JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA 
IN CIVIL 

LOCATION	:	PERTH 

CITATION	:	COOPER -v- SHIRE OF LEONORA [2007] WADC 73 

CORAM	:	EATON DCJ 

HEARD	:	8-10 FEBRUARY 2006, 2 MAY 2007 

DELIVERED	:	22 MAY 2007 

FILE NO/S	:	CIV 3393 of 2002 

BETWEEN	:	ROBERT JOHN COOPER
Plaintiff
 
AND
 
SHIRE OF LEONORA
Defendant 

Catchwords:
Torts - Negligence - Motor vehicle accident - Liability - Liability of local government - Unsealed road - Obligation to provide signage - Assessment of damages 
Legislation:
Nil 
Result:
Judgment for the plaintiff in the sum of $60,000 

Representation:
Counsel:
Plaintiff	:	Mr T H Offer
Defendant	:	Mr J Eller 
Solicitors:
Plaintiff	:	Vertannes Georgiou
Defendant	:	John Eller 

Case(s) referred to in judgment(s):

Brodie v Singleton Shire Council (2001) 206 CLR 512

1	EATON DCJ:  The plaintiff has sued the defendant seeking damages for injury and loss suffered in a motor vehicle accident which occurred on Friday 18 January 2002 at about 8.30 am on the Malcolm‑Kookynie Road within the Shire of Leonora in Western Australia.  At that time the plaintiff and a work colleague were travelling in a 75 Series Toyota Landcruiser 4‑wheel drive, tray back utility.  The plaintiff was driving and his work colleague, Stanley Robert Nowotny, was seated beside him in the passenger's seat.
2		Both the plaintiff and Mr Nowotny worked for a business called "Aquacrete Mining Services".  The plaintiff was employed as a sales representative and Mr Nowotny was, at the time, the area manager for that business.  The plaintiff commenced that employment on 23 July 2001.  In January 2002 Mr Nowotny visited the Goldfields region to undertake an appraisal of the plaintiff's performance.  He was going to do that by accompanying the plaintiff in the course of his work and observing his general conduct and interaction with clients.
3		Aquacrete Mining Services sold, inter alia, a gypsum based product for use in the mining industry.  The plaintiff's job was to represent the business in the Goldfields region of Western Australia, to provide quotes for supply and installation of the product and to supervise installation if required.  To enable him to undertake his work he was provided with the vehicle in which he and Mr Nowotny were travelling on the morning of 18 January 2002.  It was a vehicle which was compliant with all specifications requisite for use at mining sites both on the surface and underground.  Consequently, it was fitted with, inter alia, rollbars.  The plaintiff had worked in the mining industry as an underground miner in Tasmania, Queensland and Western Australia over several years.  He was trained, experienced and well known in that field.  Those capacities assisted in his work for Aquacrete Mining Services.
4		The plaintiff said that he and Mr Nowotny left Kalgoorlie, where the plaintiff was based, on 14 January 2002 taking some of the company's product in 20 kilo bags on the tray of the utility to a mine site in Leonora.  It was unloaded there.  From there they drove to Leinster visiting another mine called "Bronze Wing".  At about 5.30 am on Friday 18 January 2002 they left Bronze Wing travelling to Leonora.  It was necessary to stop at Leonora to collect an item of clothing left by the plaintiff at a local hotel on a previous occasion.  The plaintiff drove for the first half of the journey from Bronze Wing to Leonora and Mr Nowotny drove for the remainder.  The road from Bronze Wing to Leonora was wet.  There was drizzling rain from time to time.  Upon their arrival at Leonora the sky was overcast but there was no rain.
5		As to the weather Mr Nowotny said: 
"It was raining when we left Bronze Wing and rained for a fair bit of the way.  The road was pretty wet.  I think from memory we got to Leonora, it had stopped raining.  It wasn't raining from Leonora onwards, so there was a bit of moisture around."
6		At Leonora they collected the item of clothing, had breakfast and a cup of tea and then the plaintiff drove.  They were travelling towards Laverton.  The road was sealed.  Their ultimate destination was Kalgoorlie but the plaintiff wanted to show Mr Nowotny a mine that was on the Malcolm‑Kookynie road.  In consequence, they continued along the Leonora‑Laverton road for about 20 kilometres before turning right onto the Malcolm‑Kookynie road.  That road was sealed only for a kilometre from the turnoff and thereafter was unsealed.  When the two men left the Leonora‑Laverton road it was evident to them that there had been rain in the area as, although there was no surface water, the road was damp and there was no dust as would normally be the case if the road were dry.  
7		Both the plaintiff and Mr Nowotny gave an account, in their evidence, of the moments leading up to the accident on the Malcolm‑Kookynie road.  The plaintiff said there were no visible puddles or dampness and that the weather was overcast.  Mr Nowotny said of that section of road that you could see that there had been rain as the road was damp and that there was no dust.  The plaintiff said that his speed varied, ranging from 60 kph to 90 kph.  He mentioned a dip in the road causing him to slow to 50kph or 60 kph.  There was a sign indicating the dip.  At its base was a trickle of water.  Mr Nowotny referred to the dip as a "fairly deep culvert" in which there was no water.  Its purpose, he said, was as a wash‑away for the railway line.  Once through the dip the plaintiff accelerated to 70kph–80kph.
8		Some distance further along the road the plaintiff negotiated a right‑hand corner followed by a straight section then a left‑hand corner.  He said that as he was coming out of the left‑hand corner the back of his vehicle started to veer to the right.  He attempted to correct that by steering into it.  The back of the vehicle then started to veer to the left.  Again he attempted to correct the slide in the same manner.  The vehicle then began to veer right again.  When asked what happened next he said: "the next minute the left‑hand side of the vehicle started to go in and from then on the memory is there of, yes, it sort of came to a sideways position and then just continued to roll and how many times it rolled, I wasn't counting.  I don't know". 
9		Mr Nowotny's recollection was that immediately prior to the rollover the vehicle had negotiated a slight bend and was on a straight road when the rear of the vehicle swung to the left.  He said that it was apparent that the plaintiff had over‑corrected causing the vehicle to slide in the other direction.  The plaintiff again over‑corrected on two more occasions until the rear left‑hand wheel made contact with the windrow.  He said that the vehicle then "shot out into the middle of the road" and started to roll.  It rolled four times before ending up on its wheels facing in the direction from which they had come.  He was sure that the plaintiff had completed the corner at the time when the rear wheels swung out.  The road surface looked like normal gravel to him.  
10		The plaintiff said of the road surface: "when all this was happening the road surface in front of me had like had a – just like a – it had been brushed up with polish and a shine to it".  He had been on that road on one occasion some 18 months prior to the accident.
11		In cross-examination the plaintiff said that the condition of the road prior to the point of the accident was quite good.  He had, he said, considerable experience on gravel roads over the years.  He said that, immediately prior to loosing control of the vehicle, he looked at the speedometer to note that his speed was approximately 80kph.  It was, he said, the last thing he saw.  The plaintiff confirmed that the "shiny" stretch of road extended for some four to five hundred meters and was darker in colour. 
12		In cross-examination Mr Nowotny said that he thought that the speed of the vehicle prior to the accident was about 80kph – 90kph.  He described the road at the point where the plaintiff got into difficulties as being "a greasy straight stretch of road".  To him it looked like a normal gravel road.  He said: "it was gravel but there had to be a reason why we all of a sudden went into that slide and into the spin when we were travelling on a dead straight piece of road".  He said further: "it looked like a normal gravel road to me and it definitely happened in a straight stretch".  He, also, was experienced in driving on gravel roads.
13		The plaintiff returned to the scene of the accident some seven months later, taking with him a video camera.  He made a video‑tape recording.  That video‑tape, with sound muted, became exhibit 1.  
14		Having watched the video‑tape it did establish that, by the time it was taken, there was a newly installed sign on the left‑hand side of the road leading from the turn‑off indicating in words and symbols that the road surface was slippery "when wet next four km".  The video‑tape depicted what was said to be the broken windscreen of the plaintiff's vehicle lying in the scrub on the side of the road.  It was also said to portray what was said to be that stretch of road where the plaintiff lost control of his vehicle.  
15		On the day the video‑tape was taken the road portrayed was indeed a gravel road with windrows on either side.  The road appeared dry although its surface showed the effect of vehicles having passed over it in wet conditions.  The shiny surface spoken of by the plaintiff was not evident.  The central part of the carriageway appeared to be more worn or compacted as one might expect.  Gravel roads are rarely uniform, being constantly affected by passing traffic and weather conditions.  As was to be expected, the edges of the road surface were less compacted, with loose gravel evident.  
16		The video‑tape, insofar as it portrayed the road surface where the plaintiff lost control of its vehicle on 18 January 2002, depicted a gravel road that was generally unremarkable.  In any event, given that the video‑ tape was taken some seven months later, it was almost impossible to gauge the degree to which the video‑tape reflected the state of the road on the day that the plaintiff and Mr Nowotny came upon it, if at all.  Certainly, it seems, that a road sign had been erected at a point sometime prior to the subject stretch.  What works might have been carried out in the intervening period and what changes might have been wrought by reason of weather and usage are not known.  The video‑tape, to the limited extent that it is probative, tends to be more consistent with the description given by Mr Nowotny than that of the plaintiff.  
17		In any event, putting aside the video‑tape, I was inclined to place more reliance on Mr Nowotny's account given his demeanour and apparent candour.  That is not to say that I took an adverse view of the plaintiff's evidence in that regard but rather to say that I regarded Mr Nowotny's evidence as being more acute.
18		At the time that the video‑tape was taken the plaintiff picked up a small portion of road surface material from the centre of the road in the vicinity of the area where he had lost control of the motor vehicle.  That sample was placed in a small clip lock plastic bag.  It was eventually delivered to William Jack Apgar, an engineer, in December 2005.  He said that there was about 10 grams of material which he analysed.  By way of qualification he said that he was a chartered professional engineer and a member of the Forensic Engineering Society of Australia.  When asked as to his expertise in soil analysis he said that he had learnt, as a student, basic technique for analysing soils.  Upon receipt of the sample collected by the plaintiff he used standard field testing techniques.  It was initially evident, he said, that there were some small stones which proved to be gravel.  He removed those from the sample.  The remainder, he said, comprised coarse fine to medium sand or silt without clay.  The fine sand or silt easily mixed with water and would turn to a fluid or slurry in an unconsolidated state.  He ventured the opinion that if the whole of the road surface were to be comprised of such material mixed with water there would be a reduction in the frictional properties of the surface.  
19		I found the evidence of Mr Apgar quite unhelpful.  The limitations of his evidence arose from the fact that he had been provided with a 10 gram sample of mixed material said to have been picked up from the middle of the roadway near where the accident occurred some seven months after it occurred.  There is no basis, in my view, for any conclusion, expert or otherwise, as to the general nature of the road surface at about 8.30am on 18 January 2002 when the plaintiff and Mr Nowotny passed over it in their vehicle let alone any conclusions as to how that vehicle might have behaved when it did.  Mr Apgar had not been to the site, had not seen the vehicle, had been engaged nearly four years after the event to analyse the sample taken seven months after the event, that sample having been held in unknown circumstances in the interim.  He had seen the video‑tape which became exhibit 1.  The conclusion that he had attempted to draw was drawn from a part of the sample after the gravel had been removed.  He admitted in cross-examination that he had never before been asked to analyse a soil sample in such circumstances.  My conclusion is that the belated attempt to introduce expert evidence as to the nature of the surface of the road was conjectural and unconvincing.
20		The plaintiff called Phillip Carl English of Beechboro who had, several years ago, worked with the plaintiff in about 1998.  Mr English said that in October 2005 he was working for Lightning Nickel at Kambalda and earned approximately $108,000 per annum.  He explained that he chose to work for that company in the mining industry because the job did not involve fly‑in, fly‑out arrangements but enabled him to live with his family in a house at Kambalda near his work.  He explained that if he had worked away from home he could have earned a further $30,000 gross per annum.  
21		At the conclusion of the evidence of Mr English counsel for the plaintiff indicated that he would be, in due course, closing the plaintiff's case subject to the calling of medical evidence.  As a matter of convenience, on the afternoon of 9 February 2006 the defendant opened its case and, interposing a witness, called Richard Monroe Mirams who was a resident of Leonora and the defendant's works supervisor.  Mr Mirams' evidence was not completed on that day and, for reasons which I need not now go into, the trial was adjourned for some considerable time.  It resumed on 2 May 2007.  
22		During the adjournment, pursuant to the terms of an order made by me on 9 February 2006, the defendant filed an amended defence, the substance of which was to plead that at all material times the defendant "had in place a system of maintenance and inspection that was adequate in the circumstances given its budgetary constraints".
23		Upon resumption of the trial, counsel for the plaintiff announced that reports from two orthopaedic surgeons, Mr P H Hardcastle and Mr I J Skinner would be tendered by consent.  Counsel for the defendant confirmed that that was so.  Effectively, counsel for the plaintiff had closed the plaintiff's case subject to the filing of those documents.  
24		The defendant again called Richard Monroe Mirams who confirmed that he was the works supervisor for the Shire of Leonora having worked for the Shire for 27 years, seven of those years as a grader operator and 20 years as the works supervisor.  The Shire had received a grant for the maintenance of roads and, in consequence, on a particular day (which he could not precisely recall) in 2002 he and the Shire Engineer set out in a Shire vehicle to inspect the Malcolm‑Kookynie Road.  He confirmed that it was evident, as they travelled on that road, that it had rained over‑night.  They came across a motor vehicle which had apparently rolled and come to rest back on its tyres.  There was a passenger, no doubt the plaintiff, sitting in the vehicle and a man standing nearby.  The Shire Engineer made a call to the Shire office to ensure that Leonora Hospital had been contacted and that medical assistance was on its way.
25		Mr Mirams thought that the road surface at the place where the vehicle had come to rest was about 30 foot wide.  The vehicle was on the left‑hand side facing north.  The only unusual feature of the road surface, so far as he could recall, was the presence of extra wheel tracks where other vehicles had stopped.  He commented that the road surface was natural material being loose dirt which he classed as gypsum rather than sand.  He could not recall there being any puddles.  
26		Mr Mirams identified a public liability claim form completed by him dated 31 December 2002 (Exhibit 4).  That document had been completed by James Gregory Epis, the Chief Executive Officer of the Shire of Leonora and signed by Mr Mirams in his capacity as works supervisor, declaring that the statements and answers therein were true and correct in every particular of the claim.  It is clear from the body of the document that the claim form was completed and forwarded to the Shire's insurers as the result of the Shire receiving a letter from the plaintiff's solicitors dated 18 December 2002.  
27		Mr Mirams said that the Malcolm‑Kookynie Road was graded at least four times a year and some times more often depending upon the impact on the road surface of rain and traffic.  The Shire, he said, had 1,500 to 1,600 kilometres of roads in use, mainly unsealed.  The Shire relied, for information as to road conditions from time to time, on mail truck drivers, local pastoralists, Shire employees, fuel train drivers and the general public.  
28		In cross‑examination Mr Mirams explained that he attempted to inspect the more well travelled roads within the Shire at least once each month.  He classed the Malcolm‑Kookynie Road as being in that category.  He explained that the sheeting of a road is the spreading of gravel on the road surface.  He was unable to say when the Malcolm‑Kookynie Road was last sheeted but indicated that it was rare for the Shire to sheet an entire road.  More commonly the Shire would sheet sections of a road where puddles had appeared.
29		In examination‑in‑chief Mr Mirams explained that there is a large lake system which crosses many roads within the Shire and within adjoining Shires.  In cross‑examination he said he was familiar with the phenomenon of road surfaces occasionally looking shiny.  Mr Mirams identified the stretch of road on which the plaintiff's accident occurred as being within the lake area or part of the lake system referred to.  He described those areas as having fairly uniform soil conditions comprising gypsum material.  In cross‑examination he accepted that he knew that the particular section at which the plaintiff's accident occurred was prone to being slippery when wet commenting that it was "in a lake area".  He said that there had never been, to his knowledge, an accident in that section and that there were 10 or 20 other sections within the Shire which he also knew to have a tendency to become slippery when wet.  It was clear from his evidence that he knew, prior to the plaintiff's motor vehicle accident, of the danger posed by that section of the road, along with other road sections within the Shire affected by the lake system, to motorists.  He made the point that 90 per cent of the Malcolm‑Kookynie Road would not be slippery even when wet.  The Shire of Leonora is ordinarily fairly dry.  The particular area which he acknowledged as being prone to being slippery when wet would, he said, be quite safe when dry.
30		The defendant also called the Shire Chief Executive Officer, Mr Epis.  He confirmed that he was familiar with the Malcolm‑Kookynie Road and said that it was probably constructed with local material and sheeted in parts with gravel.  He confirmed that there was 1,600 kilometres of unsealed road within the Shire.  Those roads, he said, are generally constructed from local material which might, in some cases, be gypsum.  He confirmed that the section of the Malcolm‑Kookynie Road where the plaintiff's accident occurred formed part of the lake system to which Mr Mirams had made reference.  He agreed that those sections were prone to being more slippery than other sections because of the thin layer of gypsum present.  
31		The Shire of Leonora has its own plant and equipment but has in the past and still has great difficulty in finding experienced and competent operators to drive graders involved in road maintenance.  Mr Epis explained that regularly time, money and effort would be spent in the training of a grader operator only to find that when a degree of competence was achieved the operator would leave for better paid work in the mining industry.  For that reason the Shire employed "C E and E M McLean" on a two year contract to undertake the bulk of road grading within the Shire.  A bundle of dockets were produced and became Exhibit 5.  Those documents indicate that maintenance grading was undertaken by "C E and E M McLean" on the Malcolm‑Kookynie on the 3, 4, 9, 10 and 11 December 2001.  They indicate also that the Malcolm‑Kookynie Road was again graded following rain on 15 and 16 December 2001.
32		The Shire placed an order on 11 July 2002 for, inter alia, four "slippery when wet" traffic signs.  Mr Mirams confirmed that one of those signs was placed immediately prior to the scene of the plaintiff's accident on the Malcolm‑Kookynie Road to draw attention to that section.  Individual signs, he said, cost about $50 and the total cost of installation of a sign would amount to between $300 and $400.  Mr Epis confirmed that a "slippery when wet" sign had been ordered for the section of road at which the plaintiff's accident occurred and commented that that section was one among numerous sections throughout the Shire where those signs could have been placed.  
33		It is the case that the Shire of Leonora has, within its boundaries, approximately 1,600 kilometres of unsealed road.  Some of those roads are well‑travelled and others are not.  The presence of mining and exploration and logistical support for those operations could lead to heavy use of a particular road.  Other roads might be predominantly used, to a lesser extent, by local pastoralists, mail and fuel run drivers.
34		The evidence suggested that the portion of the Malcolm‑Kookynie Road at which the plaintiff's accident occurred was one of many portions of road surface throughout the Shire which are affected by the lake system spoken of by both Mr Mirams and Mr Epis.  The surface of that particular portion of the Malcolm‑Kookynie Road appears to have been gypsum in nature.  That section may have been sheeted with gravel but that seems to have occurred some considerable time prior to the accident.  Certainly, the section was graded weeks prior to the accident.  The difficulty for those supervising maintenance in a Shire such as the Shire of Leonora is that unsealed roads are prone, as already mentioned, to rapid change and deterioration in the surface depending upon rain and traffic.  A particular piece of road might, within a matter of hours, become quiet different, dangerous or unserviceable.  
35		Those experienced in outback unsealed roads drive according to road conditions at the time.  Driving in such circumstances requires particular vigilance and attention not only to the road surface and changes to it, but to the presence of wheel ruts, erosion, wash‑aways and holes.  Driving in such conditions requires that the driver be alert to changes in the colour of the road surface because a change in colour will, in all probability, indicate a change in the nature of the material used in the making of the road.  Different materials may react differently to the onset of rain and/or heavy traffic.  
The pleadings 
36		The plaintiff pleads that he lost control of his vehicle while travelling over a slippery section of road.  He pleads that he did so by reason of the negligence of the defendant which allowed vehicles to travel on that particular section when it was unsafe to do so by reason of the slippery surface.  He pleads that the Shire knew or ought to have known that the ground conditions of that section of road were such that when it rained the surface would become very slippery and pose a danger to vehicles travelling over it.  He further alleges that the defendant was negligent in that it failed to close that section of road following heavy rains on 17 January 2002, that it failed to seal or otherwise remedy the surface at that section to prevent it from becoming slippery following rain, that it failed to erect warning signs to alert users of the road that the section was hazardous and slippery when wet and that it failed to warn users of the road that they should reduce speed prior to travelling over that section. 
37		In response the defendant pleads, firstly, an immunity by virtue of s 9.57 of the Local Government Act 1995 and, secondly, that it had in place a system of maintenance and inspection that was adequate in the circumstances given its budgetary constraints.  The defendant denied each and every allegation of negligence in the plaintiff's statement of claim.  Further, pleads the defendant, if the road was slippery (which was denied) the plaintiff should have driven according to the prevailing conditions and that warning signs in those circumstances are not required.  
38		The defendant claims that if it was negligent (which was denied), there was contributory negligence on part of the plaintiff in that he failed to take care of his own safety by driving in a speed and manner which was dangerous in all the circumstances, that he failed to exercise a degree of care required of a diligent motorist in those circumstances and that he drove his vehicle knowing that it was dangerously overloaded.  There was no evidence that the plaintiff's vehicle was overloaded.  That aspect of the allegation of contributory negligence was not pursued by counsel for the defendant. 
The law
39		Counsel for the defendant, in final submissions, submitted that I should decide the case according to ordinary principles of negligence.  (Brodie v Singleton Shire Council (2001) 206 CLR 512).  He expressly abandoned the pleading based upon s 9.57 of the Local Government Act 1995.  
40		In Brodie v Singleton Shire Council Gaudron, McHugh and Gummow JJ said at p 577:
"The duty which arises under the common law of Australia may now be considered.  Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff.  Where the state of a roadway, whether from design, construction, works or non‑repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its power within a reasonable time to address the risk.  If the risk be unknown to the authority or latent or only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.  The perception of the response by the authority calls for … a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority.  The duty does not extend to ensuring the safety of road users in all circumstances.  In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case."
41		It was clear from the evidence of both Mr Mirams and Mr Epis that each knew, prior to the plaintiff's accident, of that particular section of the Malcolm‑Kookynie Road as being a section affected by the lake system characterised by a thin layer or crust of gypsum.  Both accepted that that section, along with other similar sections within the Shire, was particularly prone to being slippery when wet.  Mr Mirams commented, as already mentioned, that there had never been an accident there to his knowledge.  The reaction of the Shire to the plaintiff's accident was to place a sign prior to the commencement of that section warning of the dangerous condition of the road when wet.  The fact of the matter is that the Shire knew of the dangerous condition of that section of road when wet prior to the plaintiff's accident but took no steps to warn motorists of the danger that it presented.  Mr Mirams commented that the danger of that section was well known to regular users of the road in any event and that rain was a relatively rare occurrence within the Shire which might, when it did fall, not fall on that section at all but rather on some other less dangerous portion of the road.  It was evident to both the plaintiff and his passenger, Mr Nowotny, that there had been rain in the area in which they were travelling over the night before.  That much was evident from the road surface although there were no puddles in the particular section at which the accident occurred.  The plaintiff was not a regular user of the Malcolm‑Kookynie Road having travelled it once before some 18 months prior.  He was not to know what was known to Mr Mirams and Mr Epis, that being that that particular section of the road was dangerous following rain and when still wet.  He would have known and been warned of that circumstance had there been a sign placed on the Malcolm‑Kookynie Road prior to the commencement of that section.  Had there been such a sign I infer that the plaintiff would have driven more cautiously than he did do and that the accident which did occur would have been avoided.
42		It is clear from the evidence that the Shire of Leonora is a Shire with responsibility for the maintenance of some 1,600 kilometres of unsealed road.  Some of those roads are infrequently travelled and some are reasonably well travelled.  Mr Mirams thought that the Malcolm‑Kookynie Road was a well travelled road.  Mr Epis thought that it was not particularly busy compared with other roads within the Shire.  I understand that a Shire such as the defendant has limited financial resources and must be careful in the deployment of those resources.  It is, however, obliged to take reasonable care so far as its roads are concerned.  It owes a duty to road users.  There was a risk to road users posed by the surface of the road on the section where the plaintiff's accident occurred when wet.  That risk was known to the Shire prior to the plaintiff's accident.  The proper discharge of the defendant's duty of care in those circumstances was to ensure that a sign warning of that danger was erected so that unsuspecting motorists might take appropriate measures.  It is true that it is important that drivers in the outback drive according to the conditions but some conditions, such as those encountered by the plaintiff, are not readily apparent.  The cost of a "slippery when wet" sign is about $50.  The cost of installation is between $300 and $400.  The lake system referred to by Mr Mirams and Mr Epis did affect the Shire's road system.  Those affected areas were known to the Shire.  It does seem to me that the proper discharge of the Shire's duty to road users involved the Shire ascertaining all of those affected areas and erecting appropriate warning signs.  It was not sufficient for the Shire to be reactive to a motor vehicle accident as it was in this case.  The cost of ascertaining affected areas and erecting warning signs was not, in my assessment, so substantial as to be prohibitive of the appropriate course of action.  I find that the defendant was negligent in failing to erect a warning sign to alert users of the road that the particular section was hazardous and slippery when wet.
43		As mentioned, the defendant pleads that, if it was negligent, there was contributory negligence on the part of the plaintiff in that he failed to take care for his own safety by driving in a speed and manner which was dangerous in all the circumstances and in that he failed to exercise a degree of care required of a diligent motorist in those circumstances.
44		The plaintiff said that his last recollection of the speed of his vehicle prior to the accident was that he was travelling at approximately 80 kilometres per hour.  Given that the maximum speed throughout the State on any road is 110 kilometres per hour and that the maximum speed generally applicable to main roads in built‑up areas is 60 kilometres per hour I regard 80 kilometres per hour as being a reasonable speed in all of the circumstances.  I accept, as a matter of fact, that the plaintiff was travelling at that speed immediately prior to the accident.  Mr Nowotny was cross‑examined about the plaintiff's manner of driving.  He accepted that if the road is wet one should drive according to the conditions and slow down.  He thought that the plaintiff was driving according to the conditions even though the accident did occur on what he described as "a greasy straight stretch of road".  He estimated the length of that particular stretch to be between 300 and 400 metres and to encompass the whole width of the road.
45		In my view, having regard to the evidence, the defendant's claim of contributory negligence is not made out.
The plaintiff's injuries
46		Immediately following the rollover the plaintiff found himself still in the driver's seat with the engine still running.  He was in pain and bleeding from the head.  He turned the engine off and was assisted by his passenger to move to the left‑hand side of the seat.  Clearly, help was needed.  Mr Nowotny was the more mobile.  As luck would have it a group of travellers arrived.  They drove Mr Nowotny back to a pastoral station within telephone range.  He was then able to call police and ambulance.  The ambulance arrived first and the plaintiff was transferred from his vehicle to it.  He was conveyed to Leonora Hospital suffering extreme pain around his neck, shoulder blades and right shoulder.  Later that day he was transferred by Royal Flying Doctor Service aircraft to Kalgoorlie Regional Hospital.  There he was provided with a neck brace and engaged in physiotherapy but was still in great pain.  He ultimately came under the care of Mr Philip Hardcastle, orthopaedic surgeon, upon being transferred to Royal Perth Hospital on 22 January 2002.
47		Investigations at Royal Perth Hospital showed an unstable spinal injury at C4/5.  Following discussions with Mr Hardcastle the plaintiff elected to undergo surgical stabilisation.  That procedure was performed on 23 January 2002.  It involved an anterior cervical total discectomy fusion with a right iliac crest Robinson type bone graft and stabilisation with a Matheys plate and locking screws.  There were no post‑operative complications and the plaintiff was discharged two days later to return to Kalgoorlie to await further review.  That review occurred on about 21 February 2002.  Mr Hardcastle reported some continuing mild neck pain with the plaintiff's main problem being his right shoulder which, he said, had probably sustained a contusion type injury.  Further x‑rays were arranged.  The plaintiff continued to demonstrate improvement following the surgery such that on 12 April 2002 Mr Hardcastle reported that he was continuing to experience some neck pain and headaches, his situation being aggravated as the result of sitting for long periods and sometimes by right‑sided neck rotation.  The right shoulder symptoms continued but were improving.  Mr Hardcastle reported that the plaintiff was continuing to make a good recovery and that he had been working full‑time having, by April 2002, returned to pre‑accident duties on a full‑time basis with no restrictions.  He expected that symptoms would continue and that there would be a gradual improvement in the longer term although, with respect to the shoulder, he was more circumspect.  Mr Hardcastle recommended a continuation of exercise and medication.
48		The plaintiff was also reviewed by another orthopaedic surgeon, Mr I J Skinner of Kalgoorlie, at the request of Mr Hardcastle.  At review by Mr Skinner on 5 April 2002 the plaintiff was reported to be making excellent progress with respect to his right shoulder but was still using Celebrex and Tramadol.  He displayed a greatly improved range of movement.  Mr Skinner expected continued improvement with the long term prognosis being "excellent".
49		On review on 6 June 2002 Mr Hardcastle reported that the plaintiff was experiencing pins and needles in the arms and a shuddering down his spine on an intermittent basis.  Blood tests were carried out and an x‑ray was taken.  He regarded both as satisfactory.  By October 2002 the pins and needles had reduced significantly but the plaintiff was still experiencing shoulder pain and intermittent neck pain.  At that stage Mr Hardcastle thought that no further treatment was required other than continuing medication.  The plaintiff was contemplating a trial of chiropractic treatment.  In January 2003 Mr Hardcastle's view was much the same.
50		The plaintiff was reviewed by Mr Skinner on 17 January 2003.  The plaintiff, at that time, expressed a desire to return to work as an underground safety officer having ceased work with Aquacrete.  Mr Skinner mentioned that the plaintiff continued to make progress.  He recommended acupuncture (to assist with residual pain), physiotherapy and an exercise programme.
51		Medical attitudes changed somewhat dramatically in mid 2003 and on 30 July 2003 the plaintiff underwent further surgery in the form of a fusion at C3/4.  Again there were no problems with the surgery and on 21 August 2003 Mr Hardcastle was able to report that the plaintiff was again making good progress.  On 17 October 2003 he reported that the plaintiff had found very good relief of his symptoms following the further surgery.  He was still experiencing some bilateral neck pain radiating to the base of his neck.
The plaintiff's work history
52		The plaintiff was born in Tasmania on 7 June 1957.  He will shortly be 50 years old.  He grew up in Queenstown, a predominantly mining community on the west coast of Tasmania.  Having left school after year 10 he had several varied jobs and then, at the age of 18 years, went underground in the mining industry to work as a labourer.  After about 2 years he became an underground truck driver and then a popperman.  He obtained experience in underground mining, in the use of machines underground and in drilling and explosives.  In the course of the next few years he acquired a range of skills in all facets of underground mining.  In about 1990 he was offered redundancy by the company for which he worked.  He took that opportunity and moved with his family to Gunpowder Creek, a copper mine in Queensland.  He worked there until July 1993 and then returned to Tasmania.  He again looked for work and considered Western Australia.
53		The plaintiff arrived at Kambalda, Western Australia in February 1994 and worked in the mining industry for a number of companies.  He ceased working as a miner in February 2001.  After a short break he applied for work with several companies and eventually commenced work on 23 July 2001 with Aquacrete selling a gypsum based product.
54		Following the motor vehicle accident the plaintiff continued to work for Aquacrete but later changed jobs.  When he gave evidence in February 2006 he said that he had been working as a safety adviser and trainer for the past 18 months.  He said that his initial return to work with Aquacrete was on light duties on 4 February 2002.  Those "light duties", continued until 30 October 2002 but, he said, his work really involved what he had been doing prior to the accident except for lifting.  Eventually Aquacrete offered him an alternate position as a warehouse administrator but he felt that, physically, he could not take on that job.
55		In October 2002 the plaintiff approached Advanced Personnel Management.  He completed computer courses in November and January 2003.  In February of that year he began studying for a certificate in occupational health and safety.  He obtained that certificate in November 2003.  In April 2003 he secured a work trial in the mining industry working on the surface doing personnel inductions, conducting training modules and cleaning up.  In October 2003 he obtained employment with a company supplying drilling products to the mining industry.  Unfortunately, that work involved lifting which he could not persevere with.  He returned to Advanced Personnel Management and enrolled in a diploma course in occupational health and safety.  He completed that course at night school in November 2004.  Following that he took a job with Barminco Pty Ltd as a health and safety co‑ordinator.  He continued in that occupation with difficulty and the help of analgesics.  He then found work with H S E Mining as a safety officer from 17 March 2005 to 2 October 2005.  That work ceased when the company ceased operations.  On 23 October 2005 he obtained a contract for a short period of work at Ravensthorpe.  At the time of giving evidence the plaintiff had obtained a job with Roche Mining on a fly‑in, fly‑out basis at the Argyle Diamond Mine.  The indicative salary was approximately $90,000 per annum gross working 12 hours a day, 8 days on and 6 days off.
56		In his most recent report Mr Hardcastle said that he had reviewed the plaintiff on 19 January 2006.  He reported that the plaintiff was then in full‑time employment as a safety officer.  His work duties included training people, computer work, attending meetings and field duties.  He had, at that stage, recently taken the job at the Argyle Diamond Mine.  Mr Hardcastle was of the view that no further investigations were warranted and that the plaintiff's treatment would involve continued self‑medication, occasional physiotherapy as necessary and the possibility of further cortisone injections so far as the shoulder was concerned.  He remained fit to continue in his duties as a safety officer.  The only long term restriction for work would involve avoiding heavy lifting with the right arm, avoiding the use of that arm above 90 degrees abduction and repetitive use such as pulling and pushing with the right upper limb.
57		Mr Hardcastle said that there was likely to be increased degenerative change both above and below the fusion which was unlikely to affect his long term work capacity doing light duties and would generally only affect the more physical aspects of his hobbies and domestic duties.  The prognosis for the shoulder was more guarded than for the spine.  There was some possibility of further surgery being required but before that option was considered Mr Hardcastle thought that further cortisone injections should be tried.
58		As to permanent residual disabilities in relation to the cervical spine he assessed the loss of cervical function at 30 per cent and a functional loss of the right shoulder at 10 per cent.
59		Mr Skinner last reviewed the plaintiff on 12 November 2003.  He then thought that the plaintiff's claim was capable of finalisation.  At that stage the plaintiff had completed the first part of his occupational health and safety course but had not completed the second.  Mr Skinner expressed the view that the plaintiff would be fit for full‑time work as an occupational health and safety officer in an unrestricted manner.  He noted that the plaintiff had always presented as a person keen to return to work and frustrated by his injury and problems associated with workers' compensation and his damages claim.  He thought that the plaintiff did not require any further treatment for the right shoulder and that the plaintiff would be left with a mildly reduced range of motion compared to the left.  He complained, at the time of review, of mild discomfort affecting the shoulder, in particular, at the extremes of motion and of pain radiating from the cervical spine across his shoulder and into his arm.
60		As to his present circumstances the plaintiff said that he continues to have a "constant" pain in the neck which he rated at 2 to 4 on a scale of 1 to 10 in terms of severity.  His neck pain, he said, was exacerbated by travel, stress and worry.  In terms of physical exertion, if he were to lift over 20 kilograms there would be exacerbation.  Walking long distances and sudden movements could also cause difficulty.  In terms of household tasks he can now mow his own lawn but is sometimes unable to do so.  In terms of hobbies he occasionally goes fishing but has some limitations.  He is no longer a member of the Eastern Goldfields 4‑Wheel Drive Club because he cannot go 4‑wheel driving in rough terrain.  He occasionally has a problem with sexual relationships with his wife although his relationship now is a good one.  He is occasionally frustrated by being unable to do the things that he once could do.
61		In cross‑examination the plaintiff said that he had no intention of giving up work in the foreseeable future.  His contract at the Argyle Diamond Mine is a full‑time position with a probationary period of 3 months.  The job involves induction and training of personnel with some underground instruction on the use of machines.  It would not involve him having to lift in excess of 20 kilograms.
62		Counsel for the plaintiff submitted, in his final address, that the plaintiff had suffered a very severe injury from which he had made a relatively good recovery.  He is, however, still affected by the injury.  Those submissions are well supported by the evidence.  Counsel submitted that his client had endured a long and painful period of recuperation which led to marital problems.  He urged a generous award of general damages.  So far as earning capacity was concerned, counsel for the plaintiff conceded this his client is presently earning considerably more than he was at the time of the accident because of his re‑training.  Counsel submitted that, in the context of the State being in the midst of a mining boom, the plaintiff was presently being well remunerated and would, for the time being, be in work.  There might be, he submitted, a narrowing in his range of employment in the mining industry in the future.
63		Counsel for the plaintiff noted that Mr Hardcastle did not anticipate any further medical treatment so far as the spine was concerned and that he recommended occasional physiotherapy.  He suggested that a small allowance be made for that contingency.  He submits that the plaintiff will suffer increased degenerative change and that there would need to be some small allowance for analgesia and conservative treatment.  He spoke of the possible need of further surgery on the shoulder and further physiotherapy with the cost of surgery being in the vicinity of some $10,000 plus loss of wages.  He urged that I take a broad‑brush, global approach to future medical costs, as with economic loss.
64		Counsel for the defendant queried whether there was any component of economic loss at all given that the plaintiff's position presently is apparently better than it was at the time of the accident.  He does concede that if there is to be an assessment it must be of a global nature.  Counsel said of the medical reports tendered by consent that there was no great discord in relation to them.
65		I have been provided with a book of taxation documents relating to the plaintiff which is Exhibit 2.  That book comprises documents pertaining to the years ended 30 June 1999 to 30 June 2005, inclusive.  In the year ended 30 June 1999 the plaintiff described himself as a mining labourer employed by Barminco Pty Ltd with a gross income of $80,806.  In the following year the plaintiff had a gross income of $73,203.  In the year of the motor vehicle accident the plaintiff had a gross income of $51,139.  In the year ended 30 June 2003 his taxable income was $47,850.  In the year ended 30 June 2004 his taxable income was $61,446 and in the year ended 30 June 2005 his taxable income was $75,801.
66		The plaintiff said that on 4 December 1999 his former wife left the marriage and travelled to South Australia.  At the time he, his wife and two children had been living at Kambalda and working for Barminco Pty Ltd.  The departure of his wife left him with young children to consider.  It also disrupted his life and considerably impacted upon his work such that in the year ended 30 June 2000 he ceased work with Barminco Pty Ltd and after a break when he did various jobs resumed work in the mining industry with Byrnecut Mining.  He decided to look for easier work having been, up till then, employed in the mining industry as a miner.  He eventually took the position offered to him by Aquacrete and began work with that company on 23 July 2001.  His salary was $50,000 per annum gross.  The plaintiff explained that the reason why his taxable income in the year ended 30 June 2001 was $34,100 was because he had taken about 3 or 4 months off work.
67		Notwithstanding that the job with Aquacrete paid only about $50,000 per annum gross, somewhat less than the income previously commanded by the plaintiff, he indicated that he intended to stay in that job.  It was, he said, still a job in the mining industry, mixing with people that he knew and dealing with matters familiar to him.  He enjoyed the job.  I conclude that the plaintiff would not have returned to work as a miner and will not do so in the future.  Having made the change and having re‑trained himself he is now happy as a trainer and in the field of occupational health and safety.  He confirmed that he enjoys that role and that type of work.  So far as the future is concerned the plaintiff said:
"Its through knowing people that – a lot of the times that I get – I've spent 14‑odd years or – even 12 years in the industry in Western Australia and I've got a good name and its through that I mainly get the positions that I get.  Again, if we weren't in a boom or bust situation, if we weren't in the boom side of it, I don't say that I'd be out in the cold but I think I'd find it hard to get jobs."
68		The plaintiff is nearly 50 years old.  He presently has no intention of giving up work and, as mentioned, enjoys his present employment.  It is the case that the plaintiff, perhaps as the result of the breakdown of his marriage, decided in about 2000 that he needed to make changes in his working life.  That led to the job with Aquacrete, a job which, on the evidence, the plaintiff enjoyed and did well.  The impact of the injuries suffered by him on 18 January 2002 led him to undertake training and computer skills and obtain qualifications in the field of occupational health and safety.  Those developments proved to be fortuitous and have equipped the plaintiff for continued work in the mining industry in a relatively specialised field without the heavy physical component which characterised his work in that industry until mid 2001.  It is notorious that the State of Western Australia presently enjoys buoyant economic conditions largely the result of metals exploration and mining activity throughout the State.  Given the plaintiff's background in the mining industry, his obvious ability to work well with people, his demonstrated ability to obtain work when needed and his newly obtained qualifications I anticipate that the plaintiff will continue to be well remunerated in the mining industry until he chooses to retire.  On 2 November 2003 he commenced work with Boart Longyear Pty Ltd as a services coordinator on a gross salary of $85,000 per annum.  On 9 February 2004 he commenced work with Barminco Pty Ltd as an occupational health and safety coordinator with a gross salary of $85,000 per annum.  On 17 March 2005 he commenced work with H S E Mining as a safety officer with a gross salary of $85,000 per annum and he now works with Roche Mining at the Argyle Diamond Mine in the Kimberly region of Western Australia as a safety adviser and trainer with a gross salary in the vicinity of $90,000 per annum.  The plaintiff said that the position was a full‑time position and that he thought that the life of the Argyle mine was likely to be 10 to 15 years.
69		I have not been provided with the plaintiff's taxation papers for the year ended 30 June 1996 or, for that matter, been provided with any evidence of his present employment or income.  Suffice it to say that counsel for the plaintiff, in his closing address, was somewhat coy in relation to the plaintiff's current work circumstances, they being as at May 2007.  I infer that his employment at the Argyle Diamond Mine continues.  Counsel for the plaintiff made it clear that past economic losses are covered or largely covered by workers' compensation.  The issues for determination, he said, are general damages, loss of future earning capacity and an allowance for future medical procedures and medication.
70		Counsel for the plaintiff, in his closing address, submitted that there was a considerable narrowing in the plaintiff's employment options and that if he were to find himself on the employment market again he would be at a significant disadvantage both in terms of the jobs that he can do and in terms of his attractiveness to potential employers.  The evidence does not, however, bear out either of those contentions.  The plaintiff, as already mentioned, has shown an ability to obtain work, to improve his position and to re‑train and has done so.  It is entirely unrealistic to contemplate that the plaintiff might have, at the age of 50 years, returned to the more physical work of his younger days.  He had, as already mentioned, made the change to his work circumstances prior to the motor vehicle accident and there was, I find, no realistic prospect of a return to the former circumstances.  In my view the plaintiff has failed to establish any future economic loss resultant from the injuries suffered in the motor vehicle accident.  To the contrary, by reason of his own re‑training and determination he has substantially improved his position over the years and will, I expect, maintain that situation for the foreseeable future.
71		The plaintiff certainly is entitled to an award of damages for pain, suffering and loss of amenities.  I assess general damages at $45,000.  In doing so, I take into account the plaintiff's ongoing neck symptoms which are likely to continue into the future and the difficulties and pain associated with his right shoulder.
72		Mr Hardcastle suggested that his further management would involve continued self‑medication, occasional physiotherapy and perhaps further cortisone injections relating to the right shoulder.
73		So far as further surgery is concerned Mr Hardcastle commented that it is only occasionally that further spinal surgery is necessary and that, as at January 2006, the x‑rays did not demonstrate any evidence of degeneration at the segments adjacent to the existing fusion.  He regarded the prognosis for the shoulder as being more guarded.  In future the plaintiff may suffer premature degenerative change and, more likely, recurring episodes of subacromial bursitis.  The latter may require surgery but, as mentioned, Mr Hardcastle thought that a course of cortisone injections would be the preferable option.  The cost of a cortisone injection to the shoulder would be approximately $600 under ultrasound control and, said Mr Hardcastle, it is possible that the plaintiff might require another two although that is presently difficult to assess.
74		My impression is that the likelihood of further surgery is fairly remote.  Certainly, the plaintiff will, it seems, continue with self‑medication.  There is some prospect of further cortisone injections being required and, perhaps less likely, further surgery.  I propose to allow, taking a global approach, a further sum of $15,000 for the cost of future medical procedures, treatment and medication.  I therefore propose to allow judgment for the plaintiff in this matter in the sum of $60,000.