to users of the informal river road, which it had breached. [6] The second issue is: did the judge properly consider all the relevant evidence on the topic? Mr Hunt's essential submission in this regard was that the judge had "unnecessarily confined his consideration of appropriate warning signs to vertical clearance signs, contrary to the pleadings and the evidence". [7] We shall consider the issues in turn.Did the judge correctly apply the law relating to contributory negligence?[8] Mr Hunt submitted that the judge, in determining whether or not Transit had been contributorily negligent, wrongly imported "a requirement that Swarbrick establish that Transit owed a duty of care to users of the informal river road". Such a test, Mr Hunt submitted, was contrary to well-established authority. In this regard, we need cite only one authority, the first to which Mr Hunt referred us, as we accept that the principle is clear. Lord Denning MR in Froom v Butcher [1976] QB 286 (CA) said at 291:Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a man's carelessness in looking after his ownsafety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself. (Emphasis in the original.)[9] Mr Hunt submitted that Panckhurst J had failed to approach the question of contributory negligence on that basis. Rather, the judge had looked to see whether Transit owed a duty of care to others, which it had breached. The paragraph said to evidence this erroneous reasoning was [46], the first paragraph under the heading of "Contributory negligence":My finding that there was no obligation upon Transit to place vertical clearance signs on the bridge, effectively disposes of this allegation.[10] That paragraph must, however, be seen in context. It follows a section of the judgment where the judge had been considering "what was the effective cause of the accident". The judge had concluded that the sole cause of the accident was the driver's negligence in endeavouring to drive beneath the bridge when there was insufficient vertical clearance for him to do so. The judge went on at [43]:Put bluntly, it was his obligation as the driver of a truck bearing a high load to ensure that sufficient clearance was available. To proceed on the assumption that if the clearance was less than 4.25 m there will be a warning sign, was foolhardy. This was not a normal highway or road, with a fixed road surface which guaranteed a constant extent of clearance between the road surface and the underside of the bridge. This, I think, should have been apparent to any reasonable and careful user of the river road on the basis of his or her appreciation of the river berm environment. The informal roads are self-evidently just that. While any reasonable user would understand and appreciate that the normal road rules applied to them, they would equally understand and appreciate that the area is one where special care is required. For obvious reasons there were and are no road markings, nor the normal array of road signs which are to be found on a formal roadway.[11] Given the judge had found that the sole cause of the accident was the driver's failure to check there was sufficient vertical clearance, there was obviously little else to say on the next topic to which the judge turned, namely contributory negligence. Contributory negligence is all about apportioning responsibility for damage in circumstances where the person suffering damage has done so "as the result partly of his [or her] own fault": Contributory Negligence Act 1947, s 3. [12] We do not accept that the judge erred in the test he applied. He simply concluded there was no fault on Transit's part; therefore, contributory negligence was not available as a partial defence. [13] The first ground of appeal fails.Did the judge properly consider all the relevant evidence on the topic?[14] Mr Hunt's second complaint was that the judge concentrated on the question of whether Transit was at fault in failing to place vertical clearance signs on or near the bridge. Mr Hunt complained that this focus overlooked both Swarbrick'spleadings and other evidence. Mr Hunt said there was, for instance, no reason why a sign saying "Low bridge" could not have been erected. [15] We see nothing in this point. It was obvious to anyone driving on the riverbed that there was limited clearance between the riverbed and the underside of the bridge. Indeed, the driver himself conceded that he knew the bridge was a low one. So a sign saying "Low bridge" or "Low underpass" would have told him nothing he did not already appreciate. That is presumably why the judge concentrated on whether Transit should have erected a sign specifying the actual vertical clearance. But, as the judge found, the difficulty with such a sign was that the amount of vertical clearance was consistently changing as the gravel base shifted and was graded. [16] It is extremely significant, as the judge found, that the area in which Swarbrick's driver was driving was not a formal road. Drivers cannot in such an area as this safely assume anything from the absence of warning signs. [17] What also weighed with the judge was the large number of bridges Transit owned – 850 in Canterbury and the West Coast alone: at [35]. Many of those bridges cross informal river roads. Transit's policy was not to put vertical clearance signs or other warning signs on any of them. If this bridge should have had a warning sign, then all the others would have to have them too. For as the judge said at [40]:Either it has a policy to provide signs on its bridges for the benefit of the users of informal river roads, or it does not. Otherwise there will be obvious scope for drivers who have used informal roads serviced by vertical clearance signs in one area to expect their presence in another. Put another way, expectations will exist if Transit is to provide signs in relation to even some of its bridges.[18] We consider the judge's reasoning in that respect to be correct. Mr Hunt's submission that $340,000 worth of damage to this bridge could have been avoided by the erection of a sign costing $500 is simplistic. [19] In our view, the judge did not approach the evidence wrongly. In the circumstances of this case, he was fully entitled to find that Transit had not beencareless in looking after its own property. He was entitled to find that this damage occurred solely because Swarbrick's driver failed to check that his high load could safely pass under this low span of the bridge.Solicitors: Young Hunter, Christchurch, for Appellant Saunders & Co, Christchurch, for Respondent