Campbelltown City Council v Bussell

[2003] HCATrans 541

[2003] HCATrans 541

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S28 of 2003

B e t w e e n -

CAMPBELLTOWN CITY COUNCIL

Applicant

and

GLEN ARTHUR BUSSELL

First Respondent

SAMUELA TAUMALOLO

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2003, AT 11.15 AM

Copyright in the High Court of Australia

MR J.G. POULOS, QC:   May it please the Court, I appear with my learned friend, MISS V.M. HEATH, for the applicant.  (instructed by Phillips Fox)

MR J.W. DODD:   If your Honours please, I appear for the first respondent.  (instructed by Markham Geikie Farrugia)

MR R.R. BARTLETT, SC:   If the Court pleases, I appear with MR R.H. WEINSTEIN for the second respondent.  (instructed by Dibbs Barker Gosling)

GUMMOW J:   Yes, Mr Poulos.

MR POULOS:   Your Honours, this matter is one of those cases in a series that follows Brodie’s Case and Ghantous’ Case where the question of the extent of the duty of a council in the position of a road authority arises.      Our leave point is this, that it has now become clear through decisions of Ghantous and a series of cases in the Court of Appeal that a council only owes a duty to take reasonable care in “footpath cases”, if I may put it that way, where the pedestrian using the footpath is taking reasonable care for his own safety.  In this case the trial judge and the Court of Appeal, while both reciting the tests in Brodie’s Case ‑ ‑ ‑

GUMMOW J:   What do you say about Mr Bartlett’s points in paragraphs 3, 4 and 5 on pages 87 and 88?

MR POULOS:   Just pardon me while I go to that, your Honour.  There is no doubt that the facility was constructed for all classes of persons and including children.  The issue that arose in this case, and we submit arises on this appeal, is what is the rule that children and this particular plaintiff followed when using these facilities?

GUMMOW J:   All the lawyers love having little categories and subcategories, but the question is what is reasonable in these circumstances, and these are the circumstances and they are rather striking circumstances.

MR POULOS:   Well, they are and the question is whether or not the Court is going to make an exception where it is reasonable to foresee that any child will be using a crossing.

GUMMOW J:   No, not any child.  This was next to a police youth club, was it not?

MR POULOS:   Yes, that is so, yes.  If that be the case then a council must, in all of those circumstances, look to where children might reasonably be expected to use a facility and that must be all crossings where children live in the vicinity.  There is no special distinction between this crossing and places in any street where there are children living.  This accident occurred at 9 o’clock at night.

GUMMOW J:   Exactly.

MR POULOS:   And the child knew that it was his duty, and the witness knew as well, that what you had to do if you were a pedestrian – and we treated this plaintiff, even though he was a riding a cycle, as a pedestrian – was you got to the end of the extremity of the kerb extension and then checked before you stepped onto the roadway.  He knew that was his duty.  Her Honour, the trial judge, characterised his failure as something more than might be described as ordinary contributory negligence.  She described it at paragraph 91 at line 15 of the application book as “imprudent and irrational conduct”.

GUMMOW J:   So?

MR POULOS:   So the Council duty to design a facility must be looked at, in our submission, in respect of conduct that is imprudent and irrational.  The point upon which the person is expected to stop so he can see is to be compared with an ordinary footpath, because that is what this facility was meant to do, to take ‑ ‑ ‑

GUMMOW J:   What do you say about paragraph 45 of Justice McClellan’s judgment on page 66?

MR POULOS:   That is a paragraph which is not in accordance with the trial judge’s finding, and that is to be compared with paragraph 23 of the trial judge’s finding.  This is one of the complaints that this applicant has, that the evidence does not disclose that to be the case.  In fact her Honour found, at paragraph 23 – sorry, paragraph 36, I beg your Honour’s pardon:

There is no doubt that, on reaching the extremity of the kerb extension, a prudent person utilising the facility in the manner of a pedestrian would have stopped and looked in both directions.  Any loss of pedestrian sight line occasioned by the Club buses would have been irrelevant had the plaintiff stopped at the extremity of the extension and looked both ways . . . Had he looked to his right from the extremity of the kerb extension directly towards Kent Street, he would have seen any vehicle that was proceeding from Kent Street into Minto Road if its headlights were fully illuminated –

and they were –

Nothing would have impeded his line of sight into Kent Street.

GUMMOW J:   This is all dealing with the facts of the accident.

MR POULOS:   Yes, that is so.

GUMMOW J:   What is the construction of the facility?

MR POULOS:   Your Honour asked me about paragraph 48 of his Honour’s judgment.  That is not the trial judge’s finding.  The importance of the kerb extension was that it was brought into existence when there was already angle parking on the roadway outside the club some years before.  If the kerb extension had not been put into position then you would have had the situation of children coming out between angle‑parked vehicles to cross Minto Road, which is a very wide street.  So by placing the kerb extension, the Council in fact made the area safer for children and did in fact take into account that the Police Citizens Youth Club was there.

The fact that angle parking is present is not an unusual finding.  In every country town in New South Wales and many outer suburb areas – indeed, many inner suburban areas have them.  Your Honours have dealt with the recent case of Pledge v Ryan where these matters were considered and argued before the Court.  The fact was that if the kerb extension was not put there then the area would have been more dangerous, and the idea of planning and inserting a kerb extension was to extend the old kerb alignment to a point where if a person advanced to the new kerb alignment they could see for all relevant purposes what was going to happen, and that applied to children as well.

It is important to note that in the occurrence of events the Council had absolutely no knowledge that these buses were illegally parked, and they were illegally parked.  They were not disabled parking vehicles, and there was no evidence before the court to indicate that the Council was aware that the buses were there on this particular night.  It raises an analogous situation of the High Court’s decision in the Modbury Triangle Case where we are dealing with the illegal act of a third party.

HEYDON J:   It is totally different, is it not?

MR POULOS:   Well, it is analogous.  I am not saying it is the same, but the Council has no control other than by signage over this space.  The signage was, “Disabled Parking Vehicles Only”.  The Council is not the policing authority.  The police, who conduct the Police Citizens Youth Club and who own the buses, are the authority responsible for enforcing parking restrictions in the area, which of course is irrelevant for the purposes of causation.

These facilities are designed by reference to standards which have been in existence for years and have been refined and published and used by all councils in Australia and New Zealand for the provision for parking areas in conjunction with pedestrian facilities.  The issue in this case that became clouded was whether or not two spaces should be allowed to be left on the upstream side.  There was no guideline before the courts below which indicated that that should be the case.  There were guidelines which said if you kept the old kerb alignment you should keep parking spaces free for a distance of 12 metres, but this facility meant that if you advanced the kerb extension out into the roadway there would be no parked vehicles on the line of sight from the edge of the kerb.  That is a principle that has been put into place to replace pedestrian crossings which have been perceived to be less safe facilities than these.

The learning that goes into the standards was exposed in this case.  This is a set of guidelines which are being followed on a daily basis for the design and construction of many, many facilities – perhaps thousands of them.  It was said in a case, which I have not put on the list because it was only discovered virtually last night, in a case which at first sight does not seem to deal with it, it is called Dovuro Pty Ltd v Wilkins, a decision of this Court of 11 September 2003 where we would adopt the words of Justice McHugh, if a defendant:

has complied with common practice, the tribunal of fact had better first make certain that it has not used hindsight to find negligence.  Compliance with common practice is powerful, but not decisive evidence that the defendant did not act negligently.

I cannot put it any more clearly than that.  That is what this Council has done.  The facility did precisely that which it was designed to do, to bring persons to a point on the roadway where it was safe for users taking ordinary care for their own safety.  If the child had obeyed his own precept, which was, “I knew I had to go to the end of the extremity, I knew I had to look to my right” this accident would not have occurred, and that is the trial judge’s finding.

We say that the courts below never addressed this aspect of the test in Brodie, and that instead the decisions became sidetracked, as it were, by the earlier case of Webb and there seems to be an inconsistency with the way the High Court dealt with the facts in Webb as it did within Ghantous.  There seems to be – there was a division of opinion in Webb.  However, if one adopts an analysis whereby in Webb they say that the plaintiff was distracted by reason of running for the bus or some other emergency and did not see this hole which has formed between a kerb and a new false kerb, then one could look at Webb and say, “Well, that’s an exception.  That was a person who was taking reasonable care for his own safety”.  But here the finding of contributory negligence on the part of a child does raise this question of, “If he had’ve been taking care for his own safety would this facility have protected him from the accident?” and the answer is plainly yes.  Her Honour found that, and the Court of Appeal, with respect to it, did not deal with that very important factual finding.

To say that there must be an exception, then in the case of imprudent and irrational conduct, having regard to the standard of a child’s behaviour – not an adult’s but a child’s behaviour – what would a reasonable child between the ages of 11 and 12 do?  No child would be allowed out onto the street, we would say with respect, unless he knew the basic rules of stop, look and listen on the road.  He did not stop, he did not look, he heard the sound of a vehicle approaching from his right and he still proceeded out onto the roadway and was struck by that vehicle.  His friend who was about to follow behind him heard the sound of the vehicle and he stopped.  The presence of the bus in the bay next to it was an irrelevancy.  He knew it was there.  He had been there for 10 or 20 minutes.  The blocking of the sight line, if it be so, was something that he knew about and responded to by going onto the footpath to the west to look down Minto Road.  He knew that he could not see onto the roadway.  He knew that the place from where he could see onto the roadway was at the end of the extremity.  He, for some irrational reason, did not do so.  He did not stop, and he did not look.

What does a council do in such a situation?  If they had been in breach of any existing duty we said to the Court of Appeal, “What is the causation?”  There was no evidence from the plaintiff.  No question was ever asked of him, “What would you have done if you had seen a vehicle coming from Kent Street?”  It was a simple enough question.  It is like the question that was asked in Chappel v Hart, it is like the question that was asked in the case whose name temporarily escapes me, the decision of the Court of Appeal dealt with who had to adduce evidence about what they would have done in the circumstances.  We say no causation because no evidence as to what would have been done.

Your Honours, in particular we wish to say that even if the buses had been in the spaces which her Honour found that they should have been, the same kind of problem would have existed.  Two spaces left.  I wonder if I would be so bold as to be able to hand up a very simple change of the plan that is at 69, which takes the buses 12 metres away from the facility.  A simple placing of a ruler from various places on the footpath, as the judge describes it, in the environs, without being very particular about it, would show that the same problem exists regardless of whether it is 12 metres away from the kerb or it is not.  The fact is that at some point in time on the

footpath and within this kerb extension, ie the new footpath if I may say so, you are always going to have an extinguishment of the sight line until you get to the place where the plaintiff knew that he had to stop and look.

We say that there is no evidence of causation adduced in the case, and on a reasonable view of it there could not be a finding that the accident would not have occurred because the boy’s irrational conduct was to ride to a point where he could have looked and he did not.  What is to say that he would have looked and seen anything else?  There is no evidence that the bus itself would have obeyed any different sign, and that is our last point in the matter.  The Court of Appeal says, “Oh well, a sign put up there saying ‘No Standing’ would’ve prevented the police vehicles from parking in that area.”  That evidence is mere speculation.

The vehicles were identified.  The vehicles were identified as being the property and driven by representatives of the club.  No evidence was called from any person from the club to suggest that if there had been a “No Standing” sign, as distinct from a disabled parking sign, that the buses would have been parked elsewhere.  So, once again, there was a failure or an absence of evidence to give foundation to an argument that there was a causal link.  Unfortunately, the Court of Appeal just did not deal ‑ ‑ ‑

GUMMOW J:   Unfortunately the red light is on, Mr Poulos.

MR POULOS:   I am sorry, your Honour?

GUMMOW J:   Unfortunately the red light has been on for several ‑ ‑ ‑

MR POULOS:   Yes, I understand, your Honours.

GUMMOW J:   We do not need to call on you, Mr Dodd and Mr Bartlett.

We are not satisfied that any point of principle arises in this case.  There are insufficient prospects of success in any appeal and accordingly special leave is refused and refused with costs.  We will take a short adjournment.

AT 11.36 AM THE MATTER WAS CONCLUDED