(1) Roads and Traffic Authority v Ryan & 2 Ors (2) Blue Mountains City Council v Ryan & 2 Ors

[2002] NSWCA 91

CITATION:	(1) Roads and Traffic Authority v Ryan & 2 Ors (2) Blue Mountains City Council v Ryan & 2 Ors [2002] NSWCA 91 revised - 11/04/2002
FILE NUMBER(S):	CA (1) 40334/01; (2) CA 40335/01
HEARING DATE(S):	27/03/02, 28/03/02
JUDGMENT DATE:	10 April 2002
PARTIES :	Roads & Traffic Authority (Appellant) v Nadia Catherine Ryan by her Tutor Heather Ryan (1st Respondent), Jack Pledge (2nd Respondent), Blue Mountains City Council (3rd Respondent) Blue Mountains City Council (Appellant) v Nadia Catherine Ryan by her Tutor Heather Ryan (1st Respondent), Jack Pledge (2nd Respondent), Roads and Traffic Authority (3rd Respondent)
JUDGMENT OF:	Meagher JA at 1; Giles JA at 2; Ipp AJA at 5

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	SC 20099/95
LOWER COURT JUDICIAL OFFICER :	Dunford J

COUNSEL:	C T Barry QC/S A Woods (Roads and Traffic Authority) J D Hislop QC/G J Gemmell (Blue Mountains City Council) A S Morrison SC (Nadia Catherine Ryan by her Tutor Heather Ryan) P R Garling SC/J M Morris (Jack Pledge)
SOLICITORS:	I V Knight, Crown Solicitor (Roads and Traffic Authority) Phillips Fox (Blue Mountains City Council) Stacks (Nadia Catherine Ryan by her Tutor Heather Ryan) Abbott Tout (Jack Pledge)
CATCHWORDS:	Negligence - motor vehicle accident - pedestrian injured in collision - liability amongst tortfeasors. ND
LEGISLATION CITED:	Motor Accidents Act 1988
DECISION:	See paras 80, 81, 82 and 83.

CA 40334/01
CA 40335/01
SC 20099/95

MEAGHER JA
GILES JA
IPP AJA

Wednesday, 10 April 2002

ROADS AND TRAFFIC AUTHORITY v NADIA CATHERINE RYAN BY HER TUTOR HEATHER RYAN & 2 ORS

BLUE MOUNTAINS CITY COUNCIL v NADIA CATHERINE RYAN BY HER TUTOR HEATHER RYAN & 2 ORS

Judgment

1 MEAGHER JA: I agree with Ipp AJA.

2 GILES JA: I have had the benefit of reading the reasons of Ipp AJA in draft. With the qualification next mentioned, I agree with them and do not wish to add anything.

3 The qualification is that I am not persuaded that, on a correct application of the Standard, 90 degree angle parking was contra-indicated. It does not matter, because the distraction to Mr Pledge was from a potential conflict between the car backing out and the car coming towards him, not from the car backing out onto his side of the service road. It was a potential conflict of an ordinary kind to which 90 degree angle parking as distinct from parallel parking was not significant. Even if 90 degree angle parking should not have been provided, the fact that it was provided was not causative in law of the accident causing Nadia’s injuries.

4 I agree with the orders proposed.

5 IPP AJA: On the afternoon of 9 July 1994, Nadia Ryan, then aged nine and a half years, was struck by a motor vehicle driven by Mr Jack Pledge. She suffered serious injuries and sued Mr Pledge, the Roads and Traffic Authority (“the RTA”) and the Blue Mountains City Council (“the Council”), on the grounds of negligence, for damages for the injuries she suffered.

6 The collision occurred in Blaxland on a service road running parallel to the Great Western Highway and divided from it by a median or nature strip. Although, generally, the Great Western Highway runs from east to west, the area where the collision occurred runs from south to north. In that vicinity the traffic travelling towards Sydney moves southwards and the traffic heading towards Katoomba moves to the north. The nature strip, which is parallel to the Great Western Highway at that point, is to the east of the Great Western Highway and the service road, which is also parallel to the Great Western Highway, is to the east of the nature strip.

7 On the afternoon in question Mr Gregory Ryan, Nadia’s father, was crossing the nature strip from west to east, with his young daughter Danielle on his right and Nadia on his left. He was holding each child by the hand. As they came to a point about 18 inches to two feet from the edge of the nature strip, he released Nadia’s hand. Nadia stepped away from him and commenced crossing the service road. She had walked about one metre into the roadway when she was struck by Mr Pledge’s vehicle, then travelling along the service road from south to north, that is, from her right to her left.

8 The parties agreed that Nadia’s damages under the Motor Accidents Act 1988 amounted to $3,250,000 and her damages at common law to $4,125,000.

9 The trial judge, Dunford J, found that Mr Pledge was negligent in failing to keep a proper lookout and in travelling at a speed that was excessive in the circumstances. This finding was not challenged on appeal.

10 Trees and shrubs had been planted on the nature strip and at the time of the collision the foliage was thick and abundant. At least to some extent it impeded the line of sight between drivers of vehicles travelling in the service road and pedestrians crossing the nature strip. Dunford J found that the vegetation on the nature strip in the relevant area “was too dense, and too close to the kerb, at times actually extending beyond the kerb onto the carriageway itself”. He found that “the vegetation planted where it was and allowed to grow as thick as it did in an area where it was foreseeable that pedestrians would cross, significantly restricted the vision of [Mr Pledge]”.

11 The RTA was responsible for the design and construction of the nature strip, as well as the planting of the vegetation. Dunford J held that the design was faulty, it allowed for the wrong type of vegetation that was, in any event, planted too close together and too close to the kerb. He held that the RTA was negligent in this respect.

12 Dunford J found that, by agreement between the RTA and the Council, responsibility for the maintenance of the nature strip was (after a six month period) entrusted to the Council. He held that the Council had negligently failed to maintain the nature strip by omitting to prune it to an adequate extent.

13 His Honour held that, having planted the vegetation that created the danger, the RTA “was not able to avoid liability therefor by delegating [to the Council] its responsibility for the maintenance of the nature strip”; the RTA, accordingly, was also negligent in failing to maintain the nature strip.

14 In summary, his Honour held:

“The public authorities responsible for the design and construction of the nature strip and the planting and maintenance of the vegetation on it, [namely, the RTA and the Council], were guilty of negligence which contributed to [Nadia’s accident]”.

15 Dunford J found that one of the reasons for Mr Pledge’s failure to keep a proper lookout was that he was distracted by a vehicle reversing out of a 90 degree angle parking bay nearby the point of impact. His Honour held that the Council was negligent in providing for 90 degree angle parking in that area. His Honour said:

“This created a potential hazard for drivers proceeding north on the service road when a vehicle was backing out of the bay in that it distracted them from other matters requiring their attention directly ahead, particularly the possibility of pedestrians moving off the nature strip to cross the road, which I am satisfied is exactly what happened to [Mr Pledge] in this case”.

16 Dunford J held further that there was a need of a warning sign limiting the speed of vehicles (or directing them to proceed slowly) in the area in question and the Council was negligent in failing to cause such a sign to be erected.

17 Dunford J held that Nadia was guilty of contributory negligence in failing to look both ways before crossing the service road and assessed her responsibility for her injuries at 10%.

18 His Honour concluded that responsibility for Nadia’s injuries should be apportioned between the defendants as to 50% to Mr Pledge, and 25% to each of the RTA and the Council.

19 Dunford J was satisfied that the agreed amounts of damages, namely, $3,250,000 for damages under the Motor AccidentsAct and $4,125,000 for damages at common law, were reasonable. His Honour reduced the agreed amounts by 10%, having regard to the degree of Nadia’s contributory negligence, and granted judgment for her in the sum of $2,925,000 against Mr Pledge and $3,712,500 against each of the RTA and the Council.

20 Each of the defendants (Mr Pledge, the RTA and the Council) brought cross-claims against each of the other defendants claiming contribution or indemnity.

21 There was a dispute as to how the cross-claims were to be resolved having regard to the fact that Mr Pledge was liable under the Motor AccidentsAct and the RTA and the Council were liable at common law. Dunford J held in this regard that:

(a) “[T]he effective cap on the liability of [Mr Pledge] is the amount of damages after the reduction for [Nadia’s] contributory negligence, namely $2,925,000”.

(b) The submission of Mr Pledge that he should only be ordered to make a contribution to the extent of the relevant proportion of the Motor Accidents Act damages, and not the relevant proportion of common law damages capped by Motor Accidents Act damages, should be rejected.

(c) The relevant proportion of common law damages, capped by the amount of Mr Pledge’s liability under the Act, should be allowed.

(d) In accordance with the approach adopted in (a) to (c), contribution orders in various of the cross-claims should be made.

22 On appeal, the RTA and the Council, on various grounds, contended that Dunford J had erred in finding that they were negligent and their negligence contributed to the collision. The RTA also disputed the apportionment of damage assessed by his Honour. In addition, the RTA and the Council contended that his Honour had applied incorrect principles in deciding that tortfeasors “whose liability is uncapped cannot recover contribution from the tortfeasor whose liability is capped in excess of such cap”. Mr Pledge cross-appealed. He contended that he should only be ordered to make a contribution to the liability of the RTA and the Council to the extent of the relevant proportion of the Motor AccidentsAct damages, not of the relevant proportion of common law damages capped by the Act.

23 I turn to the particular circumstances of the collision.

24 East of the service road there was a carpark divided by a footpath leading to a hardware store. Mr Ryan and his daughters were walking to this store as they moved eastwards across the nature strip. They were crossing the strip on what was described as a “well-worn path”.

25 The nature strip was 3.4 metres wide. Having crossed the Great Western Highway, Mr Ryan and his daughters stepped onto the western edge of the nature strip and, according to Mr Ryan, “it was only two steps and we were across”. He later repeated that he took only two steps before stopping at the eastern edge of the strip.

26 As they walked from the western edge of the nature strip towards the east, Mr Ryan and his daughters were in single file with Nadia going first holding her father’s left hand and Danielle bringing up the rear holding her father’s right hand.

27 Mr Ryan said he then “stopped with the children abreast one on one side, one on the other approximately 18 inches from the kerb”. Nadia was standing to Mr Ryan’s left side possibly slightly ahead of him. Danielle was on his right side. In other words, as they stopped, they were no longer in single file but more or less in line abreast, with Nadia slightly in front and with Mr Ryan holding Nadia’s right hand with his left and Danielle’s left hand with his right.

28 Mr Ryan returned to the scene some time after the accident and was photographed there. It was put to him in cross-examination that a photograph, exhibit X2, was “taken of you standing in approximately the position that you were standing in immediately prior to Nadia stepping forward and out onto the road”. He replied, “I believe so”. This photograph shows Mr Ryan standing on the grass of the eastern edge of the nature strip with his feet bordering on the concrete edge of the kerb.

29 Mr Ryan said that when Danielle came alongside him, he lifted his head (he had been watching the children) “and observed there was movement of a vehicle I believe in front of the parking area of the hardware store”. Mr Ryan said that he “had actually stopped with the children to observe the activity in the area”.

30 Once Mr Ryan stopped, he released the children’s hands. Nadia withdrew her hand from his and he looked down to Danielle to see if “she was OK”. He then lifted his head “and noticed that Nadia took a step away from me”.

31 As Nadia moved away, she walked onto the service road. Mr Ryan said:

“From the corner of my eye I saw something moving, a red object, through some shrubbery. At this stage – Nadia had taken another step. I screamed out because I realised that it was a vehicle moving at speed and she was hit”.

32 He explained:

“I reached just prior to this, I reached to try and grab her because she was very very close to me, very close to me. I think it was only 6 inches or a foot that I missed out on trying to grab her before the object hit her”.

Mr Pledge’s vehicle struck Nadia. She must have been about one metre into the roadway of the service road. On being hit by the vehicle, Nadia was thrown in the air for about five to six metres before she hit the ground and then she travelled a further distance on the ground for about one and a half to two metres before coming to rest.

33 Mr Ryan testified that, while on the nature strip, it was very difficult to see any oncoming traffic from the right hand side, namely, the direction from which Mr Pledge’s car had come. He said that this was due to the shrubs and trees that impeded the view. He said that the same obstruction to vision applied to approaching drivers.

34 At about the same time as Nadia was walking towards the hardware store, Mr Pledge was driving his vehicle at about 60 kilometres an hour northwards along the service road.

35 He saw a number of cars parked in the 90 degree parking bays outside the hardware store. He noticed one of the cars backing out of the parking bay and, also, a car travelling towards him along the service road to the north of the hardware store. He slowed down by taking his foot off the accelerator as he thought that a potential hazard could develop involving the car reversing out of the parking bay and the car proceeding towards him down the service road. At the same time as taking his foot off the accelerator, Mr Pledge moved to the left in order to give the reversing vehicle and the oncoming vehicle as much room as possible.

36 Although Mr Pledge did not expressly say so, it seems that the oncoming car safely passed the car that was backing out of the parking bay and he no longer thought that the situation of these two vehicles posed any danger. That is when he commenced accelerating. By this time he was about level with the hardware store. He then “heard a bang” and “saw the little girl bounce off my car”.

37 Prior to the impact he had not seen Nadia or anyone else on the nature strip. He said that his “attention was distracted by the traffic on the road”. In cross-examination, when it was put to him that he could “proffer no explanation” as to why he “failed to see her until after the impact”, he replied, “my sight was obscured by the foliage”.

38 Dunford J said that “the sum effect of [Mr Pledge’s] evidence was that his attention was distracted by the other vehicles to his right, he was not watching to his left and he did not see [Nadia] until he hit her”.

39 Constable Mills, a police officer who attended the scene, stated that the vegetation on the nature strip constituted an obstruction to visibility for pedestrians and drivers but did not say to what extent and from what point the view of drivers was impeded. In cross-examination he agreed that “as a consequence of [his] investigations, including [his] examination of the scene,” he formed the opinion that Mr Pledge had no vision of Nadia until she had commenced to walk out onto the road. The weight of this view, however, is questionable as Constable Mills appears to have obtained his information largely from one of the policemen at the scene and not from any eye witness to the collision.

40 Constable Schneiders, another police officer who attended at the scene, also described the visibility to drivers and pedestrians in the vicinity of the collision as “poor”. He said:

“There is a slight gap where the pedestrians go through but the vegetation still extends up to the kerb and you could not see a pedestrian coming off the kerb”.

41 The “slight gap” where pedestrians crossed the nature strip was nine metres wide. It is obvious from photographs that, for some distance (significantly more than nine metres) to the south of the point where Nadia stepped on to the service road, a pedestrian standing at that point would be clearly visible to a driver proceeding from south to north. The evidence as to visibility, given by the police witnesses, Mr Ryan and Mr Pledge, has to be qualified by this fact. To the extent that their evidence suggests that a pedestrian would not have been visible at all, or difficult to see – irrespective of the position of such a driver, it is plainly wrong. There was however no direct evidence as to the distance over which such a pedestrian would readily have been visible to the driver. None of the witnesses dealt with this question.

42 A photograph, exhibit C2, showed a police officer with a yellow reflective jacket standing “pretty close” (according to Constable Schneiders) to the point of impact. The officer concerned was standing virtually on the kerb. It is obvious from the photograph that the view from the photographer to the police officer was entirely unimpeded (the photographer was on the service road as if driving north). There was no evidence, however, as to the distance between the photographer and the police officer.

43 Exhibit C2, was taken a distance further to the south of the point of impact than another photograph, exhibit C7. Exhibit C7 is a photograph of the nature strip and the service road showing the point of impact (and also indicating that the view from the point of impact to the camera was unimpeded). According to Constable Schneiders the distance from the photographer of exhibit C7 to the point of impact was approximately 30 metres. If that is correct then the distance from the point of impact to the photographer in exhibit C2 would be greater and, on my assessment, could be about 50 metres. Mr Garling SC, senior counsel for Mr Pledge, submitted however that the 30 metres to which Constable Schneiders testified (in regard to exhibit C7) must be a mistake, and the photographer of exhibit C7 must have been much closer to the point of impact than 30 metres. Although Constable Schneiders was not cross-examined about this estimate, there is force in Mr Garling’s submission.

44 A photograph of some significance is exhibit C3, which was taken at what appears to be virtually the same distance from the point of impact as exhibit C2. Exhibit C3 differs from exhibit C2 in that the police officer with the reflective jacket is not standing on the edge of the kerb of the nature strip but a metre or two west of the kerb. Only his head and shoulders are visible and these are difficult to see. Exhibit C3 is compelling evidence of the difficulty that drivers travelling south to north along the service road would have had in seeing a pedestrian standing about a metre or more to the west of the eastern kerb of the nature strip.

45 The fact is that it is not possible from the evidence to determine with any precision or even approximate reliability the point at which Nadia, her sister and her father first would have become visible to Mr Pledge as he was driving from south to north along the service road.

46 The reasons of Dunford J, however, do throw some light on this issue. His Honour’s findings in this regard are of particular value as he held a view on site during the trial when various features of the scene were pointed out (albeit that the vegetation was then in a different condition). In addition, he drove along the service road in the same direction as Mr Pledge drove on the day in question.

47 Dunford J found that Mr Pledge’s speed of close to 60 kilometres per hour as he came along the service road was excessive “having regard to the narrowness of the road and the limited vision on account of the trees and shrubs on the nature strip which [were] liable to obscure the presence of persons there who might be heading in the direction of the hardware store”. Dunford J accepted that when Mr Pledge became concerned about the traffic in the area of the parking bay he took his foot off the accelerator but he was not satisfied that Mr Pledge’s speed was reduced significantly thereby.

48 Dunford J concluded:

“I am satisfied that if he had been keeping a proper lookout on both sides he would, notwithstanding the foliage, have been able to see [Nadia] in sufficient time to stop or swerve to avoid her, at least if he had been travelling at a more appropriate speed in the light of the road conditions to which I have referred”.

49 This finding was not challenged. It follows that Mr Pledge’s vision of the point where Nadia was standing was, for some significant distance, not impeded by the vegetation. This is consistent with the photographs exhibits C3 and C7.

50 Good practice relating to maintenance of vegetation on land bordering a roadway required a cleared area between the edge of the vegetation and the kerb line of the roadway. A guideline for tree planting and maintenance on urban roads issued by the Traffic Authority of New South Wales in 1982 and 1987 required such vegetation to be cleared by one metre from the edge of the kerb. It was this guideline to which Dunford J referred in finding that the nature strip was too dense and too close to the kerb.

51 In essence, following the guideline, the RTA and the Council should have cleared the vegetation on the eastern border of the nature strip by at least one metre. It was their failure to do this that constituted their negligence as found by Dunford J. Had there been a cleared area, at least one metre wide, bordering on the eastern kerb, the RTA and the Council would not have been held to have been negligent.

52 The question raised by the RTA and the Council in this appeal is whether their failure to ensure that there was a cleared area of one metre at the eastern edge of the nature strip contributed to the collision. Although Dunford J found that it did, he did not set out his reasons for coming to this conclusion, other than saying that the vegetation “significantly restricted the vision” of Mr Pledge. His Honour did not deal with the question whether, had the vegetation so been cleared, Mr Pledge would have seen Nadia, or her father, earlier, (and how much earlier) and whether this would have caused him to drive in a safer way.

53 The passage of Mr Ryan and his daughters across the nature strip was described by him as taking a “matter of seconds” and “quite quick”. He said, on more than one occasion, that it took them only two steps to cross the strip to the point where, for a moment, they stood still.

54 With the vegetation in the condition it was in at the time of the collision, Nadia was obscured from Mr Pledge’s vision until she stood at the kerb and walked into the roadway. She then became plainly visible to him.

55 From Mr Ryan’s testimony it is to be inferred that Nadia stood still for about one second and then a further second elapsed as she walked onto the roadway and was struck by Mr Pledge’s vehicle. It is also to be inferred from Mr Ryan’s testimony that about one second before Nadia stood still, she was about one metre west of the eastern kerb, and was walking towards the service road.

56 In summary, therefore, about three seconds before the collision occurred, Nadia was walking towards the eastern kerb and was about one metre to the west of it.

57 Significantly, had the vegetation been cleared by one metre from the eastern edge of the nature strip, it would have taken Nadia only about one second to cross that one metre before commencing to stand still, 18 inches or two feet from the kerb. In other words, had the vegetation so been cleared, Nadia, her sister and her father, would have been visible to traffic travelling from south to north along the service road for an additional one second. In such circumstances, Nadia, her sister and her father would have been visible to Mr Pledge for a total of three seconds prior to the collision. That is, one second while she walked the one metre where the vegetation, notionally, had been cleared, one second while she stood still, and one second as she walked to where she was struck.

58 Mr Pledge said that when he first noticed the other two vehicles he had not yet reached a certain pedestrian crossing that was to the south of the point of impact. The point of impact was more or less opposite a road known as Coghlan Road that joins the Great Western Highway on its western side. The pedestrian crossing was about 50 to 60 metres from Coghlan Road. That would suggest that the pedestrian crossing was about 50 to 60 metres from the point of impact. It follows that Mr Pledge’s attention was first caught by the two cars ahead of him when he was more than 50 to 60 metres south of the point of impact and, at least from that stage, he did not look to the left.

59 Driving at about 60 kilometres an hour, and, later, decelerating as he did, Mr Pledge would have travelled the distance from the point where he first saw the cars ahead of him to the point of impact in not less than about 4 seconds. Depending on the distance he was to the south of the pedestrian crossing when he first saw the cars, the period could have been longer.

60 At the moment that Nadia was three seconds away from the point of impact, Mr Pledge, on his own evidence, was absorbed in watching the two vehicles in front of him and was not looking to the left. He must then have been about 45 to 50 metres from the point of impact and to the north of the pedestrian crossing. That is, on the basis that at about 60 kilometres per hour – and later decelerating – Mr Pledge travelled on average about 16 metres per second.

61 In the circumstances, in my opinion, the question whether Mr Pledge would have seen Nadia, during the additional second that clearing the vegetation to a width of one metre would have afforded him, must be answered in the negative.

62 Mr Pledge did not keep a proper lookout for several seconds prior to the point of impact. As I have explained, the additional second is likely to have elapsed after Mr Pledge passed the pedestrian crossing. His attention by then had already been directed to the cars in front of him. He was paying no attention to what was happening on his left hand side. Even after the danger from the vehicles ahead of him had passed, he did not look to the left but accelerated.

63 I recognise that there is potential danger in attributing accuracy and reliability to calculations of the kind that I have set out. Nevertheless, it does seem to me to be beyond doubt that cutting down the vegetation by an extra metre would have given Mr Pledge only one additional second to see Nadia, her father and her sister. For the reasons I have expressed, it seems to me to be likely that, prior to that second, Mr Pledge was already looking ahead and to his right and not to his left.

64 Accordingly, it seems to me to be highly unlikely that clearing the vegetation in accordance with the guideline would have made any difference to Mr Pledge’s conduct. Put in another way, there is nothing in the evidence which suggests that Mr Pledge would have seen Nadia even had she, her father and her sister been visible to him for another second.

65 In my opinion, the failure on the part of the RTA and the Council to clear the vegetation by one metre from the kerb did not contribute to the collision. Had the vegetation so been cut down, the collision would have occurred in exactly the same way. The manner in which Mr Pledge drove at the time would have not altered at all. He did not see Nadia until a moment before the impact, and even had the vegetation been cleared he would still only have seen her then.

66 In the circumstances, I consider that Dunford J erred in finding that the failure of the RTA and the Council to clear the vegetation on the nature strip to the requisite degree caused the collision.

67 I now turn to the finding that the Council was negligent in failing to erect a warning sign or a notice limiting the speed of vehicles or directing them to proceed slowly.

68 It was submitted that the warning sign should have reflected a speed of below 60 kilometres an hour or the words “Slow down: Pedestrians”. It was, however, not general practice at the time to restrict the speed limit on minor roads to speeds below 60 kilometres an hour. Secondly, there was no evidence as to the speed limit that should have appeared on the sign. Thirdly, there was expert evidence to the effect that there was no warrant for warning signs to be erected. In my opinion, the finding that the Council was duty bound to have erected a sign of the kind suggested is questionable.

69 In any event, Mr Pledge accepted in cross-examination that he knew that particular care was required in the area where the collision occurred and said that he had driven along the service road on a number of occasions. He was familiar with the area. A sign would not have told him anything he did not already know. Nevertheless, his knowledge made no difference to his driving. In my view, there were insufficient grounds to hold that a sign of the kind postulated would have caused him to drive in any different way.

70 Finally, I come to the finding that the Council was negligent in providing parking bays on the eastern side of the service road at an angle of 90 degrees.

71 The provision of parking bays at such an angle, having regard to the width of the service road, was in conflict with the relevant Australian Standard. Dunford J said that having regard to the Standard “and the opinions expressed by the expert witness Mr Wingrove”, designing the parking bays so that they were in conflict with the Standard amounted to negligence. His Honour gave as his reason for this conclusion the fact that “vehicles reversing out of the parking bay, even if intending to travel south on the service road, necessarily had to back out onto the northbound (or opposite) side of the service road”. This, he found, “created a potential hazard for drivers proceeding north on the service road when a vehicle was backing out of the bay in that it distracted them from other matters requiring their attention directly ahead, particularly the possibility of pedestrians moving off the nature strip to cross the road”. His Honour considered that the provision of parking bays in these circumstances constituted negligence on the part of the Council which contributed to the collision.

72 The Standard was not mandatory, but was a guide, only. Matters such as width of carriageway, abutting land use, speed characteristics and vehicle volumes were all relevant in deciding whether to permit angle parking. Generally 90 degree angle parking was permitted in streets that carried predominantly local traffic (such as the service road). Nevertheless, according to the Standard, the width of the service road was such that only parallel parking should have been provided.

73 Mr Wingrove said:

“There is nothing to say you have to always comply to the Standard”.

This is manifest from the Standard itself.

74 In my view, neither the Standard nor the evidence of Mr Wingrove justified the finding that the provision of 90 degree angle parking on the service road was negligent.

75 In any event, in my view, on a common sense basis, the provision of the parking bays was not causative of the collision.

76 Mr Pledge said that he could see a potential traffic hazard occurring “between the car backing out and the one coming rather quickly down the service road towards me”. He had ample time to take appropriate action.

77 The movements of the vehicles concerned were quite ordinary, and often experienced in the ordinary course of suburban driving. The parked car began to reverse out of its parking bay. It was passed by the oncoming vehicle that continued safely along the service road. The potential hazard was simply one of a kind that occurs frequently in everyday life. It has to be coped with by careful driving.

78 There is nothing to suggest that, had the parking bays been of the parallel kind, and had the parked car moved out in front of the oncoming vehicle behind it, Mr Pledge’s attention would not have been distracted.

79 In my opinion, therefore, Dunford J erred in finding that the Council was negligent in providing 90 degree angle parking bays and that its negligence contributed to the collision.

80 In the circumstances, I consider that the appeals should be upheld. There is no need to deal with the other issues that arise and the cross appeals fall away. I propose the following orders in regard to the issues relating to liability:

(a) The appeals are upheld.

(b) The judgment in favour of Nadia against the RTA and the Council for $3,712,500 is set aside.

(c) Judgment is ordered in favour of the RTA and the Council against Nadia.

(d) The orders made in regard to the cross-claims are set aside.

(e) Each of the cross-claims is dismissed and judgment is ordered in favour of each cross-defendant against each cross-claimant.

81 As regards the costs of the trial, I would set aside order 11 made by Dunford J in this respect and order that Mr Pledge pay Nadia’s costs of the trial and Nadia pay the costs of the trial of the RTA and the Council.

82 As regards the costs of the appeals, there was an identity of interest between Nadia and Mr Pledge in the appeals and, in effect, they were largely a contest between Nadia and Mr Pledge, on the one hand, and the RTA and the Council on the other. Therefore, I would order that Nadia and Mr Pledge pay the costs of appeal of the RTA and the Council, their liability in this respect to be joint and several. I would order that each of Nadia and Mr Pledge be entitled to a certificate under the Suitor’s Fund Act if otherwise qualified.

83. When these Reasons for Judgment were delivered on 10 April 2002 the proposals made in paragraphs 81 and 82 were qualified by the following:

Orders for costs to stand pending a final decision to be made in regard to costs.

Written submissions to be filed within seven (7) days in regard to costs.

Written submissions in response within seven (7) days thereafter.

Restitution submissions to be included in written submissions.

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