Bankstown City Council v Zraika

[2016] NSWCA 51

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Bankstown City Council v Zraika; Roads and Maritime Services v Zraika [2016] NSWCA 51

Hearing dates:

8, 9 February 2016

Decision date:

22 March 2016

Before:

Gleeson JA at [1];
Leeming JA at [6];
Simpson JA at [170]

Decision:

Bankstown City Council v Zraika:

 

1. Grant leave to appeal.

 

2. Direct the Council to file a notice of appeal in accordance with the draft contained in the appeal books, within 7 days of today, and otherwise dispense with the requirements as to service.

 

3. Allow the appeal, set aside the answers to questions 2, 4, 6, 7, 8 and 9 in order 1 made on 30 April 2015, and in lieu thereof answer those questions in accordance with Annexure “A” below.

 

4. Set aside order 2 made on 30 April 2015, and in lieu thereof order:
2. Judgment for the plaintiff against the fifth defendant Mr Zraika.

 

5. Order that the second, third and fifth respondents to the appeal (Mr and Mrs Walsh and Mr Zraika) pay the costs of the Council of the appeal.

 

6. Direct the parties to supply within 21 days agreed short minutes of order, or in default of agreement short submissions not exceeding 10 pages accompanying the orders for which they contend.

 

Roads and Maritime Services v Zraika:

 

1. Grant leave to appeal.

 

2. Direct RMS to file a notice of appeal in accordance with the draft contained in the appeal books, within 7 days of today, and otherwise dispense with the requirements as to service.

 

3. Allow the appeal, set aside the answers to questions 1, 3, 5, 7, 8 and 9 in order 1 made on 30 April 2015, and in lieu thereof answer those questions in accordance with Annexure “A” below.

 

4. Set aside order 2 made on 30 April 2015, and in lieu thereof order:
2. Judgment for the plaintiff against the fifth defendant Mr Zraika.

 

5. Order that the second, third and fifth respondents to the appeal (Mr and Mrs Walsh and Mr Zraika) pay the costs of RMS of the appeal.

 6. Direct the parties to supply within 21 days agreed short minutes of order, or in default of agreement short submissions not exceeding 10 pages accompanying the orders for which they contend.

Catchwords:

LOCAL GOVERNMENT – development consent – function of determining applications for development consent – whether local council as planning authority owed duty of care – nature of regulatory function for the purposes of Civil Liability Act 2002 (NSW) s 44 – special statutory power for the purposes of Civil Liability Act 2002 (NSW) s 43A – nature of test imposed by s 43A – whether local council liable for failing to impose conditions relating to traffic access to property

 

NEGLIGENCE – motor vehicle collision at intersection – one driver entered intersection contrary to left turn only arrows marked on road – whether driver failed to take reasonable care – whether breach of duty caused collision – apportionment of liability

STATUTORY AUTHORITIES – function of installing traffic signals – whether delay between authority’s decision to install signals and implementation of decision was a breach of duty – operation of Civil Liability Act 2002 (NSW) s 43A

Legislation Cited:

Australian Road Rules, r 92
Civil Liability Act 2002 (NSW), ss 5B, 41, 43A, 44
Environmental Planning and Assessment Act 1979 (NSW), ss 77, 84, 90, 91, 97, 98, 102 (as at April 1997)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Motor Accidents Compensation Act 1999 (NSW), ss 10, 112
State Environmental Planning Policy No 11 – Traffic Generating Developments
Supreme Court Act 1970 (NSW), ss 65, 75A, 101
Transport Legislation Amendment Act 2011 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 28.3, 28.4

Cases Cited:

Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; 57 MVR 80
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Carr v Minister for Land and Water Conservation [2000] NSWLEC 89; (2000) 109 LGERA 175
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10
Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364; 89 NSWLR 1
Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357
Henderson v Hassel (1986) 3 MVR 359
Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; 53 NSWLR 600
Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280
Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167
Roads and Maritime Services v Grant [2015] NSWCA 138
Sibley v Kais (1967) 118 CLR 424
Swan Hill Corporation v Bradbury (1937) 56 CLR 746
The Queen v The Great North of England Railway Co (1846) 9 QB 315; 115 ER 1294
Water Board v Moustakas (1988) 180 CLR 491

Texts Cited:

D Pearce and S Argument, Delegated Legislation in Australia, (4th ed, 2012, LexisNexis Butterworths)

Category:

Principal judgment

Parties:

2015/134822
Bankstown City Council (Applicant)
Sharif Zraika (by his tutor Halima Zraika) (First Respondent)
Rebecca Jane Walsh (Second Respondent)
Joseph Bernard Walsh (Third Respondent)
Roads and Maritime Services (Fourth Respondent)
Ali Zraika (Fifth Respondent)

  2015/153328
Roads and Maritime Services (Applicant)
Sharif Zraika (by his tutor Halima Zraika) (First Respondent)
Rebecca Jane Walsh (Second Respondent)
Joseph Bernard Walsh (Third Respondent)
Bankstown City Council (Fourth Respondent)
Ali Zraika (Fifth Respondent)

Representation:

Counsel:
R Sheldon SC, P Knowles (Bankstown City Council)
M Fordham SC, H Chiu (Roads and Maritime Services)
K Rewell SC (Rebecca Jane Walsh and Joseph Bernard Walsh)
G Smith (Ali Zraika)
Submitting Appearance by First Respondent in both appeals

  Solicitors:
Mills Oakley Lawyers (Bankstown City Council)
Hicksons Lawyers (Roads and Maritime Services)
Kheir Lawyers (Sharif Zraika)
McInnes Wilson (Rebecca Jane Walsh, Joseph Bernard Walsh, Ali Zraika)

File Number(s):

2015/134822; 2015/153328

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2015] NSWSC 485

Date of Decision:

30 April 2015

Before:

Campbell J

File Number(s):

2011/52630

Headnote

[This headnote is not to be read as part of the judgment]

On 16 November 2002, the plaintiff was being carried in utero by his mother, who was a passenger in a car driven by the plaintiff’s father, Mr Ali Zraika. At the intersection of Woodville Rd and Tangerine St in Villawood in south-western Sydney, Mr Zraika’s vehicle collided with that driven by Mrs Rebecca Walsh.

Mr Zraika was travelling northward along Woodville Rd, and intended to continue straight through the T-intersection with Tangerine St. He entered the intersection from the kerbside lane, overtaking northbound traffic banked up in the middle two lanes. Mrs Walsh was proceeding westward, having entered the intersection from the driveway of a factory complex roughly opposite Tangerine St. Despite the driveway feeding directly into the signalised T-intersection, the driveway was not itself controlled by traffic lights. Accordingly, Mrs Walsh drove across the intersection while the north-south traffic lights were red. However, while she did so, the lights turned green and Mr Zraika entered the intersection. Because of the northbound vehicles stopped at the lights, neither Mr Zraika nor Mrs Walsh could see one another’s vehicle until less than a second before the collision.

Both drivers disregarded signage at the intersection. There was a “turn left only” sign to Mrs Walsh’s left as she exited the driveway, indicating that all traffic exiting the factory complex must turn left onto Woodville Rd. The northbound kerbside lane of Woodville Rd from which Mr Zraika entered the intersection had a series of left turn arrows painted on it requiring drivers to turn left into Tangerine St.

The plaintiff brought a claim against Mrs Walsh, the owner of Mrs Walsh’s car, Mr Joseph Walsh, Roads and Maritime Services (RMS), Bankstown City Council (Council) and Mr Zraika. Mr and Mrs Walsh admitted breach of the duty of care owed by a motorist to other road users, but disputed whether the plaintiff’s apparent disabilities were acquired in the collision. The other defendants denied all aspects of liability, and the defendants cross-claimed amongst themselves. Given the number of parties, the plaintiff’s age and the possible complexity of the medical issues, orders were made for the separate determination of a series of questions resolving most but not all questions of liability.

The primary judge found that the Council and RMS were in breach, and that they and Mr and Mrs Walsh were liable in proportions 25%, 25% and 50%. His Honour found that while Mr Zraika owed a duty of care to the plaintiff, he had not breached that duty. Following the delivery of judgment, the parties resolved the remaining issues in the proceedings. The result was that the appeal process proceeded without the plaintiff’s active involvement.

On appeal, the Council and RMS challenged the determinations that they were liable. They also challenged the primary judge’s findings that Mr Zraika had not breached his duty of care and that any breach by him was not causative of the collision. Mr and Mrs Walsh sought to maintain most of the reasoning of the primary judge (including the determination in favour of Mr Zraika), as well as relying upon a notice of contention in relation to RMS. Mr Zraika sought to maintain the judgment in his favour.

Held by Leeming JA, Gleeson and Simpson JJA agreeing, granting the Council and RMS leave to appeal, and allowing the appeals:

Mr Zraika’s liability

1.  Mr Zraika breached his duty of care to the plaintiff, as a reasonable person in Mr Zraika’s position would not have overtaken banked up traffic and proceeded through the intersection from the kerbside lane at 65 km/h: at [28]-[32].

2.  Had Mr Zraika not breached his duty, there would have been no collision. It follows that the primary judge’s finding as to the absence of causation must be set aside: at [34]-[36].

3.  The contribution of Mr Zraika to the collision and his culpability substantially exceeded that of Mr and Mrs Walsh. It was just and equitable to apportion their liability 60% and 40% respectively: at [40]-[43].

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(2), applied

The Council’s liability

4. Subsections (1) and (2) of s 44 of the Civil Liability Act 2002 (NSW) turn upon identifying the “function” of the public or other authority at the requisite level of specificity or generality: at [89].

5. Section 44 necessarily extends both to the function of prohibiting an activity and to the function of regulating an activity. In this context, it is natural to distinguish between the absolute prohibition of an activity and its qualified regulation by the granting of conditional approval: at [92].

Swan Hill Corporation v Bradbury (1937) 56 CLR 746, D Pearce and S Argument, Delegated Legislation in Australia, (4th ed, 2012, LexisNexis Butterworths), ch 15, referred to

6.  The explication of the matters which constitute the regulation of an activity in subsection (2) tells against the defence afforded by s 44 being directed to a failure to exercise or to consider exercising the power to grant subject to conditions when determining to regulate an activity by issuing a licence or permit or other authority: at [93].

7. The power to grant consent subject to conditions cannot sensibly be separated into a power to grant consent and a power to impose conditions upon the grant of consent: at [96].

8. The relevant “function” of the Council was the assessment and determination of the development application. This was not a case where there was a failure to exercise or consider exercising that function; the Council did so, favourably, although subject to conditions. That is sufficient to displace s 44: at [95]-[98].

9. There was no basis for construing s 44 so that it is engaged just because it is alleged that a particular condition was not imposed in circumstances where another condition directed to the same aspect of the development was imposed: at [99].

Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280, referred to

10. The power exercised by the Council to grant consent conditionally was a “special statutory power” conferred on it within the meaning of s 43A(2) of the Civil Liability Act 2002 (NSW), and the liability upon which the Council was sued was “based on” the exercise of that power. It followed that s 43A altered the standard of care applicable to the Council: at [108].

11. Section 43A assumes the existence of a duty of care and identifies the standard to be applied in determining whether that duty has been breached. Section 43A thus confers a qualified immunity upon a defendant where that section is applicable: at [109].

Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10, Roads and Maritime Services v Grant [2015] NSWCA 138, applied

12. In cases where s 43A applies, the Court is required to consider whether no authority properly considering the matter could consider the exercise of power to be reasonable. The Court therefore must have regard to what the authority in question could properly consider a reasonable exercise of the power. If the authority could properly consider what was done a reasonable exercise of the power then there will be no liability: at [110].

Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10, applied

13. The evidence falls short of establishing that no local council could properly have approved the development application without imposing conditions such as those stated by the primary judge. The finding by the primary judge of breach of the standard imposed by s 43A must therefore be set aside: at [127]-[128].

Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10, referred to

RMS’s liability

14.  The contemporaneous documents do not support the conclusion of the primary judge that RMS breached its duty of care: at [142]-[149].

15.  Based on the evidence, it was not Wednesbury unreasonable for the RTA not to put an additional sign on the exit driveway after July 1999: at [155].

Held by Gleeson JA, Leeming and Simpson JJA agreeing:

1. While it can be accepted that public safety considerations bear upon the exercise of the Council’s power to grant development consent, it does not necessarily follow, at least where Council is not the relevant “traffic authority”, that the Council owed a duty of care to road users crossing the relevant intersection: at [5].

2. Difficulties in formulating the practical content of a duty for the purposes of measuring the performance of a statutory authority against that duty may be a reason for denying its existence: at [5].

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1, Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364; 89 NSWLR 1, applied

Judgment

1. GLEESON JA: I agree with the orders proposed by Leeming JA for the reasons given by his Honour. Although the duty of care owed by the Council does not require determination in this appeal, I would add the following observations in relation to the Council’s submission that, when exercising the power to grant development consent, Council owed no duty of care to road users crossing the relevant intersection.

2. In the present case, the amended statement of claim failed to plead the content of the alleged duty of care owed by the Council to third party road users, particularly when the relevant traffic authority was the Roads and Traffic Authority, now the Roads and Maritime Services. The cross-claims against the Council were similarly deficient.

3. In their written submissions, Mr and Mrs Walsh contended that the Council owed a duty of care to persons affected by vehicles exiting the development, including the plaintiff who was a passenger in a vehicle crossing the intersection, to take such steps as were within its power to control egress from the development into the intersection. That submission failed to articulate the content of any duty of the Council to exercise reasonable care.

4. The primary judge found that the Council owed a duty of care “to road users crossing the intersection to exercise reasonable care in discharging its statutory functions for the avoidance of the risk of personal injury arising out of traffic conflicts engendered by the development”: at [134]. Expressed in those terms there are difficulties in formulating the content of a duty owed by the Council having regard to the wide range of considerations, including traffic safety, bearing upon the exercise of the Council’s power to grant development consent.

5. While it can be accepted that public safety considerations bear upon the exercise of the Council’s power to grant development consent, it does not necessarily follow, at least where Council is not the relevant “traffic authority”, that the Council owed a duty of care to road users crossing the relevant intersection. One important matter is that difficulties in formulating the practical content of a duty for the purpose of measuring the performance of a statutory authority against that duty may be a reason for denying its existence: Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [5]; and Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364; 89 NSWLR 1 at [150] (Meagher JA). In the present case, those difficulties were not squarely addressed by the submissions of Mr and Mrs Walsh at trial or on appeal.

6. LEEMING JA: These two appeals were brought by Bankstown City Council (Council) and Roads and Maritime Services (RMS) from the judgment of the primary judge on a series of questions resolving most but not all questions of liability arising from a motor vehicle accident involving two vehicles some 12 years before, in 2002. The five defendants were the Council, RMS, the drivers, Mr Ali Zraika and Mrs Rebecca Walsh, and the owner of one of the vehicles, Mr Joseph Walsh. The questions are reproduced in “Annexure A” below.

7. The plaintiff alleged that, as a result of the accident, he suffered very serious injuries. The cause of his injuries was in dispute, but was not the subject of any of the questions submitted to the primary judge for determination.

8. Following the delivery of judgment, the parties resolved the remaining issues in the proceedings. The result was that the plaintiff was entitled to judgment in the amount of $6 million plus costs, and a regime was agreed whereby payments would be made to him and the appeal process would proceed without his active involvement. That has occurred.

9. The primary judge found that the Council, RMS and Mr and Mrs Walsh were liable, in proportions 25%, 25% and 50%. With respect to Mr Zraika, the questions for determination were:

“(7) Did Mr Zraika breach the duty of care he owed to the plaintiff on 16th November 2002?

(8) Was Mr Zraika’s breach (if any) a legal cause of the collision between his vehicle and the vehicle driven by Mrs Walsh on 16th November 2002?”

(The questions concerning Mr Zraika were framed consistently with the manner in which the questions in relation to the other defendants were framed.) The primary judge answered Question 7 in the negative. Accordingly, Question 8 did not arise. His Honour also found that Mr Zraika had not breached the duty he owed, and that if he had, his breach had not caused the plaintiff’s injuries. As a consequence of his determination in relation to Mr Zraika’s liability, his Honour ordered, pursuant to UCPR r 28.4, that judgment be entered in favour of Mr Zraika, and this was duly done. On appeal, the Council and RMS challenged the determinations that they were liable; they also challenged his Honour’s findings that Mr Zraika had not breached his duty of care and that any breach was not causative. Mr and Mrs Walsh (who had admitted liability prior to the hearing) sought to maintain most of the reasoning of the primary judge (including the determination in favour of Mr Zraika), as well as relying upon a notice of contention in relation to RMS. Mr Zraika sought to maintain the judgment in his favour.

10. Although the decision was reserved following a seven day trial, it is interlocutory. Both appeals therefore require leave: Supreme Court Act 1970 (NSW), s 101(2)(e). There was a concurrent hearing of both applications for leave and in each case there should be a grant of leave.

11. Notwithstanding the number of parties and issues, there was a sensible and non-overlapping allocation of topics between counsel who appeared, resulting in the hearing taking less than one and a half days. In what follows, it will be convenient first to deal with the primary facts giving rise to the collision, and then with the liability of each of Mr Zraika, the Council and RMS in that order.

Primary facts

12. In the early afternoon of Saturday 16 November 2002, the plaintiff was being carried in utero by his mother, who was a passenger in a Ford Laser driven by his father, Mr Zraika. At the intersection of Woodville Rd and Tangerine St in Villawood in south-western Sydney, Mr Zraika’s vehicle collided with that driven by Mrs Walsh (as she was then known). Mrs Walsh was driving Mr Walsh’s Holden Commodore VS utility. Statute deemed her to be his agent, and ensured that the third-party policy taken out by Mr Walsh responded to liability caused by her driving: see Motor Accidents Compensation Act 1999 (NSW), ss 10 and 112. Their interests being identical, I shall for the most part refer in what follows to “Mrs Walsh” rather than to “Mr and Mrs Walsh”.

13. RMS is the statutory successor of the Roads and Traffic Authority (RTA), pursuant to changes effected by the Transport Legislation Amendment Act 2011 (NSW). References in these reasons to RMS and RTA are to the same body, but I have attempted to refer to RTA when dealing with what the body did between 1996 and 2002, and to RMS when dealing with what the same body did in the course of the litigation which was commenced some 10 years later.

14. An aerial photograph of the crash site indicating the paths of the two vehicles, albeit one taken in 2012, is reproduced below:

15. Mrs Walsh was proceeding generally westwards on 16 November 2002 having exited the southern driveway of the factory complex at Woodville Rd. She had seen the north-south traffic lights turn red, stopping the three lanes of traffic in each direction on Woodville Rd. She had also seen some vehicles emerge from Tangerine St turning right (southwards) to which she had given way. She drove straight across the intersection, intending to continue down Tangerine St. She drove very slowly; she said that she “inched” across the intersection. While doing so, the north-south traffic lights turned green.

16. Northbound traffic was banked up in the middle two lanes of Woodville Rd. The primary judge found that Mr Zraika, who was travelling northward on Woodville Rd, saw the stopped traffic, changed into the kerbside lane and proceeded through the intersection at around 65 km/h. It was not suggested that he had been speeding. (Mr Zraika when giving evidence some 12 years later denied that he had been in the kerbside lane, but the contemporaneous documents and evidence of other witnesses was contrary to this and the trial judge did not accept this aspect of his evidence. No challenge was made on appeal to that aspect of his Honour’s assessment of primary fact.)

17. Because of the vehicles to his right, stopped at the traffic lights, neither Mr Zraika nor Mrs Walsh could see one another’s vehicle until less than a second (which was less than the time required for either to react) before the collision.

18. Both drivers had disregarded signage at the intersection. The signage is important to many issues in the appeals, and so it is necessary in what follows to be quite precise. In 2002, a thin median strip separated the inbound and outbound lanes of the southern driveway to the factory complex. The plans approved by Council stated that the strip was to have a minimum width of one metre and a minimum length of five metres. On that median strip, there was a pole with a single “keep left” sign.

19. Much more importantly, on the other side of the driveway, to Mrs Walsh’s left, there was a “turn left only” sign indicating that all traffic exiting the factory complex must turn left onto Woodville Rd.

20. Mrs Walsh gave evidence in cross-examination that she did not see the “keep left” sign on the median strip (this will be relevant to one aspect of causation). Mrs Walsh at all times accepted that she did not see the other sign requiring her to turn left. To be sure, that sign was partially obscured by a metal mesh gate on the boundary of the factory complex which was open at the time. The police officer who attended at the scene noted at the time that “it isn’t very clearly erected for drivers to see”. Indeed, when Mrs Walsh returned to the site, she recalled being surprised to see the sign. A photograph of the sign showing the fence and the gate is below:

21. For detailed reasons that need not be summarised, and which were unchallenged on appeal, the primary judge concluded that although Mrs Walsh disregarded the left turn only sign, she did not for that reason enter the intersection unlawfully.

22. As for Mr Zraika, the northbound kerbside lane of Woodville Rd had painted on it a series of left turn arrows requiring drivers to turn left (westward) into Tangerine St. On the findings of the primary judge, Mr Zraika contravened r 92 of the Australian Road Rules, which was an offence provision. The contrary was not submitted on appeal. However, it is clear law that breach of a road rule is not sufficient to establish a breach of duty to take reasonable care: Sibley v Kais (1967) 118 CLR 424.

Liability of Mr Zraika – breach of duty

23. The primary judge found that Mr Zraika owed a duty of care to the plaintiff, but had not breached that duty. His Honour reasoned as follows.

24. First, the primary judge observed that the starting point for the purpose of s 5B of the Civil Liability Act 2002 (NSW) (CL Act) was the correct identification of the risk of harm against which it was alleged precautions ought to have been taken. In the present case, the risk of harm was the risk of the plaintiff being injured in a collision with a vehicle already in the intersection. Secondly, he observed that generally speaking a driver was entitled to expect that other road users will exercise ordinary care, although the inattention, inadvertence and even carelessness of others was “almost always” within reasonable prospect. Thirdly, his Honour gave some prominence to the views of Wood J in Henderson v Hassel (1986) 3 MVR 359 to the effect that although a driver who enters an intersection in accordance with a green light will not always be blameless in the event of a collision, the traffic control signal will be a powerful factor in his or her favour. Fourthly, his Honour found that the risk of harm was reasonably foreseeable by Mr Zraika, bearing in mind his familiarity with the stretch of roadway, that he ought to have known that there were movements from the driveway during the “all red” period of time between the phases when all traffic from Woodville Rd and Tangerine St was required to stop and that he ought to have had in mind that a vehicle exiting the driveway might still be in the intersection, unsighted by him. Fifthly, his Honour concluded that the risk was “not insignificant” within the meaning of s 5B(1)(b). Sixthly, his Honour concluded that Mrs Walsh was not a person unlawfully on the intersection, while Mr Zraika did enter the intersection in a way which was unlawful.

25. There was no challenge to any of those matters, all of which pointed towards Mr Zraika not having taken reasonable care. How then did his Honour conclude that there had been no breach? His Honour found that the “primary purpose” of the road rule breached by Mr Zraika was “efficiency of traffic movement”, rather than road safety: at [86]. This conclusion was based upon the green left arrow during two phases of the traffic light operation of northbound traffic on Woodville Rd, as a result of which the primary judge concluded that “remaining stopped at the lights in the left turn lane during ‘C’ phase would be a more significant breach of Rule 92, than Mr Zraika’s conduct”: at [86].

26. His Honour also relied upon Mrs Walsh having put herself into a position where her vehicle could not be seen by Mr Zraika by “hastening so slowly across the intersection when she must have known she had very limited time to complete the crossing safely”: at [87].

27. His Honour then said at [88]-[89]:

“Mr Zraika had the green light and, in the ordinary course, one would expect the intersection would be clear when ‘A’ phase commenced. There was [no] reason to suppose that he should have seen Mrs Walsh’s ute before entering the intersection. Even allowing for the high degree of vigilance at intersections that reasonable care requires of drivers, I am not persuaded that it was negligent of Mr Zraika to pass the vehicles at the stop line in the left turn lane when the lights turned green. That is to say, reasonable care did not require him to remain in lane 2 as he approached, in all circumstances.

I am not satisfied that Mr Zraika failed to take the precaution of keeping a proper lookout. Mrs Walsh said that although she was looking towards the left hand lane, she did not see Mr Zraika until it was too late for her to do anything, and she was travelling very slowly. I find that at all material times, at least until it was too late, Mrs Walsh and Mr Zraika were unsighted to each other, and could not have reasonably seen each other. But I am not persuaded Mr Zraika did not maintain that high degree of vigilance reasonable care requires as he approached and entered the intersection. He did see Mrs Walsh when she was there to be seen, but then it was too late” (original emphasis).

28. That reasoning cannot, in my respectful view, stand. First, although it may be accepted that Mr Zraika could not have seen Mrs Walsh’s vehicle until he entered the intersection, the primary judge himself found that it was reasonably foreseeable that another vehicle remained in the intersection. After all, the manoeuvre performed by Mr Zraika in changing to the left-most lane must have been prompted by his observation that despite the traffic lights on northbound traffic being green, both other lanes of traffic remained stopped. In those circumstances, it was far from improbable that there was an obstruction in the intersection. A single lane may be stopped because, for example, a vehicle stalls, or because of the inattention of its driver to the traffic signals, but where vehicles in both lanes were stopped, there was a real chance that the intersection was obstructed.

29. Secondly, although it may be accepted that both efficiency and safety inform a number of road rules, it was not valid to discount Mr Zraika’s non-compliance with r 92 by the consideration that at this intersection the compulsory left turn was primarily driven by efficiency. For one thing, phase “C” of the signals permitted a left turn from northbound Woodville Rd into Tangerine St when traffic was emerging from Tangerine St and turning right or left into Woodville Rd; it is quite clear that the compulsory left turn during that phase was essential for safety as well as efficiency. For another, it was not relevant to have regard to whether conduct which did not occur (remaining stopped against the lights in the left turn lane) would be a “more significant” breach of r 92. The question was whether the conduct which did occur – entering the intersection contrary to the signal, hoping to emerge at the other side and to rejoin the middle lane of Woodville Rd into which the kerbside lane merged – entailed a failure to take reasonable care. Counsel for Mr Zraika did not wish to be heard in support of this aspect of the reasons. I agree with his implicit acknowledgement that they do not support the conclusion that there was no breach.

30. Thirdly, the reasoning of the primary judge gave primacy to the favourable traffic light enjoyed by Mr Zraika. Wood J’s reasons in Henderson v Hassel contain a useful collection of authorities directed to the (necessarily qualified) proposition that drivers can generally expect other road users to obey traffic signals. However, reliance on that reasoning was inapt here. In the present case, although Mr Zraika enjoyed a green light, he entered the intersection unlawfully, in circumstances where it was found to be reasonably foreseeable that there was an obstruction in the intersection, while it was accepted that Mrs Walsh entered the intersection lawfully. The favourable traffic control signal had only limited relevance in those circumstances.

31. Ultimately, it was common ground on appeal that Mr Zraika was confronted with a reasonably foreseeable and not insignificant risk as he approached the intersection. The dispositive issue in relation to breach was that posed by s 5B(1)(c). A reasonable person in Mr Zraika’s position would not have changed lanes and proceeded from the kerbside lane through the intersection at 65 km/h. A reasonable person would have stayed in one of the centre lanes and waited for the traffic flow to resume. Even if the delay turned out to be extensive, a reasonable person would only enter the intersection from the kerbside left turn only lane at a slow speed and with considerable caution, against the possibility that there was an obstruction already in the intersection.

32. It follows that the determination of the questions concerning Mr Zraika’s breach of duty must be set aside.

Liability of Mr Zraika – causation

33. In a single sentence in the alternative, the primary judge considered that even if Mr Zraika had breached his duty of care his driving was not a necessary condition of the plaintiff’s injuries: at [92]. That reasoning was based upon evidence from one of the traffic experts that even had Mr Zraika been turning left, and therefore travelling at around 20 km/h, it was still “improbable that there would have been sufficient time even at the lower speed to still respond, perceive and react and then stop prior to impact”. Mr Zraika sought to maintain the favourable finding as to causation.

34. In my respectful opinion, Mr Zraika may be placing too much weight on that sentence. In light of the care with which his Honour’s reasons have been drafted, that sentence may well have been a slip. However, even if it is not, there are two reasons why Mr Zraika’s reliance upon the sentence as a finding on causation cannot stand. First, as both appellants contended, the breach of duty by Mr Zraika was in entering the intersection from the kerbside left turn only lane, with a view to continuing northwards. Had Mr Zraika not breached his duty, he would have remained in the middle northbound lane, behind the traffic banked up at the intersection waiting for Mrs Walsh to “inch” across. In that case, there would have been no collision and no damage.

35. Secondly, as noted at the outset, this was not a hearing of all issues on liability. In particular, an important issue raised on the pleadings was whether the injuries suffered by the plaintiff were caused by the collision on 16 November 2002. That issue (which turned on medical evidence) was not one of those determined by the primary judge. It was for that reason that the relevant question reserved for determination was whether Mr Zraika’s breach was “a legal cause of the collision between his vehicle and the vehicle driven by Mrs Walsh on 16th November 2002” (emphasis added). That also explains the limited nature of the cross-examination of the expert about whether or not compliance with Mr Zraika’s obligation to turn left into Tangerine St would have avoided a collision. Of course, if Mr Zraika had been travelling at less than one third of the speed (and therefore with only around one tenth of the kinetic energy) then the collision would have been much less powerful. Further, if Mr Zraika had been turning left, the collision would have been a glancing impact, rather than the broadside (or “T-bone”) collision which occurred. With respect, the primary judge erred in regarding the evidence about the inevitability of a collision as answering the question of causation in relation to the damage suffered by the plaintiff.

36. It follows that the judgment in favour of Mr Zraika must be set aside.

Apportionment as between Mrs Walsh and Mr Zraika

37. As a consequence of these conclusions, a question of apportionment between Mrs Walsh and Mr Zraika arises (for the first time). It is convenient to deal with that question immediately. I note for completeness that Mr Zraika’s participation in the agreement between all parties following judgment must carry with it an admission that if the favourable findings as to breach and causation are set aside, then he was liable to the plaintiff as well as being a joint tortfeasor against whom Mrs Walsh could seek statutory contribution. (Were that not so, then there would remain a question of liability turning on medical evidence, which is inconsistent with the main purpose of the agreement.)

38. Although lacking the advantage of seeing Mrs Walsh or Mr Zraika give evidence, it was not suggested that this Court should not itself apply s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to resolve the issue of apportionment. Plainly enough, it is authorised to do so by sub-sections 75A(6) and (10) of the Supreme Court Act.

39. Somewhat counter-intuitively, the written submissions for Mrs Walsh sought to maintain the finding that Mr Zraika was not liable, and made no submissions as to apportionment in the alternative. No oral submissions on apportionment were made by her.

40. Mr Zraika, for his part, submitted that Mrs Walsh’s “culpability was significantly higher, probably in the order of twice as much”, because she had disregarded the left-only sign and had crossed the intersection very slowly without sounding her horn, knowing the likelihood of cars potentially being in the kerbside lane. I am unable to agree with this. The contribution of Mr Zraika to the collision and his culpability substantially exceeded that of Mrs Walsh.

41. First, Mr Zraika, who (unlike Mrs Walsh) was familiar with the road, must be taken to have known that he was proceeding through an intersection from a lane which required him to turn left. Secondly, he was doing so without being able to see what, if anything, was obstructing the traffic in the other two northbound lanes. Indeed, he was doing so for the purpose of overtaking that traffic. Thirdly, his speed was much greater than should have been the case given the unlawfulness of his entry into the intersection and the probability that it was obstructed.

42. Against those matters, I bear in mind that Mrs Walsh waited for the north-south lights on Woodside Rd to turn red, gave way to the traffic from Tangerine St, and did not (unlike Mr Zraika) knowingly disregard a traffic direction. I accept that she contributed to the collision, insofar as she ought to have been aware that by reason of her slow pace, the north-south traffic lights had changed to green whilst she remained in the intersection. I have no difficulty accepting that driving too slowly can, on occasion, itself contribute to a collision.

43. I am satisfied it is just and equitable having regard to the responsibility of Mrs Walsh and Mr Zraika to apportion their liability 40% and 60% respectively.

Liability of Bankstown City Council

44. The primary judge concluded that the Council was negligent in failing to impose a condition requiring drivers to turn left out of the southern exit to the factory complex when granting development consent in 1997. In order to deal with this aspect of the Council’s appeal, particularly in relation to the operation of ss 44 and 43A of the CL Act, it is necessary to provide certain details of the history of the impugned development consent.

45. In 1996, Bottle Containers Pty Ltd, a company within the “Cospak” group, owned a large parcel of land (exceeding 17,000 square metres) on the eastern side of Woodville Rd. On 3 December 1996, it applied for development approval to sub-divide the land into two lots, to construct 16 factory units on the land closest to Tangerine St, and to build a warehouse and office block on the remaining land. The estimated cost of development exceeded $2.5 million. It anticipated that there would be 94 new car-parking spaces.

44. At the time, there were two existing points of access from Woodville Rd to the lot: that at the intersection with Tangerine St with which these appeals are concerned, and a separate access point somewhat to the north. An internal document written by the Council’s planner stated in a box provided for comments following a site inspection:

“Existing factory buildings as on survey plan. Few pine trees along site frontage. Two driveways existing – southernmost driveway opposite set of lights. Factory adjoins to north, [b]ulky goods retailing uses to the south.”

47. In January 1997, a traffic effects statement was provided to Council, which stated that the proposed industrial units complex would generate around some 80 daily inward/outward movements by small vehicles, as well as some movements by larger trucks. The report noted that:

“The south access will, as now, benefit from the existing traffic lights easing entry exit from the southbound or northbound direction.

This access will experience a greater proportion of light traffic.”

48. It may be inferred from the number of car-parking spaces and the statements reproduced above that there were expected to be fewer movements of trucks and semi-trailers, but a larger number of employees and customers, if the proposed development were approved and constructed.

49. It was common ground that the application engaged the provisions of State Environmental Planning Policy No 11 – Traffic Generating Developments (SEPP 11). Accordingly, the application was forwarded to the RTA.

50. The development application was to come before the Council Development Committee on 11 March 1997. The composition of that committee is not established on the evidence. If it complied with the “Guide to Traffic Generating Developments” published by the RTA in 1993 which was designed to govern the administration of SEPP 11 (and there is no reason to think that it did not), then there would have been an RTA representative: see cl 9.4.2 of that document. The same clause provided that the committee advised councils “on behalf of the RTA”.

51. The police representative on the committee, Senior Constable Bovill from the local traffic command at Bass Hill, could not attend that meeting and provided a written submission which achieved prominence at trial and in the appeal. Senior Constable Bovill submitted that the driveway provide only for exit:

“Due to the utilisation of the north driveway, with access to the units and to reduce conflicts with the traffic flow on Woodville Rd, the driveway should be an EXIT ONLY with the reduced width of 4-6 metres. The driveway should also be offset, to such a degree as to prevent any attempts to enter off Woodville Rd.”

52. The letter also said that it would be necessary to provide a deceleration lane for entry into the north entry/exit driveway, and stated that because the intended use of the 16 industrial units was not known, the traffic and parking requirements could not accurately be assessed. In one section, the letter gave attention to restricting the ways in which traffic could turn. The letter stated:

“A suitable permanent device would need to be installed within Lot A, south of Unit 2, to ensure that vehicles are not able to turn right from the one-way section of roadway. The roadway in Lot A also requires adequate road markings and signposting, to indicate that the movement is one-way clockwise ONLY.”

53. The letter concluded:

“It is considered that the re-development is NOT acceptable due to the shortfalls in the basic design and layout together with the unknown usage of the units in Lot A.

Accordingly the Police Service DOES NOT GIVE CONSENT to the application for re-development or the plan submitted.”

54. However, on 11 March 1997, the Council Development Committee met and, according to a memorandum dated the next day from the traffic engineer to the planner within the Council with responsibility for the application, there were no objections to the proposal. No other documents relating to that meeting were in evidence, nor was there any testimonial evidence bearing on what had happened almost two decades prior to the trial.

55. The primary judge found, and it was submitted on the appeal, that the traffic engineer’s memorandum was inaccurate insofar as it did not reflect the attitude of the police. That may or may not be so, depending on the view taken of the status of Senior Constable Bovill’s letter, but nothing turns on this. It is plain from the assessment of the development application by the planner that he was aware of the police attitude. Senior Constable Bovill’s letter had been addressed to the planner, and its contents were reflected in his assessment. The planner’s handwritten comments on the (internal) Council document included the following statements:

“Police (Bass Hill) suggest a number of amendments to the proposal to effect compliance with RTA guidelines.

…

SEPP 11 – Local Traffic Committee considered the proposal and advised no objections to proposal.”

56. The form directed attention to whether the proposal was satisfactory having regard to “vehicular ‘access’ arrangements”. The planner wrote the following comment:

“Traffic Committee indicate no objections. Southern driveway to be modified to be exit only.”

57. By way of summary, the planner wrote:

“Condition of consent to address redesign of driveway access points and internal road design to comply with RTA guidelines.”

The planner recommended consent be granted on that basis.

58. On 16 or 17 April 1997 (the internal document was signed by Council’s delegated officer on the latter date, but the proponent was told the endorsed date of consent was 16 April 1997 – nothing turns on the discrepancy) consent was granted, but in a way which did not, on its face, reflect all aspects of the assessment.

59. Condition 4 provided for an amendment to the application. It stated:

“The application shall be amended as follows: -

(i) Driveway access, car parking and garbage storage location shall be amended as shown on the approved plan.

The applicant is required to submit the amended plans prior to release of the Building Application.”

60. The proponent could at any time prior to the determination by the Council amend its application, but the function of the Council was to consent, either unconditionally or subject to conditions, or refuse the (amended) application (I address the legislative regime in more detail below when dealing with s 44). The position at approximately the relevant time was as stated by Pearlman CJ in Carr v Minister for Land and Water Conservation [2000] NSWLEC 89; (2000) 109 LGERA 175 at [49]:

“An applicant may amend or vary a development application in the course of its assessment by the consent authority (cl 48A of the Environmental Planning and Assessment Regulation 1994 (NSW) expressly allows for such a possibility) but there is no power under the EPA Act or that Regulation for the consent authority of its own motion to make amendments or variations to a development application. What must be determined by the consent authority is the development application as lodged or as subsequently amended or varied by the applicant. The consent authority is not empowered to grant consent to a development which is significantly different from the development which was sought because, as is self-evident, that would not amount to a grant of consent to 'the development application’” (emphasis in original).

It is unclear whether there was strict compliance with the regime as stated above, or whether the Council unilaterally varied, relevantly, the driveway access proposed in the application.

61. The plan originally prepared on 27 November 1996 and stamped as approved by Bankstown City Council and signed by the planner with carriage of the application contains, consistently with condition 4, handwritten amendments to both driveway accesses and replaces some car-parking with garbage storage locations. In relation to the presently relevant southern exit to Woodville Rd, the handwriting is as follows:

“Raised Concrete Median with appropriate signposting. Min. width 1.0 m and min. length 5.0 m.”

62. The access to Woodville Rd is divided by handwritten annotations with a “6 m (min)” entrance route and a “4 m (min)” exit route, separated by a hatched hand-drawn area corresponding to the proposed median strip separating the way in and the way out of the industrial estate.

63. Those amendments seem not to have been regarded as minor. The introduction of a median strip was the subject of a deal of correspondence subsequently, principally directed to the problem that it meant that trucks and other long vehicles could only use the entrance if they turned left from the middle lane. As will be seen, the developer later obtained the agreement of the RTA to remove the median strip, although no steps were taken to do so prior to 2002. The position when the trial took place was that the median strip had been removed.

64. It was submitted when the appeal was heard that there was no evidence as to when the handwriting was placed on the approved plan, and that the trial had proceeded on the basis that the southern access was entirely unregulated. I think the true position is slightly different. The evidence permits a confident inference that the handwritten annotation to the approved plan reflected the amendment contained in condition 4 to the development consent. First, it corresponds to the terms of condition 4. Secondly, also in evidence was the 1998 approved plan relating to the building permit issued by Council. This plan was amended in the way contemplated by condition 4. On that plan, the median strip has been professionally drafted. The plan also includes statements to the effect “Median Strip (DA Cond)”. Further, there is no doubt that a median strip was constructed on both of the access points to the site. There was photographic evidence taken in 2014 of the median strip on the northern entrance. That on the southern entrance has been removed, but it is plain (particularly from the December 2002 work order discussed below) that there was a median strip installed and present at the time of the collision, and indeed traces of it may be seen in the aerial photograph reproduced earlier in these reasons.

65. I conclude that the development application was amended by replacing the wide, unregulated northern and southern access points by dividing each access point by a raised median strip, allowing for a 6 m width for vehicles entering and a 4 m width for vehicles exiting. Whether the developer was consulted prior to the consent issuing, and whether this reflected something of a compromise in light of the objection from police is unclear on the evidence.

66. The plan approved by Council was also amended so as to prevent internal traffic from turning right, in accordance with the recommendation from Senior Constable Bovill. Next to an additional internal median strip, the approved plan contains the following annotation:

“Raised Concrete Median (with appropriate signage) generally in shape indicated to control traffic flow and direction according to arrowing.”

67. But it is also quite plain that, contrary to the police submission, Council did not confine the southern access point to exit only. There is nothing in the evidence to explain how Council came to approve the development on conditions which diverged from those recommended by its planner. (The witnesses at trial appreciated that Council’s records were incomplete, and there was evidence that much had been lost in a fire.)

68. Further, I accept Mrs Walsh’s submission that there was nothing in the evidence to suggest that Council had required vehicles exiting the site from the southern exit to turn left.

69. There is also nothing in the evidence to disclose how, precisely, the turn left sign which was in place in 2002 but not seen by Mrs Walsh came to be installed. The primary judge recognised the evidentiary uncertainty, but concluded that it was probably installed by the developer at around the time of construction: at [146]. No challenge was made in either appeal to that finding of fact. (For completeness, it is difficult to reconcile that timing with the statement in the assumptions to one of the experts at Black 471G, based on a marking on the reverse of the sign, that it had been manufactured by DeNeefe Signs Pty Ltd in March 2000, but so far as I can see, there was no primary evidence of the marking on the sign, and it is likely that the letter was to be read as assumption, as opposed to evidence. In any event, nothing material turns upon this.)

70. Condition 8 should also be mentioned. It provided that the driveways in front of the site connecting with Woodville Rd were to be constructed by Council at the developer’s expense. There was also capacity for further application to be made for those works to be carried out by a contractor. Precisely when and by whom the driveways were constructed is not disclosed by the evidence, so far as I can see.

71. Although the plans approved for the purposes of the building permit were dated 22 September 1998, the evidence does not disclose precisely when the development of lot A including the changes to the access points to Woodville Rd was carried out. However, the following month, on 22 October 1998 there was a meeting between Mr Mick Bridgman, a traffic planning and road safety consultant retained by the developer, and three RTA representatives including Mr Ken Lysaught. The subject of the meeting was “the development proposals, likely future traffic generation levels and potential road safety issues” concerning the southern access point leading directly into the signalised intersection of Woodville Rd and Tangerine St. According to the minutes of the meeting, all agreed that the favoured solution was to “control the proposed site entry/exit with traffic signals forming a cross intersection with Tangerine Street”. (It seems reasonable to infer that construction was not, at that stage, complete, given the timing of the building permit and the reference to “proposed”.) The consultant agreed to prepare plans and the RTA indicated they had “no funds for this work and all costs should be at the developer’s expense”. Following that meeting, a deal of planning took place culminating in the drafting of quite detailed designs and the consent of the RTA, subject to the payment of a performance bond in the form of a bank guarantee in the amount of $10,000 and a contribution towards future maintenance of the signals in the amount of $65,200.

72. I return to these matters below when dealing with the liability of RMS. So far as the Council was concerned, there is little more to be said. In late May 1999, Mr Bridgman wrote to the Council stating that his company had been engaged to design and attain RTA approval to signalised access “as suggested by the RTA (Blacktown)”. His letter said:

“Initial concern raised by the RTA and Cospak indicate that future uncontrolled access to/from the site to Woodville Rd opposite Tangerine Street may prove hazardous to existing traffic on Woodville Road and traffic entering/exiting a development of this magnitude.”

73. The letter sought a meeting to “modify the existing consent conditions” and the layout of car-parking and landscaping areas. Mr Bridgman stated that he understood that “this may be undertaken by way of a Section 102 Application or alternatively 962 Form”.

74. However, no application under the (former) s 102 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to modify the 1997 consent was ever made, so far as the evidence discloses. To the contrary, there is a handwritten note between two Council officers dealing with the point which stated:

“Woodville Road is an RTA Controlled Road. Provided RTA agree to signalisation, which they have, I don’t think the consent requires modification.”

75. Thereafter there appear to have been further negotiations between Mr Bridgman and the RTA, two aspects of which are presently relevant. The first is that on 26 July 1999, the RTA advised that:

“The RTA has decided to allow the central median in the access road to be deleted instead, thus providing room for 12.5 m trucks to turn into the access road from wholly within the left lane of Woodville Road.”

76. Ultimately agreement seems to have been reached between the RTA and the planning consultants. However, for reasons that, so far as I can see, are not exposed by the evidence, those steps did not take place. (That means that it is unnecessary to pause to consider whether, as some officers within the Council seemed to believe, the developer and the RTA could agree to construct works inconsistent with the conditions imposed by the Council without the need for a modification.) Prior to 16 November 2002, there were no traffic control signals directed to traffic exiting from the access point into the intersection, which was built with the median strip as indicated on the plans.

77. The upshot of the foregoing is that the relevant decision by Council was the granting of development consent in April 1997. There appears to have been no attack on the earlier consents which permitted driveway access into the otherwise signalised intersection (if indeed the driveway access post-dated the signalisation). Nor was there any subsequent modification of that consent dealing with access from lot A to the intersection, although that had been explored at around the same time as construction. Further, if (as condition 8 contemplated) the Council itself constructed the driveway connecting the site to Woodville Rd, no complaint was made of that. Finally, although an attack was pleaded based upon the series of change of use development applications made as the various buildings in the industrial complex were tenanted, this was rejected by the primary judge, and there was no notice of contention on this issue.

78. Accordingly, as was common ground when the appeal was heard, the Council’s liability turned upon the function exercised by it in assessing and determining the development application in late 1996 and early 1997. To anticipate what follows, there was no contemporaneous evidence that anyone suggested that Council insist that vehicles exiting from the southern driveway be obliged to turn left. In particular, this was not something advocated by Senior Constable Bovill. That said, it is clear that the Council actively considered imposing conditions in relation to the driveway, including requiring a median strip which the developer had not sought.

Did s 44 of the CL Act render the Council not liable?

79. Section 44 of the CL Act is as follows:

“44 When public or other authority not liable for failure to exercise regulatory functions

(1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.

(2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity.”

80. Section 41 defines “function” to include “a power, authority or duty”, and “exercise a function” to include to “perform a duty”. The conflation of power and duty in the one defined term may help to explain the closing words in s 44(1).

81. The Council pleaded this section in its defence and specifically challenged in its appeal the failure by the primary judge to find in its favour on this issue. If the section is made out, then that would be a complete answer to the Council’s liability. It is appropriate, therefore, to deal with this at the outset: cf Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 at [53]-[54] and see Roads and Maritime Services v Grant [2015] NSWCA 138 at [12]. That was the course taken by the primary judge, who dealt with the issue early in his reasons as follows:

“In my judgment, s 44 can be put to one side as it applies to liability said to be based upon the failure to exercise or consider exercising a function to prohibit or regulate an activity. With respect, I agree with Beech-Jones J in Lee for the reasons his Honour gives ... that ‘s 44 is meant to encompass a true non-feasance case at common law’ (see [396]). The present case does not raise the difficulties that arose in Lee about ‘inter-connected statutory powers’. Moreover, I agree with his Honour, by reference to Pyrenees at 347[25], that, assuming duty, Sharif is an individual among the class of users of the intersection whose personal security is intended to be protected by the exercise of the s 90 and 91 EPA powers. Accordingly, he would have ‘locus standi to seek a public law remedy’, as artificial as that conclusion may seem in the case of an unborn child: see Lee at [400] – [402]” (at [107]).

82. The reference to Lee was a reference to Beech-Jones J’s judgment in Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280, which contains a valuable discussion of s 44 at [389]-[402].

83. The Council challenged this aspect of the reasons of the primary judge. First, it submitted that there was nothing in the text or context of s 44 which supported an approach which required what it contended was a narrow construction of “any function” so as to exclude the imposition of a condition, as opposed to the approval or rejection of a development application. It relied upon an obiter passage in the reasons of Basten JA in Roads and Maritime Services v Grant at [29], which suggested that “the erection of traffic lights would constitute the exercise of a function” for the purposes of the section, and noted that the question had been, expressly, left open by Simpson J in Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165 at [188]-[191]. Secondly, the Council submitted that neither the plaintiff nor his parents would have had any “personal interest” greater than the interest of any other member of the public, so as to have satisfied the threshold test for standing to bring an application in the nature of mandamus, as well as noting that because the development was not “designated development”, appeals were confined to the applicant and did not extend to objectors: see (former) ss 97 and 98 of the EPA Act. Thirdly, the Council submitted that it “could not have been required to exercise the function in proceedings instituted by the plaintiff”, there being a statutory discretion as opposed to a statutory duty.

84. Mrs Walsh supported the reasoning of the primary judge, saying that it was wrong to characterise the formulation or omission of each condition of development consent as a separate exercise of Council’s statutory function.

85. No attention was given in any of the submissions to the “open standing” provisions permitting any person to commence proceedings in Class 4 of the jurisdiction of the Land and Environment Court seeking judicial review of the exercise of a function imposed by a planning or environmental law (indeed, such jurisdiction is exclusive to the Supreme Court and so s 65 of the Supreme Court Act 1970 (NSW), to which Council adverted, is inapplicable). That said, my preliminary view, unassisted by argument, is to doubt that s 44 should be construed in a way which turns upon the open standing provisions in the Land and Environment Court, because the closing words of s 44(1) are on their face words of limitation. However, it is unnecessary to express a concluded view on this point.

86. Nor were submissions directed to the deemed refusal provisions whereby a local council is deemed to have refused consent to a development application after a (relatively short) period of time. Is a deemed refusal (from which an appeal lies) a “failure to exercise” or a “failure to consider exercising” to which s 44 extends? I express no view on how those provisions engage s 44.

87. In Lee, Beech-Jones J said that it seemed clear that s 44 was “meant to encompass a true non-feasance case at common law”, and tentatively suggested that “any case that is truly characterised as a misfeasance case at common law is not one that engages s 44”: at [396] and [399]. Beech-Jones J also adverted to the difficulty caused by the section in its application to a case such as the present, where it might be said that although there was undoubtedly an exercise of power by the Council granting development consent subject to conditions, there was a failure to exercise “an interconnected statutory power” to impose a further condition.

88. The issues arising from s 44 in the wide range of statutory contexts in which it must apply are not free from complexity. In what follows, I seek to analyse the position only insofar as is necessary for the purposes of this appeal, which concerns the exercise of power to grant development consent (or, alternatively, the non-exercise of power to impose a particular condition upon that consent).

89. Both subsections (1) and (2) of s 44 turn upon identifying the “function” of the public or other authority at the requisite level of specificity or generality. The following matters may be observed about what such a “function” is.

90. First, the absence of liability on the part of the public authority is an absence of liability which is based on the failure to exercise or to consider exercising the function. That naturally directs attention to the way in which the plaintiff’s case has been formulated. The section does not on its natural reading permit a defendant authority to reformulate the basis of alleged liability so that, reformulated, it falls within s 44 thereby providing the public authority with a defence. Primary attention is to be given to the allegations made by the plaintiff.

91. Secondly, that is not to say that the plaintiff’s formulation is determinative. A plaintiff whose lawyers are conscious of s 44 might artificially seek to recast a claim so as to avoid the operation of the section. But for so long as legal obligations have turned on a distinction between misfeasance and nonfeasance there have been debates as to whether conduct is properly described as the former or the latter. Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 is a familiar example. One hundred and seventy years ago, Lord Denman CJ observed that “no assumption can be more unfounded” than that there was a “plain and obvious distinction” between misfeasance and nonfeasance. His Lordship gave an example not dissimilar to that arising in these appeals:

“If A is authorised to make a bridge with parapets, but makes it without them, does the offence consist in the construction of the unsecured bridge, or in the neglect to secure it?”: The Queen v The Great North of England Railway Co (1846) 9 QB 315 at 325; 115 ER 1294 at 1298.

Hence Beech-Jones J’s reference in Lee to a case of “true” nonfeasance.

92. Thirdly, s 44(1) necessarily extends both to the function of prohibiting an activity and to the function of regulating an activity. That is plain on the face of the provision, and is confirmed by the observation that subsection (2) only applies to the latter. In this context, it is natural to distinguish between the absolute prohibition of an activity, and its qualified regulation by the granting of conditional approval. That distinction is a familiar one in this context: see Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 762 (Dixon J), and the discussion in ch 15 of D Pearce and S Argument, Delegated Legislation in Australia, (4th ed, 2012, LexisNexis Butterworths).

93. Fourthly, the explication of the matters which constitute the regulation of an activity in subsection (2) does not descend to the level of the individual conditions attaching to a licence, permit or other authority, although such conditions are the gravamen of most forms of regulation. That tells against the defence afforded by s 44 being directed to a failure to exercise or to consider exercising the power to grant subject to conditions when determining to regulate an activity by issuing a licence or permit or other authority.

94. Fifthly, the statutory regime applicable in the present case involved (using the section numbering applicable in 1997, which has subsequently changed) the making of a development application (s 77), its notification to nearby land owners and appropriate public authorities (s 84), the consideration of any submissions made and the suite of considerations identified in s 90, and then, pursuant to s 91(1), the determination of the application by:

“(a) the granting of consent to that application, either unconditionally or subject to conditions, or

(b) the refusing of consent to that application.”

95. The primary judge was, in my view, correct to conclude that the alleged failure to impose a particular condition upon the granting of consent to the development application was not a failure to which s 44 applied. The relevant “function” of the Council was the assessment and determination of the development application.

96. It would be quite artificial to regard the exercise of power under s 91(1)(a), on a single occasion recorded in a single instrument, as in fact comprising the separate functions of (i) granting consent to the development application, but at the same time (ii) imposing conditions upon the grant of consent. The power to grant consent subject to conditions is conferred in the one paragraph: paragraph (a) of s 91(1). The two aspects of the power cannot sensibly be separated. Indeed, there is a body of law (commonly associated with Mison v Randwick Municipal Council (1991) 23 NSWLR 734) requiring the consent authority to determine all important aspects of the application.

97. The position would be different if the application before the Council was to exercise its power (then conferred by s 102 of the EPA Act) to modify a particular condition in an existing development consent. However, as noted above, although steps were taken to that end, ultimately no such application was made to the Council.

98. Both as a matter of form and substance, there is a single decision by a council determining a development application. This was not a case where there was a failure to exercise or to consider exercising the function of determining the development application: the Council did so, favourably, although subject to conditions. On the view I take, that is sufficient to displace s 44.

99. Even if I be wrong about that, this is not even a case where Council failed to exercise or to consider exercising the function of imposing conditions on the southern access point from the land. The Council did in fact impose conditions, including the creation of a median strip on that access point and the erection of appropriate signage, which went beyond what the developer had proposed and which were squarely directed to the flow of traffic at the southern access point. True it is that the plaintiff and Mrs Walsh alleged that further restrictions should have been imposed by the Council, requiring all exiting traffic to turn left. But I do not see any sound basis for construing s 44 so that it is engaged just because it is alleged that a particular condition was not imposed in circumstances where another condition directed to the same aspect of the development was imposed. In other words, even if this were properly characterised as a case about interconnected statutory powers to grant consent and to impose conditions, the difficulties referred to in Lee do not arise.

100. To return to the observations of Beech-Jones J, this was not a “true non-feasance case”, irrespective of whether the relevant “function” be the determination of the development application or the imposition of conditions regulating traffic at the southern driveway. Having reached that conclusion, it is not necessary to express a view as to the alternative reasoning of the primary judge on s 44, in the last two sentences of [107] reproduced above, dealing with standing to enforce public law remedies.

101. Finally, I would note that the passage in the reasons of Basten JA in Roads and Maritime Services v Grant to which the Council referred was not dealing with the function of assessing and determining applications for development approval for local councils, or the distinction between unconditional and conditional approvals, or indeed with local councils at all. Nothing in the foregoing is necessarily inconsistent with a decision of a road authority to erect traffic lights at an intersection being a “function” for the purposes of s 44. I do not consider that the passage bears upon the appropriate construction of s 44 in its application to a planning authority faced with a development application at all.

Did the Council owe a duty?

102. The primary judge appreciated that the Court was asked to find a novel duty of care, and considered the matter in detail at [108]-[135]. His Honour concluded that the Council owed a duty of care:

“to road users crossing the intersection to exercise reasonable care in discharging its statutory functions for the avoidance of the risk of personal injury arising out of traffic conflicts engendered by the development”: at [134].

103. An important element in his Honour’s reasoning was that the Council was required to have regard to public safety. At the forefront of the Council’s appeal was a challenge to this proposition.

104. The Council submitted that because its power to consent to development was informed by a “milieu of interests” (including the proponent’s interests, the interests of users of property, the interests of neighbouring landholders and the public interest) and because its decisions were subject to appeal and susceptible to administrative law remedies, the imposition of a private law duty of care was inconsistent with the statutory scheme. In support of that submission, the Council emphasised three additional features of the statutory scheme. The first was that traffic safety was not, at least in terms, one of the (numerous) mandatory relevant considerations to which the Council was required, by s 90 of the EPA Act, to have regard. To the contrary, the Council submitted that questions of safety were resolved by the involvement of RMS, which was ensured by the provisions of SEPP 11. Secondly, the Council submitted that to the extent that it was required to have regard to traffic safety, that was but one of many matters, and did not trump other, potentially competing, considerations. Thirdly, the Council submitted that this was not a case where the exercise of power was conditional upon the Council being satisfied that adequate traffic safety measures were in place.

105. I would respectfully disagree with the submissions made in relation to the way in which questions of public safety bear upon the exercise of Council’s power to grant development consent. It is to be recalled that no activity is absolutely safe, that every activity involving motor vehicles inherently carries with it some risk of injury, that a suite of engineering and design standards will, as a matter of course, be imposed by councils (often at the building approval, rather than development approval stage) in order to minimise known risks, and that at the very least, questions of public safety bear directly upon the exercise of power through the obligations for Council to have regard to the social and economic effect of that development in the locality (s 90(1)(d)), whether the “proposed means of entrance to and exit from that development … are adequate” (s 90(1)(i)) and the public interest (s 90(1)(r)). My conclusion is the same as that of the primary judge, and differs from what appears to have been common ground in Lee: see at [355].

106. The Council’s submission that it owed no duty is a large one. The sorts of “development” which may be the subject of an application to a local council are extremely varied. Indeed, very commonly (as in this case) a single “development” may comprise a number of elements, such as subdivision of land, permission to build structures with a range of varying intended uses, as well as ancillary internal and external road works. If there be no such duty in relation to the risk of personal injury arising out of traffic conflicts, it might well follow that there would be no such duty in relation to other risks of personal injury arising out of other aspects of a development. Even if attention be confined to traffic, it is also important to recall that for the vast majority of roads in New South Wales, local councils are themselves “road authorities” and have distinct powers, duties and privileges under separate legislation governing public roads, to which any analysis as to a duty of care must be attuned: see Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364; 89 NSWLR 1 at [159]-[161] and [190]. Indeed, the analysis in this very case would be quite different had the relevant access point been to a road which was not an arterial road.

107. It was common ground that the judgment of the primary judge against the Council could only be maintained if the primary judge’s finding that the standard of care required by s 43A was breached is satisfied. In those circumstances, it is appropriate immediately to turn to s 43A. I am conscious that that approach leaves unsettled the important question whether the Council as consent authority owes a duty as found by the primary judge. However, the broader interests of litigants and their advisers are better served if that question is resolved in an appeal where it is necessary to the outcome (not least because doing so directly bears upon the suitability of the decision for a grant of special leave). Further, and without conveying any implied criticism of the forensic choices made by the Council, it appeared that greatest attention on appeal was directed to s 43A, which was – correctly – perceived to be the weakest link in the chain of reasoning on which the liability of the Council depended. I add that I agree with what Gleeson JA has said regarding the formulation of any duty owed by the Council.

Section 43A of the CL Act

108. There was no dispute that the power exercised by the Council to grant consent conditionally was a “special statutory power” conferred on it within the meaning of s 43A(2) of the CL Act, or that the liability upon which the Council was sued was “based on” the exercise of that power. It followed that s 43A altered the standard of care applicable to the Council. Section 43A(3) provides:

“For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.”

109. Section 43A assumes the existence of a duty of care and identifies the standard to be applied in determining whether that duty has been breached: Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10 at [234] and [272]. Another way of describing the operation of the section is that s 43A confers a qualified immunity upon a defendant where that section is applicable: Roads and Maritime Services v Grant at [57].

110. There was also no dispute between the parties to the appeals as to the proper approach to be taken to the standard imposed by s 43A. Obviously, the source of that statutory standard is derived from the judgment in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, but it is necessary to apply those words, originally uttered in a public law context and which have subsequently given rise to a variety of characterisations and reformulations in that context (see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332) to the area of tortious liability. The context is different, and it is important to apply the legislative text. In cases where s 43A applies, the court must look at the matter having regard to what the authority in question could properly consider a reasonable exercise of the power: Curtis at [6]. As Bathurst CJ there said, “[i]f the authority could properly consider what was done was a reasonable exercise of the power then there will be no liability”. To the same point are the observations of Basten JA, with which Beazley P agreed, in Curtis at [278]: the court is required to consider whether no authority properly considering the matter could consider it to be reasonable. His Honour stated that the approach resembled the test for apprehended bias, in that rather than assessing reasonableness for itself, the court was required to “view the matter through the eyes of a responsible public authority”.

109. It is best to reproduce in its entirety the dispositive portion of his Honour’s reasons on this issue at [168]-[169]:

“Notwithstanding the memo from BCC’s traffic engineer (Exhibit 4D9) that the CDC had no objections, which from Exhibit 3D7, Tab 4, the assessor knew was erroneous, I am satisfied that no consent authority properly considering the traffic movement and safety matters raised at CDC of which it was aware could have decided to leave movements into and out of the driveway entirely unrestricted. Viewed from the standpoint of a responsible authority, a reasonable exercise of the powers conferred by s 90 and 91 EPA required the imposition of conditions restricting traffic movement into and out of the southern driveway. Given the unanimous evidence of the experienced traffic engineers I have set out above, a responsible council would have imposed conditions giving effect to the prescription expressed by Mr Hollyoak. I appreciate that Mr Hallam had no difficulty with traffic entering the driveway from Tangerine St or indeed from the southbound lanes of Woodville Rd. I am also mindful of the perceived difficulty with restricting right turns from the northbound lane 3 on Woodville Rd. But given the material the assessor had available at the time he made his decision, the exit only option would have been selected by the hypothetical responsible authority involving a suitably offset driveway supplemented by an island requiring drivers to turn left into the southbound lanes of Woodville Rd. This option would have overcome the perceived legal difficulty, because the driveway would not, as a matter of practicality, be accessible by a right turn from northbound traffic on Woodville Rd. It would also have excluded traffic heading east out of Tangerine St. I do not fully accept Mr Hallam’s evidence that there was no risk with this traffic. Unrestricted movement out of the driveway permitted right turns into the northbound lanes of Woodville Rd. Traffic conflict may arise between a driver exiting the driveway to turn north into Woodville Rd and another proceeding from Tangerine St, straight across the intersection in an attempt to enter the driveway as configured on the approved plans.

I appreciate that Mr Hollyoak’s prescription leaves the potential for collisions between traffic turning left out of the driveway and other traffic heading south on Woodville Rd. However, this is an area of conflict that a responsible authority could properly consider ought to be left to the expectation that exiting drivers will exercise reasonable care for their own safety. The manoeuvre does not involve the same magnitude of risk of collision as unrestricted movements across the intersection” (original emphasis).

112. Then, after considering the matters addressed by s 5B(2), his Honour concluded at [170] that the Council:

“was negligent in failing to take the precautions I have identified against the risk of personal injury resulting from collisions involving vehicles exiting the premises and driving across the intersection, applying the s 43A standard.”

113. In order to resolve the Council’s challenge to that reasoning and conclusion, it will be necessary to address the detail of the evidence. However, the following matters may be noted immediately.

114. First, although when dealing with Court of Appeal authority, his Honour reproduced the Wednesbury formulation (at [158]), at no stage did the primary judge apply that attenuated standard in terms to the conduct of the Council. It is true that the opening sentence of [168] reproduced above comes close to the test stated by statute, although it omits the opening words “unless the act or omission was in the circumstances so unreasonable” and gives a partial gloss to the closing words. The Council criticised the reference by his Honour twice thereafter in those paragraphs to conditions which a “hypothetical responsible council” would have imposed.

115. In Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; 57 MVR 80 at [88] this Court said that it would be preferable to avoid substituting a gloss (in that case, “irrational”) for the statutory language.

116. By framing the inquiry in terms of what the “hypothetical responsible authority” would have done, his Honour appears to have applied a different test, and one which may be more easily satisfied than the heightened standard imposed by s 43A. As it was put in the Council’s written submissions:

“[t]his inverts the inquiry required by s 43A. The test is whether no reasonable Council would have failed to impose a condition that the driveway be modified to include a triangular shaped island directing traffic in a southerly direction along Woodville Rd.”

117. Secondly, there was uncontroversial evidence that “there are a number of locations in Sydney at which unsignalised driveways enter traffic signals without turning restrictions imposed”. That said, such intersections present relatively unusual challenges to motorists. The motorist entering the intersection from the driveway will have a less clear view of the traffic signals, and will be conscious that other traffic may not be expecting his or her entry. Nevertheless, there was no evidence to suggest that all such intersections were so negligently designed as to satisfy the elevated s 43A standard. Nor was there evidence to suggest that the particular anticipated vehicle movements from the industrial complex onto the intersection of Woodville Rd and Tangerine St were such as to make such a configuration an unreasonable exercise of Council’s power.

118. Thirdly, although the primary judge and Mrs Walsh placed great weight upon the March 1997 letter from Senior Constable Bovill, that letter focussed upon the southern access being exit only (as had been the case for the 1995 bulk materials consent and the first version of the plan drawn for the 1997 consent). Senior Constable Bovill did not recommend that traffic exiting be required to turn left. Yet it may be inferred that the officer had expertise and experience sufficient to warrant being on the Council Development Committee, and made detailed suggestions, including descending to the detail of introducing median strips and signage to ensure that internal traffic within the development was one-way. As noted above, that suggestion – the only suggestion relating to mandated turning by vehicles within the property – was adopted. The failure of the Senior Constable’s letter to address the direction in which traffic exiting the development from the southern access point turned tells against a conclusion that no authority could properly consider the failure to insist upon a left turn only condition to be a reasonable exercise of power.

119. It is now necessary to turn to the detail of the evidence, because in addition to the foregoing the Council made two further submissions: that the experts’ opinions were based on hindsight, and that there was no basis in the evidence for the conclusion of the primary judge that a suitably offset driveway supplemented by an island requiring drivers to turn left was what (any) hypothetical responsible authority would have required.

120. I have concluded that there is force in the former of those submissions. Further, I think the better view is that, properly understood, the experts were agreed that a sign requiring motorists leaving the site to turn left only was the minimum obligation. However, it must be acknowledged that there is some difficulty dealing with the expert evidence, which it is necessary to address in order to resolve the submissions on this issue.

121. The three traffic experts produced a joint report. On the topic of “the reasonableness or otherwise of the Bankstown City Council’s response to the 1996 DA”, the report stated:

“All agree that BCC follow[ed] the correct procedures in assessing the 1996 DA and it was agreed that the approved access arrangement was the minimum required under the process and standards referred to above.”

122. On the topic as to whether the left turn only sign was placed appropriately, the joint report stated “[a]ll agree that the location of the left turn only sign at the site driveway was physically located appropriately”. That said, all agreed that it would have been preferable for the sign not to have been partially obscured by the gate, although at least two of the three did not regard that as a necessary alteration. But nowhere in the joint report was it suggested that no reasonable council would fail to put in place a triangular median strip or “island” in the way found by the primary judge. To the contrary, all agreed that the driveway was a “Category 2 driveway”, and that such a driveway without a median “would have been more suitable for the proposed industrial use as it would not have constrained the turning path of trucks”. The force of that opinion is fortified by the fact that after consent was granted, the developer took steps (ultimately unsuccessful) to modify the consent so as to delete the median strip. Two further considerations strengthen this point. The first is that it is obvious that to the extent that the entrance is narrower, a long bodied vehicle such as a semi-trailer will have to approach the entrance more directly, and may not be able to do so from the gutter lane proceeding southwards. The second is that subsequent to the collision in 2002, the median strip has been removed.

123. In giving oral evidence, the primary judge asked for clarification about the proposition that the sign was the “minimum” required. Mr Hallam confirmed that the existence of a left only sign “did meet the minimum required” and then added:

“In my statement of evidence, I said, partly with hindsight, I suppose, it would have been better to also add a bit of an extension on the centre median, a bit of an angle extension to direct vehicles leaving the site to make a left turn. Again, with hindsight, that would have been better, and that could have been done when development consent was granted, but it was not. But it was my opinion that the sign itself was the minimum needed” (emphasis added).

124. In answer to further questions from the primary judge, Mr Johnston agreed “with everything [Mr Hallam] said” and Mr Hollyoak also agreed and added that “in hindsight” a different scenario might have been applied, “such as traffic signals, such as left turns, such as turn bans, but the DA did provide the minimum required”.

125. The experts’ acknowledgment that their opinions involved the use of hindsight detracts from their utility in determining whether breach of duty was established.

126. Although the experts did not depart from what had been said as to the use of hindsight, it is true that the experts then agreed in cross-examination that the conditions of consent did not require the placement of the left only sign. They also agreed that their answer that the approved access arrangement was “the minimum required” was “intended to convey no more than that the Council’s consent to the development application satisfied the various technical standards … and satisfied the dimensional requirements of driveway access at the southern exit”. Doing the best I can from reading the transcript, it would appear that either counsel for Mrs Walsh quite effectively persuaded the experts to qualify the seemingly unequivocal evidence in the joint statement, or else there was a misunderstanding. Since there was no attempt further to clarify the position, I proceed on the basis, favourably to Mrs Walsh, that the concessions were made.

127. The result is that there is some dispute about what may confidently be taken from the expert evidence. However, it is clear that for the reasons above, the evidence falls short of establishing that no local council could properly have approved the development application without imposing conditions such as those stated by the primary judge. This was not a case where, as in Curtis, there was evidence that there was no explanation for the failure to install appropriate signage from a witness who could not be suggested to be other than entirely reliable and credible (the former Director of Technical Services): see at [287], [289] and [309]. The formulation by the primary judge appears to have diluted the test, his Honour did not address all of the evidence bearing on the issue, his finding disregarded the admitted use of hindsight by the experts, and insofar as it extended to requiring an island forcing exiting traffic to turn left, it went beyond what was agreed by the experts.

128. It follows that the finding by the primary judge of breach of the standard imposed by s 43A must, in my respectful opinion, be set aside. I conclude that it has not been shown that no local council acting reasonably could properly consider the consent granted without a mandated left turn from the southern access point to be a reasonable exercise of the power. Even if the Council owed a duty of care to the plaintiff, there was no breach of that duty, in light of the s 43A standard of care.

Liability of RMS

129. In contrast with the Council, RMS at all times accepted that as a traffic authority it owed a duty of care to road users. Mrs Walsh alleged at trial that the precaution which should have been taken by RMS was the installation of additional signage, such as was in fact installed in December 2002: an additional left turn only sign placed on the median strip.

130. Unlike the Council, RMS expressly abandoned a defence based on s 44 of the CL Act at trial. Senior counsel for RMS candidly acknowledged that that had been a deliberate forensic decision. He submitted that the question being a pure question of law, RMS ought to be permitted to raise the section on appeal. I do not agree. I cannot be confident that the cross-examination of its witness Mr Alan Bastable was unaffected by the abandonment of this defence. It follows that RMS should not be permitted to take a different course on appeal: Water Board v Moustakas (1988) 180 CLR 491 at 497.

131. Accordingly, I turn to breach. The primary judge rejected Mrs Walsh’s submission that a breach of duty was made out after construction was complete. His Honour found that RMS had no actual or constructive knowledge that the theoretical risk was not insignificant (at [211]), and further found that the elevated standard of care imposed by s 43A(3) was not satisfied: at [212]. In reaching those conclusions, the primary judge had regard to the limited resources available to the RTA, the fact that there was evidence that there were operational sections within the RTA whose business it was to prioritise the very large number of road works which might call for attention, and the crash data for the intersection between 1 July 1998 and 30 June 2002, which suggested that of the 18 collisions over that period at the intersection, only one involved a vehicle exiting the driveway, and that was not one which caused any injury.

132. The primary judge considered that the position was different in 2002, following receipt of a request from a member of the public and an investigation by the RTA. RMS challenged the factual findings of the primary judge in this respect, and so it is necessary to deal with the evidence in some detail.

The 2002 traffic count

133. Mrs Gail Mills’ workplace was near the intersection and, it may be presumed, she was familiar with what she perceived to be the dangers associated with it. On 25 September 2001, she wrote to the State Network Service Manager of the RTA requesting that “the left lane, coming out of Tangerine Street onto Woodville Road, be made a ‘left turn lane only’.” The reason given was that an increased traffic flow due to the opening of “BBC Hardware House, McDonalds and adjoining shopping centre” had caused many vehicles to turn right from the left-hand lane. She also stated that a large number of vehicles did U-turns on Woodville Rd to go back towards Villawood overpass, or did right turns into the factory complex. She wrote:

“I know that it is the law that you cannot do a u-turn or turn right at an intersection like this, but many, many drivers simply disobey this rule on a daily basis. Installing a ‘no u-turn’ sign could help rectify this situation.”

Mrs Mills sent a follow up letter on 16 April 2002 when she had not received a reply.

134. Mr Lysaught sent a reply on 4 July 2002. He said that after detailed investigations, changes were proposed to enhance safety, including “marking the kerb side lane in Tangerine Street as a left turn lane only and installing ‘No Right Turn’ signs for northbound vehicles in Woodville Road to prevent vehicles making right turn movements into the development opposite Tangerine Street”. He also advised that the RTA would not be installing any “No U-Turn” signs at the traffic lights, because that might lead to confusion at signalised intersections which lacked those signs. He advised that Mr Chris Ladas could be contacted if Mrs Mills wished to discuss the matter further.

135. The “detailed investigations” to which Mr Lysaught referred included an analysis of collision data at the intersection for the previous three and a half years, which is referred to above and on which the primary judge relied to find no breach by the RMS up to that time. The analysis also included investigations of the traffic movements at the intersection on Wednesday 2 April 2002. That analysis was addressed, comprehensively, to all traffic movements at the intersection, including those travelling into and out of the access drive. For the period between 3pm and 7pm, there were 14,858 traffic movements altogether, including 79 exiting the southern driveway. Of those, 58 turned left (in accordance with the sign), 16 turned right and five proceeded straight ahead across six lanes of traffic into Tangerine St (which had been Mrs Walsh’s intention).

136. Two other studies of traffic were undertaken at the same time. Mrs Walsh pointed to the fact that of the four vehicles exiting the driveway between 7.30 and 8.30 in the morning, three turned right and only one turned left. While on the same day between 5pm and 6pm, 19 turned left, six turned right and one proceeded straight ahead into Tangerine St.

The reasoning of the primary judge

137. The primary judge found, correctly, that the traffic counts demonstrated that slightly more than one quarter of all vehicles exiting the driveway either turned right into Woodville Rd or proceeded straight ahead into Tangerine St, contrary to the existing left turn only sign. His Honour also, entirely correctly, summarised the testimonial evidence of Mr Lysaught, called by RMS, who said he was not so much concerned by the absolute numbers but by the fact that they represented an extremely small proportion of vehicles using the intersection. However, Mr Lysaught was cross-examined and conceded that the vehicles which did not turn left presented the potential for collisions.

138. The primary judge relied upon the collision data to conclude that after April 2002, the risk had become “not insignificant” and to the knowledge of RMS. His Honour concluded that because of the high proportion of drivers disregarding the sign, “it was not through sheer disobedience” that this was occurring, but instead that the single sign on the left was ineffective. Critically, in [227], the primary judge found:

“Bearing in mind the lower standard, it is clear that RMS had made a decision to act to avert the risk by exercising its special statutory powers. Notwithstanding the s 42 considerations, it is clear that the decision must have been made around July 2002 when this matter was ‘on Mr Lysaught’s desk’.”

The “lower standard” was a reference to the altered standard brought about by s 43A of the CL Act.

139. The primary judge then concluded that with a decision probably having been made in July 2002, no traffic authority “could properly consider the omission to implement its decision over a period of 7 months” to be a reasonable exercise of the power. His Honour said that given the potential for further crashes involving serious injury, no roads authority could regard waiting months rather than weeks to implement its decision to be a reasonable exercise of its powers. Hence his Honour found that RMS was negligent in not erecting an additional sign within a few weeks of making its decision in July 2002.

RMS’s challenge to the finding that a decision had been made in July

140. RMS challenged the finding of fact that a decision “must have been made” (the language of [227]) or “was probably made” (the language of [228]) in July 2002. It was common ground that there was no direct testimonial evidence on point. Mr Lysaught fairly acknowledged that, giving evidence 12 years later, he had no recollection.

141. A work order, prepared and signed by Mr Ladas, and dated 4 December 2002, required the installation of the signage which had been advised to Mrs Mills, and, additionally, a further “all traffic turn left sign” on the median strip at the exit of the driveway onto Woodville Rd. The authority stated that a “seven day response” was required. In fact, the works were completed on 16 December 2002.

142. It is true that the contemporaneous documents compel the conclusion that a decision had been made in July 2002 to make some changes to traffic control at the intersection of Woodville Rd and Tangerine St. There is no reason not to take the language used by Mr Lysaught in his letter to Mrs Mills other than at face value. But it does not follow that a decision had been taken in July 2002 to make any changes to the signs on the factory exit to Woodville Rd. To the contrary, I would infer that no such decision had been made, for these reasons.

143. First, Mrs Mills’ complaints were not directed to traffic exiting from the industrial complex at all.

144. Secondly, Mr Lysaught’s response did not mention that matter.

145. Thirdly, there was testimonial evidence squarely directed to this point, to which the primary judge did not at this stage of his reasons refer. Mr Bastable, a witness called by RMS, said that “my understanding is that [the installation of the additional sign] was a response to a crash investigation. And we take road safety very seriously and we do not really wait for a due process if we think there is an urgent requirement when we are doing a post-crash investigation”. When it was put to him that there had been an RTA commissioned traffic count at the site months earlier, the witness answered:

“You are drawing a line between the count and that treatment, and that is a stretch, that is an opinion.”

146. Contrary to the inference drawn by the primary judge, it seems probable that the decision to erect additional signage at the exit onto Woodville Rd, reflected in the work order dated 4 December 2002, was prompted by the serious accident the previous month involving the plaintiff.

147. I would accept RMS’s submission that there was no evidence before the primary judge supportive of the conclusion that the decision to install an additional keep left sign on the driveway exiting onto Woodville Rd was made in July 2002. The contemporaneous documents do not suggest any attention was given to the very small number of vehicles exiting on the driveway. All of the documents dealing with signage on the driveway post-date the accident. That accorded with the evidence of the only witness with any recollection of the circumstances in which the additional sign had been installed.

148. There is another matter supportive of the above, although on balance I think it is only weakly supportive. In his letter to Mrs Mills of 4 July 2002, Mr Lysaught gave a reference of 156.5372. A different (although similar) reference appears on the 4 December 2002 work order: 156.1654. The inference made by the primary judge and sought to be maintained by Mrs Walsh that all aspects of the changed signage at the intersection had been made in July 2002 seems inconsistent with the certainty that by December 2002, a separate reference had come into existence to deal with the response by the RTA to this intersection. The changed reference number is by no means an especially powerful consideration, especially since there appear to have been no other documents from the RTA tendered that bear upon this point. However, it seems plausible that the heightened attention on traffic exiting the driveway following the collision resulted in a new reference number being given to all aspects of work which, after November 2002, was regarded for the first time as relatively urgent.

149. It follows that the factual foundation for the conclusion of the primary judge that RMS breached its duty of care falls away.

Mrs Walsh’s notice of contention

150. Against the possibility that this finding by the primary judge might be overturned, Mrs Walsh relied upon a notice of contention, alleging that the primary judge should have found breach by RMS either in around March 1997 during the assessment of the original application for development consent, or alternatively around July 1999 at the time the developer was proposing to signalise the exit.

151. The first way in which Mrs Walsh puts her contention is that action was required “within a reasonable time after participating in a Council Development Committee” in March 1997. It is easy to see why that submission must be rejected. In April 1997, there was merely consent to a development application which would lapse if there had not been substantial commencement within five years. This was a site where there had been a steady series of applications to Council in the preceding two years. On 19 April 1995, Council consented to a change of use involving 76 car spaces for “manufacture, assembly, warehousing, wholesale trade and bulky retail sales, distribution and administration of vanity units, spa baths, spa pools, bathroomware, ceramic tiles, laundry tubs, kitchen sinks, and associated home improvement products”. On 12 December 1995, Council approved a further application, also requiring an additional 78 parking spaces, for a change of use to bulky goods retailing. The evidence did not disclose whether steps were taken in accordance with what had been approved, although the February 1995 application had stated that there would be “far less traffic movement than previous use, despite retail nature of use”. After April 1997, substantial building works were required, and it may be inferred that they did not take place until after September 1998 when the building permit issued. In the meantime, I fail to see how the standard mandated by s 43A was breached by the RTA not altering the signage of the exit into the intersection. On the evidence available, nothing had changed. The important matter from the position of the RTA was not the granting of consent to development, but steps taken to act upon that consent.

152. What is more, from October 1998, the traffic consultant for the developer was in active negotiations with the RTA concerning signalisation of the intersection. As noted earlier in these reasons, it may be inferred that those negotiations preceded construction work on the site. Those negotiations culminated in the drafting of detailed plans, which were acceptable to the RTA, but at all times the RTA made it clear that the proposed signalisation of the intersection would be at the developer’s cost. The primary judge inferred (and there is no challenge to this) that eventually the developer was unwilling to pay the considerable costs and walked away from the proposal.

153. To turn to the second way in which by her notice of contention Mrs Walsh seeks a finding of liability, I would not conclude (and I do not understand Mrs Walsh ultimately to submit) that the standard imposed by s 43A was breached by the RTA not taking steps while those discussions were taking place. Mrs Walsh’s case at its highest is that the RTA should have, when it became clear that the proposed complete signalisation had come to naught, taken steps to place additional signage on the exit to the southern driveway.

154. For completeness, I do not understand Mrs Walsh to contend that the RTA should have itself spent in excess of $100,000 completing the signalisation of the intersection; if that is a submission made, I would reject it having regard not least to the limited budget of the RTA and the fact that the evidence discloses a process of identifying “black spots” within the road network, of which this intersection was not one.

155. I cannot conclude that it was Wednesbury unreasonable for the RTA not to put an additional sign on the exit driveway after July 1999. The traffic experts all agreed that a single sign was sufficient. There was no evidence to suggest that a substantial number of drivers disobeyed the sign (whether intentionally or unintentionally). Given the relatively small number of vehicles entering the intersection from that exit, it is not surprising that Mrs Mills’ complaint made no mention of them. And, as noted above, Senior Constable Bovill’s concerns were not addressed to requiring exiting traffic to turn left either.

Liability of RMS – causation

156. Although it will make no difference to the outcome of RMS’s appeal, I should address its submission that it had not been established that any breach of duty by it in failing to install additional signage was causative of the collision. The submission can be resolved as concisely as it was made.

157. Mrs Walsh gave this evidence in cross-examination:

“Q. Now, as you drove out of the car park and before you got to the fence line, there was a concrete median; do you remember that?

A. No, I don’t remember that.

Q. And on that median, there was a pole with a sign saying ‘keep left’?

A. No. Absolutely no sign. No.

Q. You certainly didn’t see one?

A. No.”

158. RMS’s submission on causation was that in circumstances where Mrs Walsh said she saw neither the median strip nor the “keep left” sign to her right, then it was not established that, had a second “left turn only” sign been installed on the median strip, she would have seen it, and so the additional sign would have made no difference.

159. I do not accept the submission. First, although I am not suggesting that the question was other than fair, the “left turn only” sign which Mrs Walsh failed to see and disobeyed was much more important so far as Mrs Walsh was concerned than the “keep left” sign which she obeyed. Mrs Walsh had immediately prior to the questions reproduced above been cross-examined about her not having seen the “left turn only” sign. I think that it is quite likely that Mrs Walsh thought she was being asked about the “left turn only” sign. Mrs Walsh undoubtedly had an actual recollection 12 years later of being astonished when the left turn only sign was pointed out to her. If however Mrs Walsh was intending to refer to the “keep left” sign, it is difficult to reconcile the certainty of her recollection that she failed to see a sign with the uncertainty of her recollection as to the existence of a median strip.

160. Secondly and in any event, it does not follow from the fact that Mrs Walsh did not remember seeing the median strip or the “keep left” sign, that a “left turn only” sign on the median strip would have no causative effect. Her evidence was that she was unfamiliar with the area, and that when she reached the tarred surface of Woodville Rd she was uncertain of what her options were. There was no suggestion that she would not have obeyed any road signs if she saw them. And it is quite plain that a second “left turn only” sign would have increased the probability that she would have seen it and, accordingly, turned left rather than driving across in the direction of Tangerine Rd.

161. I would reject this aspect of RMS’s appeal.

Orders

162. For those reasons, I have concluded that both the Council’s and RMS’s appeals should be allowed, and that the judgment in favour of Mr Zraika must also be set aside. The orders necessary to do this are a little complex, because they involve re-answering the separate questions answered by the primary judge, in light of the subsequent agreement between all parties.

163. Had these been two interlocutory appeals, without more, it would also be appropriate to make further orders. For example, the plaintiff’s claim and Mr and Mrs Walsh’s cross-claim against each of the Council and RMS should be dismissed, as should the Council’s and RMS’s cross-claims (which were defensive). However, it is not presently clear to me that any such orders should or need to be made, in light of the agreement between the parties following the decision of the primary judge. The point that most concerns me is that the plaintiff has taken no active role in these appeals, on the strength of the regime put in place after the judgment, and it is not clear to me whether it was envisaged that substantive orders directly affecting him (such as dismissing his proceedings against the Council and RMS) would be made, even if they have no ultimately pecuniary impact upon him. (The Court has been told that it was agreed that the plaintiff “will not be disadvantaged by any orders made by the Court of Appeal or subsequently in the finalisation of the proceedings”.) I propose that the parties be heard as to the additional orders which should be made.

164. There are three further topics in respect of which orders will need to be made. First, there is a question as between Mr Zraika on the one hand and Mr and Mrs Walsh on the other hand as to the proportion of the successful appellants’ costs each should bear. I have concluded that Mr Zraika should bear greater liability than Mrs Walsh, but it may be said that it was Mr and Mrs Walsh who principally advanced submissions which ultimately have been shown not to be successful. It may of course be possible for the unsuccessful respondents to the appeal to resolve that question as between themselves.

165. Secondly, payments having been made to the injured plaintiff, there will be a need for Mr Zraika and/or Mr and Mrs Walsh to make payments to RMS and the Council, and for Mr Zraika to make a payment to Mr and Mrs Walsh. It should be possible for the parties to agree to a mechanism by which that can take place. In principle, those parties which have already paid more than they are obliged to pay would seem to be entitled to interest: see Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; 53 NSWLR 600.

166. Thirdly, there are the costs of the trial, as to which the parties have not been heard. Because Mr Zraika was only belatedly joined by the plaintiff, there may be (I am not expressing a view one way or the other) considerations of which this Court is not fully aware warranting a departure from the ordinary orders as to costs. In any event, it was not practicable in submissions in advance of the hearing to anticipate all aspects of the question of costs at first instance.

167. For those reasons, I propose that the parties be directed to supply within 21 days agreed short minutes of order, or in default of agreement short submissions not exceeding 10 pages accompanying any further orders for which they contend. My expectation is that any controversy as to further orders would be determined on the papers, although this too is a matter as to which I would invite the parties’ submissions to extend.

168. I propose the following orders:

In the Council’s appeal:

1. Grant leave to appeal.

2. Direct the Council to file a notice of appeal in accordance with the draft contained in the appeal books, within 7 days of today, and otherwise dispense with the requirements as to service.

3. Allow the appeal, set aside the answers to questions 2, 4, 6, 7, 8 and 9 in order 1 made on 30 April 2015, and in lieu thereof answer those questions in accordance with Annexure “A” below.

4. Set aside order 2 made on 30 April 2015, and in lieu thereof order:

2. Judgment for the plaintiff against the fifth defendant Mr Zraika.

5. Order that the second, third and fifth respondents to the appeal (Mr and Mrs Walsh and Mr Zraika) pay the costs of the Council of the appeal.

6. Direct the parties to supply within 21 days agreed short minutes of order, or in default of agreement short submissions not exceeding 10 pages accompanying the orders for which they contend.

169. In RMS’s appeal:

1. Grant leave to appeal.

2. Direct RMS to file a notice of appeal in accordance with the draft contained in the appeal books, within 7 days of today, and otherwise dispense with the requirements as to service.

3. Allow the appeal, set aside the answers to questions 1, 3, 5, 7, 8 and 9 in order 1 made on 30 April 2015, and in lieu thereof answer those questions in accordance with Annexure “A” below.

4. Set aside order 2 made on 30 April 2015, and in lieu thereof order:

2. Judgment for the plaintiff against the fifth defendant Mr Zraika.

5. Order that the second, third and fifth respondents to the appeal (Mr and Mrs Walsh and Mr Zraika) pay the costs of RMS of the appeal.

6. Direct the parties to supply within 21 days agreed short minutes of order, or in default of agreement short submissions not exceeding 10 pages accompanying the orders for which they contend.

170. SIMPSON JA: I agree with Leeming JA. I also agree with the additional observations of Gleeson JA.

Annexure “A”

Question 1: Did the third defendant (RMS) owe the plaintiff a duty of care?

Answer: Yes.

Question 2: Did the fourth defendant (Council) owe the plaintiff a duty of care?

Answer: Not necessary to answer.

Question 3: If RMS owed the plaintiff a duty of care was it breached?

Answer: No.

Question 4: If the Council owed the plaintiff a duty of care was it breached?

Answer: Assuming the Council owed a duty of care, no.

Question 5: Was RMS’s breach a legal cause of the collision between the vehicles driven by Mrs Walsh and Mr Zraika on 16th November 2002?

Answer: This question does not arise.

Question 6: Was the Council’s breach a legal cause of the collision between the vehicles driven by Mrs Walsh and Mr Zraika on 16th November 2002?

Answer: This question does not arise.

Question 7: Did the fifth defendant (Mr Zraika) breach the duty of care he owed to the plaintiff on 16th November 2002?

Answer: Yes.

Question 8: Was Mr Zraika’s breach (if any) a legal cause of the collision between his vehicle and the vehicle driven by Mrs Walsh on 16th November 2002?

Answer: Yes.

Question 9: If more than one defendant is negligent, in what proportions should legal responsibility be shared?

Answer: The first and second defendants (Mr and Mrs Walsh) together as to 40%; the fifth defendant (Mr Zraika) as to 60%.

**********

Amendments

23 October 2017 - [60] single quote within indented quote corrected so that "'development application'" is replaced by "'the development application'"

[62] - "median" replaced by "median strip"

[105] "effect of the development" replaced by "social and economic effect of that development"

[105] "exit from the development" in quoted text replaced by "exit from that development"

[118] "the" inserted before "Senior Constable's"

22 March 2016 - Date of decision corrected.

Decision last updated: 23 October 2017