Brito v Fairfield City Council - [2000] NSWCA 215

Reported Decision: (2000) 110 LGERA 44
(2000) 32 MVR 218

New South Wales

Court of Appeal

CITATION: BRITO v FAIRFIELD CITY COUNCIL [2000] NSWCA 215

FILE NUMBER(S): CA 40098/99

HEARING DATE(S): 8 August 2000
9 August 2000

JUDGMENT DATE:
9 August 2000

PARTIES :

MARIO BRITO
CHANNON REFRIGERATION PTY LIMITED
FAIRFIELD CITY COUNCIL
ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT OF: Handley JA at 1; Powell JA at 28; Stein JA at 36

LOWER COURT JURISDICTION : Supreme Court - Common Law Division

LOWER COURT
FILE NUMBER(S) : 18586/93

LOWER COURT
JUDICIAL OFFICER : Maconachie AJ

COUNSEL: Appellants - P W Taylor SC/S C Dowling
Respondent 1 - D L Davies SC/S A Woods
Respondent 2 - M Cashion SC/T H Barrett

SOLICITORS: Appellants - Malcolm Johns & Company
Respondent 1 - Phillips Fox
Respondent 2 - I V Knight, Crown Solicitor

CATCHWORDS: NEGLIGENCE - TRAFFIC AUTHORITY - driver failed to comply with give-way sign at intersection - sign obstructed by bus - whether adequate signage - driver with benefit of give-way sign injured - whether Council as traffic authority in breach of duty of care to injured driver

CASES CITED:
Wyong Shire Council v Shirt (1980) 146 CLR 40

DECISION: Appeal dismissed with costs - orders made

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40098/99
CLD 18586/93

HANDLEY JA
POWELL JA
STEIN JA

9 August 2000

MARIO BRITO & ANOR v FAIRFIELD CITY COUNCIL & ANOR

NEGLIGENCE - TRAFFIC AUTHORITY - driver failed to comply with give-way sign at intersection - sign obstructed by bus - whether adequate signage - driver with benefit of give-way sign injured - whether Council as traffic authority in breach of duty of care to injured driver

The defendant drove his vehicle into an intersection and collided with the plaintiff after failing to see and comply with the give-way sign facing him. The plaintiff sued the defendant and his employer (the appellants) and they joined the Fairfield Council, the traffic authority responsible for the signage, as cross-defendant seeking contribution or indemnity. The proceedings between the plaintiff and the defendants were settled but the defendants continued with their claim against the Council.

The trial Judge dismissed the defendants’ case against the Council based on alleged deficiencies in the signage and other warnings facing the first defendant as he approached the intersection. The defendants appealed arguing that the Council should have foreseen that buses could obscure the give-way sign facing traffic approaching the intersection and additional precautions were required and therefore the Judge erred in finding that there had been no breach of duty.
HELD : Dismissing the appeal: (1) The accident occurred because the first defendant’s conduct in approaching the intersection was reckless in the circumstances. (a) Although a give-way sign facing the first defendant in the second lane could be temporarily obscured by a large vehicle in the kerb side lane, this possibility did not require additional precautions to be taken by the traffic authority. Drivers in the position…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWCA 215
Decision Date: 9 August 2000

CaseChat Overview and Summary

Brito appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales. The dispute concerned an action in negligence brought by Brito against Fairfield City Council. Brito, a driver, had failed to comply with a give-way sign at an intersection and subsequently sustained injuries. Brito alleged that the Council, as the responsible traffic authority, had breached its duty of care to him by failing to ensure adequate signage at the intersection, as the give-way sign had been obstructed by a bus at the time of the incident.

The Court of Appeal was required to determine whether the Council owed a duty of care to Brito, and if so, whether that duty had been breached. Specifically, the court had to consider whether the signage at the intersection was adequate, notwithstanding the obstruction by a bus, and whether the Council had taken reasonable steps to ensure the safety of road users in its management of the intersection.

The Court of Appeal upheld the decision of the primary judge, finding that the Council was not in breach of its duty of care. The court reasoned that the presence of a bus obstructing the give-way sign did not, in itself, render the signage inadequate or demonstrate a breach of duty by the Council. The court applied the principles of negligence, considering the standard of care expected of a traffic authority in maintaining road infrastructure and signage. The court concluded that the Council had met the required standard of care and that Brito's own failure to comply with the give-way sign, even with the obstruction, was the cause of his injuries.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs - orders made

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	BRITO v FAIRFIELD CITY COUNCIL [2000] NSWCA 215
FILE NUMBER(S):	CA 40098/99
HEARING DATE(S):	8 August 2000 9 August 2000
JUDGMENT DATE:	9 August 2000
PARTIES :	MARIO BRITO CHANNON REFRIGERATION PTY LIMITED FAIRFIELD CITY COUNCIL ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES
JUDGMENT OF:	Handley JA at 1; Powell JA at 28; Stein JA at 36

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	18586/93
LOWER COURT JUDICIAL OFFICER :	Maconachie AJ

COUNSEL:	Appellants - P W Taylor SC/S C Dowling Respondent 1 - D L Davies SC/S A Woods Respondent 2 - M Cashion SC/T H Barrett
SOLICITORS:	Appellants - Malcolm Johns & Company Respondent 1 - Phillips Fox Respondent 2 - I V Knight, Crown Solicitor
CATCHWORDS:	NEGLIGENCE - TRAFFIC AUTHORITY - driver failed to comply with give-way sign at intersection - sign obstructed by bus - whether adequate signage - driver with benefit of give-way sign injured - whether Council as traffic authority in breach of duty of care to injured driver
CASES CITED:	Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	Appeal dismissed with costs - orders made