Edson v Roads and Traffic Authority - [2006] NSWCA 68

No judgment structure available for this case.

Reported Decision: (2006) 65 NSWLR 453
(2006) Aust Torts Reports 81-839

Court of Appeal

CITATION: Edson v Roads & Traffic Authority [2006] NSWCA 68
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 01/09/05

JUDGMENT DATE:
7 April 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Hunt AJA at 170

DECISION: (1) Appeal upheld with costs (2) Orders made by Murray ADCJ granting judgment and orders for costs in favour of the RTA set aside (3) Cross-appeal is upheld with costs (4) Verdict and judgment for Ms Edson in the sum of $231,914 with costs.

CATCHWORDS: NEGLIGENCE - Appellant injured in car accident as she was attempting to cross a freeway - fence and wall blocking freeway was knocked down to allow access - crossing freeway in this way was common practice in the community - liability of road authority - application of common law duty of care to a statutory authority - duty of care - relationship between obviousness of a risk and the existence of a duty of care - Mawlodi v State Rail Authority of New South Wales [2001] NSWCA 415 distinguished - presence of allurement - causation - contributory negligence. - PRACTICE AND PROCEDURE - Costs - application for a Bullock order. D

LEGISLATION CITED: Roads Act 1993 (NSW), ss 7(1), 61(1), 70(b), 103, 145(1)
Transport Administration Act 1988 (NSW), ss 46(1), 52A(1) & 52A(2), 53

CASES CITED: Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156
Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports 81-749
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Brodie v Singleton Shire Council (2001) 206 CLR 512
Burwood Council v Byrnes [2002] NSWCA 343
Chotiputhsilpa v Waterhouse [2005] NSWCA 295
Clarke v Coleambally Ski Club [2004] NSWCA 376
Commissioner for Railways (NSW) v Cardy (1959-60) 104 CLR 274
Commissioner of Main Roads v Jones (2005) 215 ALR 418
Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Reports 81-815
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hackshaw v Shaw (1984) 155 CLR 614
Liverpool City Council v Millett (2004) 43 MVR 193
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Mawlodi v State Rail Authority of New South Wales [2001] NSWCA 415
McHale v Watson (1966) 115 CLR 199
Mulligan v Coffs Harbour City Council (2005) 211 ALR 764
Phillis v Daly (1988) 15 NSWLR 65
Pledge v Roads and Traffic Authority (2004) 205 ALR 56
Pyrenees Shire Council v Day (1998) 192 CLR 330
Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679
Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 454
RTA v Fletcher Leighton Contractors (2001) 33 MVR 215
RTA v McGregor (2005) 44 MVR 261
Squillacioti v RTA [2002] NSWCA 133
Sutherland Shire Council v Henshaw [2004] NSWCA 386
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842
Temora Shire Council v Stein (2004) 134 LGERA 407
Thompson v Woolworths (Queensland) Pty Ltd (2005) 79 ALJR 904
Vairy v Wyong Shire Council (2005) 221 ALR 711
Webb v South Australia (1982) 56 ALJR 912
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Nicole Edson (Appellant)
Roads & Traffic Authority (Respondent)

FILE NUMBER(S): CA 41008/04

COUNSEL: I Barker QC/J Van Aalst (Appellant)
P R Garling SC/G Craddock (Respondent)

SOLICITORS: Doherty Partners (Appellant)
McCabe Terrill (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 10256/00

LOWER COURT JUDICIAL OFFICER: Murray ADCJ

LOWER COURT DATE OF DECISION: 01/09/2005

CA 41008/04
DC 10256/00

BEAZLEY JA
IPP JA
HUNT AJA
Friday 7 April 2006

NICOLE EDSON v ROADS AND TRAFFIC AUTHORITY

FACTS

The appellant, Ms Nicole Edson, was injured when she ran on to the F5 freeway near Campbelltown. She was struck by two motor vehicles travelling at about 100 kph. At the time of the accident, she was 13 years old.

At the point where the accident occurred, the freeway ran from north to south. It carried two lanes of traffic in each direction and had a speed limit of 110 kph. Strips of reserved land bordered each side of the freeway and a further strip divided the lanes of traffic in the centre. The Roads and Traffic Authority (the “RTA”) was the owner of the freeway and the reserves.

The freeway divided two satellite suburbs of Campbelltown, Raby to the west and St Andrews to the east. At the time Ms Edson was injured, there were two road overpasses between the suburbs. However, the layout of the roads in these suburbs was such that the use of the overpasses required a very significant diversion to be taken by pedestrians. Further, there were substantial incentives present for residents who lived in St Andrews to visit Raby. These included the local high school, the tavern and popular shops, which were all situated in Raby.

It became obvious that many residents in St Andrews were not prepared to walk the relatively long distances required to get to the overpasses. They preferred to take on the traffic hazards of the freeway when walking to Raby. The practice of pedestrians walking from one side of the freeway to the other was an established one. In 1997, the Investigation and Specific Projects Manager of the RTA estimated that roughly 25,000 people per year crossed the freeway at the location where the accident occurred.

Pedestrian access to the freeway on the western side was blocked by a two-metre high, wire mesh cyclone fence. Access from the eastern side was blocked by a two-meter high, concrete sounds wall. However, at the time of the accident, the fence had either been pushed over or cut through and a section of the sound wall had been removed.

Some time before the accident, Ms Edson and a group of other young persons had passed from the eastern side through the gap in the wall and crossed the freeway. When Ms Edson was injured, she was attempting to cross the freeway from the western side. She was in a state of panic and fear caused by the presence of a police car. She had been with others who had been drinking and they all appeared to be apprehensive about the attitude of the police to them.

Ms Edson brought proceedings for damages in negligence against both the RTA and the Campbelltown City Council. The trial judge, Murray ADCJ dismissed the claim against the Council and the Council was not a party to the appeal. Murray ADCJ also dismissed Ms Edson’s claim against the RTA.

His Honour held that the RTA owed a duty of care to persons in the category into which Ms Edson fell. The judge held that the RTA had failed to take steps to build and maintain sufficient fencing to prevent pedestrians entering on to the freeway. Nevertheless, the judge found that the fact that Ms Edson was a trespasser, her careless behaviour, the obviousness of the risk, and the principles set out in Mawlodi v State Rail Authority of New South Wales [2001] NSWCA 415, disentitled Ms Edson to a verdict. Ms Edson appealed the dismissal of her claim against the RTA.

Despite dismissing Ms Edson’s claim, the judge assessed her damages. He arrived at a figure of $461,524, which included an amount of $200,000 in respect of future economic loss. The RTA cross-appealed against the assessment of future economic loss.

i. A statutory body may come under a common law duty of care both in relation to the exercise and the failure to exercise its powers and functions.

Sutherland Shire Council v Heyman

Pyrenees Shire Council v Day

Crimmins v Stevedoring Industry Finance Committee

Brodie v Singleton Shire Council

Graham Barclay Oysters Pty Ltd v Ryan

ii. Whether the legislature expressly or impliedly excludes the operation of the common law is a matter of statutory construction.

Crimmins v Stevedoring Industry Finance Committee

Sutherland Shire Council v Heyman

iii. There is nothing in the Transport Administration Act 1988 (NSW) or the Roads Act 1993 (NSW) that supports the inference that the legislation intended to exclude the common law from applying to the conduct of the RTA.

iv. In the case of a road authority, where there is a highly managed system for road management, and where the authority has sole control over the object concerned and its maintenance, the question whether that authority owes a general duty of care is almost rhetorical.

Chotiputhsilpa v Waterhouse

v. The concept that obviousness of a risk affects the existence of a duty of care rests on the extent to which a defendant is entitled to assume that a person will take reasonable care for his or her own safety. No universal rule can be applied in regard to this issue and each case has to be judged by reference to its own circumstances.

Brodie v Singleton Shire Council

Clarke v Coleambally Ski Club

Liverpool City Council v Millett

vi. In the present circumstances, the RTA knew for several years that vast numbers of people were crossing the freeway and ignoring the obvious risks involved. This was general practice and not confined to a few careless persons. Therefore, the RTA could not rely on residents in the vicinity of the path to look after themselves and to act with due care.

vii. The presence of the tavern and shops in Raby were an allurement to the children and young people in St Andrews. The law has long recognised that, particularly in the case of children, the presence of an allurement on the land is relevant to the finding of a duty of care.

Hackshaw v Shaw

Commissioner of Main Roads v Jones

viii. The RTA owed persons in the class in which Ms Edson fell a duty to exercise reasonable care for their safety.

ix. The law has accepted that an occupier of land owes a person entering the land the ordinary common law duty to take reasonable care. An occupier owes that general duty of care irrespective of whether that person enters as an invitee, licensee or trespasser.

Hackshaw v Shaw

Australian Safeway Stores Pty Ltd v Zaluzna

x. The fact that Ms Edson was heedless of the traffic when she ran on to the freeway goes to contributory negligence. It does not excuse the RTA from failing to discharge its duty of care.

xi. In this case, the obviousness of the risk was not of such significance and importance as to be effectively conclusive. Where the exigencies of life and human nature combine to cause large numbers of persons to take grave risks in utilising areas under the control of a statutory authority, the community expects that the authority itself will take reasonable steps to limit the harm likely to result. Considerations of humanity would require the RTA to act.

Hackshaw v Shaw

xii. The present case is distinguishable in material respects from Mawlodi v State Rail Authority of New South Wales [2001] NSWCA 415. While Mawlodi was a case of casual trespass, the present case involved 25,000 people a year crossing the freeway in very dangerous and sometimes fatal circumstances. Here, the RTA had recognised that the current measures in place to stop people crossing the freeway were inadequate and they themselves recommended that urgent steps be taken.

xiii. The RTA’s breach of its duty of care was causative of Ms Edson’s injuries. Had the RTA erected more appropriate fencing or undertaken regular maintenance and repair of the current fence and wall, the general practice of crossing the freeway would have ceased.

ix. By crossing the freeway in light of obvious danger, Ms Edson was careless of her own safety to a significant degree. In light of the circumstances, which include Ms Edson’s age, her state of panic and the obviousness of the risk, it would be appropriate to assess contributory negligence on the part of Ms Edson as being 40%.

x. The award made by Murray ADCJ in relation to future economic loss was excessive. An appropriate award as a buffer for future economic loss would be $125,000.

xi. There was no unreasonable behaviour by the RTA in not joining in the release of the Council. In these circumstances, the application for a Bullock order by Ms Edson should be dismissed.

ORDERS

(1) Appeal upheld with costs.

(2) Orders made by Murray ADCJ granting judgment and orders for costs in favour of the RTA set aside.

(3) Cross-appeal is upheld with costs.

(4) Verdict and judgment for Ms Edson in the sum of $231,914 with costs.

**********

CA 41008/04
DC 10256/00

BEAZLEY JA
IPP JA
HUNT AJA
Friday 7 April 2006

NICOLE EDSON v ROADS AND TRAFFIC AUTHORITY

Judgment

1 BEAZLEY JA: I agree with Ipp JA.

2 IPP JA:

The arguments at trial and the principal issues on appeal and cross-appeal

3 This appeal and cross-appeal concern a claim by the appellant, Ms Nicole Edson, against the respondent, the Roads and Traffic Authority (“RTA”), for damages for personal injury.

4 On the evening of 28 August 1998, Ms Edson (then aged 13 years) sustained severe injuries when she ran on to the F5 freeway near Campbelltown (south west of Sydney). She was struck by two motor vehicles travelling at about 100 kph.

5 At the point where the accident occurred, the freeway ran from north to south. It carried two defined lanes of traffic in each direction (thus, four lanes in all). A median strip about 25 metres wide was situated in the centre. Strips of reserved land bordered each side of the freeway. The reserve on the western side was 55 metres wide and the one on the eastern side 30 metres. The RTA was the owner of the freeway and the two freeway reserves.

6 Pedestrian access to the freeway on the western side was notionally barred by means of a two-metre high, wire mesh cyclone fence. The fence was situated about 25 metres from the commencement of the western bitumen edge of the freeway. A concrete sound wall, also about two metres high (and about four inches thick), notionally barred access to the freeway on the eastern side.

7 In fact, on the evening in question, the fence and wall did not restrict access to the freeway. The fence had either been pushed over or cut through and a section of the sound wall had been removed, leaving a gap through which persons could easily pass. Some time before the accident, Ms Edson and a group of other young persons had passed from the eastern side through the gap in the wall and crossed the freeway. When Ms Edson was injured, she was attempting to cross the freeway from the western side. She was in haste (for reasons that I will describe) to return to the eastern side. She entered the freeway from the west by running over the fence that was lying on the ground.

8 Ms Edson brought proceedings for damages in negligence against both the RTA and the Campbelltown City Council. Her action rested on three bases. Firstly, she contended that each defendant should have constructed a walkway across the freeway near the point where she was injured. She argued that, had this been done, she would not have attempted to run across it. Secondly, she contended that for some years – on a daily basis - very large numbers of residents on both sides of the freeway, to the knowledge of the RTA and the Council, had walked across the freeway in the area where she was knocked down. She argued that the RTA and the Council should have prevented this practice by constructing a stronger and more effective fence and wall on either side of the freeway. Thirdly, she argued that the RTA and the Council should have maintained the existing wall and fence more effectively. She submitted that had these measures been taken she would not have attempted to cross the freeway as she did.

9 Murray ADCJ dismissed Ms Edson’s claim against the Council and this Court is not now concerned with that claim. The Council is not a party to the appeal.

10 Murray ADCJ also dismissed Ms Edson’s claim against the RTA. Ms Edson appeals against that decision. She does not challenge the judge’s rejection of her claim that the RTA should have built a walkway across the freeway. She does, however, challenge his Honour’s rejection of her arguments that the RTA should have erected a stronger wall and fence and implemented more effective maintenance procedures.

11 Despite dismissing her claim, the judge very properly assessed Ms Edson’s damages. He arrived at a figure of $461,524 which included an amount of $200,000 in respect of future economic loss. The RTA cross-appeals against the assessment of future economic loss.

12 The principal issues raised by the arguments in the appeal and cross-appeal are the following:

(a) Whether the RTA owed Ms Edson a duty of care.

(b) Whether the RTA breached the duty of care for which Ms Edson contends.

(c) Whether such breach caused Ms Edson’s injuries.

(d) The assessment of Ms Edson’s claim for future economic loss.

(e) Whether a Bullock costs order should be made.

The incentives to cross the freeway and problems with access

13 Essential to the issues as to liability is an understanding of the incentives that existed for residents and visitors (of all ages) to walk from the suburb on the one side of the freeway to the suburb on the other side, and to return. I am speaking of the area in the vicinity of the accident.

14 The freeway forms part of the Hume Highway, the main road link between Sydney and Melbourne. It was constructed over many years, but the construction in the vicinity of the accident was completed in approximately 1980. At that time, the Campbelltown Municipal area was some distance away to the west of the freeway. When the freeway was built, the adjoining land use was rural and no pedestrian links were proposed.

15 In the 1970’s, Campbelltown began to develop as a satellite city. Its growth led to the construction of extensive dormitory suburbs. By the time of Ms Edson’s accident, two large satellite surburbs of Campbelltown straddled the freeway, Raby to the west and St Andrews to the east.

16 At the time Ms Edson was injured, there were two road overpasses between the suburbs, one to the north and the other to the south of the point where Ms Edson was injured. The layout of the roads in these suburbs, however, was such that the use of the traffic overpasses required a very substantial diversion to be taken by pedestrians. The distance of the diversion depended of course on where one lived, but generally speaking it involved several kilometres.

17 There was a high school in Raby, but not in St Andrews. The Raby high school had about 500 students. The children of high school age who lived in St Andrews were obliged to attend the high school in Raby.

18 Public transport was irregular or non-existent. The position of many school children was made worse by the fact that passes on a local bus service were not available to those children who lived within two kilometres of the school (as the crow flies).

19 There was a tavern in Raby but not in St Andrews. The shops in Raby were more popular than the St Andrews’ shops. Generally, Raby appears to have been a more favoured social attraction point than St Andrews, particularly with young people.

20 It became obvious that many residents in St Andrews, at least, were not prepared to walk the relatively long distances required to get to the overpasses. They preferred to take on the traffic hazards of the freeway when walking to Raby.

21 The sound wall on the eastern side of the freeway was constructed of light concrete panels. Its main purpose was to operate as a noise barrier. It was not effective as a pedestrian barrier. The panels were too light. They were easily removed by lifting them. They were removed on a regular basis or simply smashed to open up the wall on the St Andrews side. To facilitate passage from the St Andrews’ side, persons had cut earthen steps into the considerable slope of the land from the noise barrier to the freeway.

22 On the Raby side of the freeway, the fence was cut or simply flattened. This did not involve any difficulty. The fence was flimsy. Its main purpose was to denote the boundary between the freeway reserve, owned by the RTA, and the Blain Reserve, a reserve owned by the Council. The Blain Reserve was to the west of the freeway reserve and bordered on the Raby township. It commenced about 55 metres from the western edge of the freeway.

23 A well-worn path was established where pedestrians had walked across from the gap in the noise wall to the gap in the fence. This is graphically demonstrated in photographs, which show the path to be very clearly defined through fairly thick vegetation. The vegetation had been destroyed by the feet of pedestrians. Human traffic has been so heavy that problems of soil erosion have occurred.

24 The long established practice was for pedestrians to walk from one satellite suburb, across one set of double lanes carrying the traffic one way, across the median strip, and then across the other set of double lanes. The speed limit for vehicles travelling on the freeway was 110 kph. This practice was plainly a very dangerous one. The danger did not, however, inhibit the residents.

25 In 1997 Mr Gregory Upton was the Investigation and Specific Projects Manager of the RTA. In late 1997 he conducted an investigation of the incidence of pedestrians crossing the freeway between Raby and St Andrews. He provided a report to his superiors. I will return to this report but at this stage it is sufficient to observe that Mr Upton noted that there were breaks in the fencing at a number of points and he observed children and adults actually crossing the freeway with “very high frequency”.

26 Mr Upton stated that from field observations he estimated that about one person crossed the freeway between Raby and St Andrews, at the location of the path, every ten minutes during the day. He observed that this would equate roughly to 25,000 people per year. Extensive use of the path had occurred for many years.

The attempts of the RTA to prevent pedestrians crossing the freeway

27 In September 1993 a police inspection located 10 holes in the fence on one side of the road and 14 holes in the fence on the other side. Discussions took place between the Council and the RTA. They considered strengthening the existing fencing, conducting a safety campaign, constructing a pedestrian overbridge, and installing warning signs.

28 On 1 November 1993, the RTA wrote to the Council stating:

“While it is recognised that it is not possible to completely eliminate such acts of vandalism, Authority representatives have recently commenced inspections along the fence on a daily basis to effect immediate repairs where necessary to ensure the safety of pedestrians and motorists.”

29 On 10 November 1993, the Coroner reported on the inquest of a person who was fatally injured while crossing the freeway. The Coroner drew attention to the need for regular maintenance of the fences. At the time, there were fences on both sides of the freeway.

30 By 1994 an increasing number of fatalities and serious accidents involving pedestrians prompted the Council and the RTA to investigate the construction of two pedestrian overpasses in the vicinity.

31 On 9 March 1994, the Council wrote to the RTA suggesting that the RTA give consideration to providing more secure barriers in the open space abutting the freeway for a total distance of 650 metres.

32 In the period March 1993 to June 1997 there were seven reported accidents involving pedestrians in the relevant area.

33 By letter dated 24 January 1997, the Inspector of Police (Eaglevale) wrote to the mayor of the Council referring to a meeting of the Raby Community Safety Committee. He noted that in the area in question there were gaps in the fencing along the eastern side of the freeway and there were “no signs warning or deterring pedestrians from entering into or crossing the Freeway”. The letter asked the mayor to liaise with the RTA to have sections of the fencing “repaired/upgraded”.

34 The question of the construction of overpasses was then taken up once more. Community consultation on the issue, however, occurred only as from March 1999.

35 As I have noted, in late 1997 Mr Upton conducted an investigation of the incidence of pedestrians crossing the freeway between Raby and St Andrews. He testified in this regard:

“There was a very high frequency of crossings at the time I was there … I can recall that there was a young person on a skateboard going across the Freeway. I also noted a woman pushing a stroller across the Freeway. And I was frightened by the – with what I saw”.

36 In Mr Upton’s report of 27 November 1997, he noted that pedestrians had for many years illegally entered the road reserve to cross the freeway and the RTA had continually repaired the fencing to inhibit access. He said that the sound wall had been “continually smashed”. He said that the problem had been given coverage by the local media and had acquired political significance. This led to the Minister’s office asking to be kept informed of the RTA’s progress. After noting the extraordinary numbers of crossings, to which I have already referred, Mr Upton stated:

“With these numbers crossing, and also with the high volume of traffic travelling at speeds of 110 kph, the risk of a pedestrian being hit by a vehicle is very high.”

37 Mr Upton noted that apart from the frequent vandalism to the sound wall, the fences had repeatedly been damaged in an effort to maintain access to the path. He observed that the annual maintenance cost of repairing the fencing once a week was estimated to be $36,000. He concluded:

“To maintain this site in an acceptable condition the present annual cost to the RTA for repairs as a result of vandalism can therefore be expected to amount to more than $125,000.”

38 Mr Upton recommended:

“… [t]he RTA act immediately to discourage pedestrians from using this location to cross the Freeway …”

39 The RTA’s Asset Manager (a senior officer of the RTA) agreed with Mr Upton’s recommendations. He noted the following at the bottom of Mr Upton’s report:

40 Mr Upton expanded on his recommendations in the course of his cross-examination. He was asked about his standing instructions to RTA inspectors to deal with damage to the sound wall. He testified:

“There was – well, my instruction was that we needed to keep repairing the damage to the noise wall and to the fence as it occurred; and, I was advised that there would be a considerable cost involved with that, and I told them that that’s too bad, we’ve just got to continue to fix it, and we will look into how we can resolve the ongoing underlying problems relating to why the locals are – want to cause the damage, but we can’t stop repairing the fence and the noise walls, we have to continue to maintain that, even at the high frequency that it was.”

“It wasn’t our maintenance personnel’s decision to stop repairing the damage, they had to keep continuing to repair it as the damage became evident. That was my instructions to them, to continue to repair the damage as it became evident, and to keep an ongoing lookout for it.”

41 He confirmed that his standing instruction to continue to repair the damage “as it occurred,” and to keep an ongoing lookout for that damage, applied to the fencing as well as to the sound wall. He said that the fence “was to be repaired in the manner that the RTA carries out fence repairs; to reinstate the fence to an appropriate standard such that it would continue to serve to function as a fence”.

The circumstances leading to Ms Edson’s accident

42 On the evening of 28 August 1998 Ms Edson attended a friend’s birthday party. At about 7.00 pm she, together with a group of other young people, decided to visit the shops at Raby. Some wished to purchase food and others to visit the tavern to purchase liquor. There were about 10 to 15 youths involved. Generally, they were aged between about 13 years and about 15 years.

43 The group crossed the freeway, using the path through the gaps in the sound wall and the fence. Later, having made their purchases (and some having consumed alcohol), they walked to the Blain Reserve, intending to proceed eastwards from there across the freeway to St Andrews. While they were in the Blain Reserve, a police car pulled up.

44 Ms Edson was not able to cast any light on what followed as she had no memory of the events that occurred prior to her accident. Evidence, however, was led from some of the group of which she was part.

45 One of the group was Shane Thomas. He said that when the group went to the shops that evening in Raby one of them bought some alcohol. This person had bottles of beer and “light wine, or something” in bags. The group then commenced walking back to St Andrews. Mr Thomas and two others began drinking. As he was walking in the Blain Reserve towards the fence he saw the police pull up and shine a spotlight into the reserve. The spotlight was turned off and a policeman jumped out and started walking towards the group with a torch. This caused the group to scatter.

46 Michael Burgess, Ms Edson’s cousin, was there. He said someone screamed out “police”. He said that they saw the police lights and proceeded to run towards the freeway “to get across.” He was asked why he ran and he said “just the police coming”. He was asked why that would cause him to run and he said:

“They just always try to find something on you, to pin you for”.

47 Ms Edson was in the lead group with Amber Marks. Ms Marks heard someone call out “police”. Ms Edson was just past or inside the wire fence at the time, roughly a metre in front of her. Ms Marks did not see Ms Edson run.

48 Another member of the group, Vili Vai, said that when he saw the spotlight “people started running”. He saw Ms Edson running towards the freeway, about four metres ahead of him. He turned around to look at his friends. When he turned back he saw Ms Edson about to cross the highway. He said that he saw her “running out to the road” and he saw her when she and Amber Marks “were about to cross”. He said that Ms Edson stepped forward and the first car hit her. He said she “probably was walking” and was “probably trying to judge time between cars”.

49 Mr Vai was the only person who testified that he saw Ms Edson move across from the edge of the freeway to where she was struck. According to his evidence, it seems that, while Ms Edson ran to the edge of the freeway, she was not running as she moved across it. The judge found that the motorists who hit her had no opportunity to avoid her.

50 Immediately before the police were observed, the entire group intended to use the gap in the fence to cross the freeway to St Andrews. It seems from those who testified that some ran when they saw the police and others increased their pace. All intended to elude the police by crossing the freeway. Ms Edson arrived at the freeway before the others.

51 Murray ADCJ described as follows what happened once the group saw the police:

52 Whether Ms Edson was running or walking at the point of impact, the evidence is fairly consistent that she ran towards the edge of the freeway. I think it plain that she must have been in a state of panic and some fear. She had been with others who had been drinking and they all appeared to be apprehensive about the attitude of the police to them. She was reacting to the presence of the police and the actions of her peers.

53 The judge found that Ms Edson, too, had been drinking but was not able to find to what degree. He said that the evidence did not allow him to decide whether it was a factor in her actions.

The judge’s findings

54 Murray ADCJ held, in effect, that a general duty of care was imposed on the RTA in relation to users of the road, generally.

55 His Honour referred to the history of problems with pedestrians crossing the freeway where Ms Edson was injured and found that there was a serious risk of injury to persons involved in this activity. He held that that risk of injury was known to and recognised by the RTA.

56 His Honour held that the fencing on the western side of the freeway was “entirely inadequate to prevent persons gaining access to the freeway”. The fence was “in a pushed down position and had gaps in it for a substantial period of time prior to [Ms Edson’s] accident”. His Honour found that the sound wall was an inadequate barrier to persons wishing to gain access to the freeway.

57 His Honour observed:

“All that was necessary to prevent persons using the ‘illegal’ pathway was to erect a more substantial wall on the east, and more substantial fencing on the western side.”

58 He said further:

“It was not beyond the wit and resources of the RTA to remedy the deficiencies in the fencing by providing, in particular, more substantial fencing on the western side.”

59 Murray ADCJ found that, although Mr Upton was of the view that maintenance work was carried out frequently, “both the noise wall and the cyclone mesh were in a continual state of disrepair”. His Honour found that the RTA personnel had not executed Mr Upton’s standing instructions in regard to the maintenance and repair of the sound wall and the fencing.

60 His Honour concluded that, subject to considerations relating to the conduct of Ms Edson, the RTA had breached its duty of care by failing “to take appropriate steps to build and maintain sufficient fencing to prevent the entry of pedestrians onto the freeway”.

61 Having come to this provisional conclusion his Honour said:

“It remains to consider whether [Ms Edson] is disentitled to a verdict because of the obviousness of the risk.”

62 The judge found that the pedestrians who used the path across the freeway were trespassers. Section 70(b) of the Roads Act 1993 (NSW) authorises a penalty of ten penalty units for entering or leaving a freeway otherwise than by means of access or a route provided for that purpose. In particular, his Honour found that Ms Edson was trespassing on the freeway reserve, contrary to s 70(b), when she ran from the police.

63 His Honour referred to Commissioner for Railways (NSW) v Cardy (1959-60) 104 CLR 274 at 286 where Dixon CJ said:

“The rule remains that a man trespasses at his own risk and the occupier is under no duty to him except to refrain from intentional or wanton harm to him … The duty may be limited to perils of which the person so using the premises are unaware and which they are unlikely to expect and guard against …

In principle a duty of care should rest on a man to safeguard others from the grave danger or serious harm if knowingly he has created the danger or is responsible for its continued existence and is aware of the likelihood of others coming into proximity of the danger and has the means of preventing it or of averting the danger or of bringing it to their knowledge.”

64 His Honour then noted that the RTA had neither created the danger nor was it responsible for its continued existence. He said:

“The danger was the unauthorised use of the ‘pathway’ as a means of access across the Freeway.”

65 The judge said that the evidence established that Ms Edson “ran onto the Freeway, heedless of the traffic which could reasonably be expected to be upon it”.

66 The judge said that Ms Edson was of an age “when it was known to her that it was extremely hazardous to cross the freeway, at night, without paying regard to approaching traffic”. He said that she was not excused because she apparently panicked when the police appeared.

67 Murray ADCJ then had regard to the obviousness of the risk. He referred to Mawlodi v State Rail Authority of New SouthWales [2001] NSWCA 415. In this case Meagher JA (with whom Heydon JA and Rolfe AJA agreed) was concerned with a case where Mrs Mawlodi had been struck by a train and killed. She had obtained access to the railway line by means of a hole in a boundary fence that had been erected by the State Rail Authority. Meagher JA said at [4]:

“The plaintiff’s case against the SRA seems to be that that body should have kept the boundary fence in such repair that no person could insinuate himself through any hole in the fence or alternately should have installed warning notices. It is beyond doubt that the SRA knew that from time to time people did walk across the railway line. That presumably is why it erected the boundary fence in the first place. It also knew that the fence was vandalised from time to time and had to be repaired. The plaintiff’s rather unrealistic contention is that the SRA should have erected and/or repaired the fence in such a way that no person could ever create a hole in it. If this was so the SRA would be under a duty to erect very formidable fences on either side of every metropolitan railway line in New South Wales, a proposition so extraordinary that it could not possibly be correct.”

Romeo v Conservation Commission of the Northern

Territory

Phillis v Daly

68 Notwithstanding his provisional conclusion that the RTA had breached its duty of care, Murray ADCJ found that there was no breach of the RTA’s duty of care. This ultimate conclusion appears to have been based on the implications his Honour drew from his reliance on Cardy and his finding that Ms Edson was a trespasser, her careless behaviour, the obviousness of the risk, and the principles he derived from Mawlodi.

Paragraphs 1 to 3 of the RTA’s notice of contention

69 The RTA filed a notice of contention supporting the judge’s decision. The first three paragraphs of the notice of contention were as follows:

“1. The trial judge was in error in holding that [the RTA] owed any duty of care to [Ms Edson] with respect to her crossing the F5 freeway between Raby and St Andrews.

2. The trial judge was in error in holding that [the RTA] owed any duty of care to [Ms Edson] to erect more substantial fencing than that which it did.

3. The trial judge was in error in holding that [the RTA] was under a duty of care to [Ms Edson] to maintain such fencing as it had constructed on its land in a state such that at all times it was effectively an impenetrable barrier.”

70 Mr Garling SC, who together with Mr Craddock appeared for the RTA, said that these paragraphs of the notice of contention were based on the following propositions:

(a) The RTA had no statutory obligation to construct or maintain the wall or the fence or to do any road work; therefore, it would be an inappropriate intrusion of the common law if it were to compel the RTA to do work of this kind.

Roads Act

71 The general principles relating to the imposition of a common law duty of care on a statutory authority have often been considered and discussed by the High Court, see, for example, Sutherland Shire Council v Heyman (1985) 157 CLR 424, Pyrenees Shire Council v Day (1998) 192 CLR 330, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, Brodie v Singleton Shire Council (2001) 206 CLR 512 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.

72 These authorities lay down that a statutory body may come under a common law duty of care both in relation to the exercise and the failure to exercise its powers and functions. The common law duty is not a statutory duty of the kind enforceable by a public law remedy. As Gaudron J said in Crimmins at 18, “the statute pursuant to which the body is created and its powers conferred operates ‘in the milieu of the common law’. ... And the common law applies to that body unless excluded”. See also Sutherland Shire Council v Heyman at 460 where Mason J observed that “the statute facilitates the existence of a common law duty of care.” Whether the legislation expressly or impliedly excludes the operation of the common law is a matter of statutory construction.

73 The remarks of Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459-461 are the foundation of the later discussions in the other cases to which I have referred. In my reasons in Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports 81-749 (with which Mason P and McColl JA agreed) at [22] I drew the following propositions from Mason J’s observations:

“(a) Generally, a public authority, which is under no statutory obligation to exercise a power, owes no common law duty of care to do so.

(b) An authority may by its conduct, however, attract a duty of care that requires the exercise of the power.

(i) Where an authority, in the exercise of its functions, has created a danger.

(ii) Where the particular circumstances of an authority's occupation of premises or its ownership or control of a structure attracts to it a duty of care. In these cases the statute facilitates the existence of a duty of care.

(iii) Where a public authority acts so that others rely on it to take care for their safety. “

74 I noted that in Sutherland Shire Council v Heyman, Mason J did not suggest that the categories of circumstances in which an authority may attract a duty of care are closed. After referring to what had been said in Pyrenees Shire Council v Day, Crimmins, and Graham Barclay Oysters Pty Ltd v Ryan I observed (at [23]):

Sutherland Shire Council v Heyman

75 In considering the issues raised by the first three paragraphs of the RTA’s notice of contention, it is first necessary to examine the relevant legislation to determine whether anything in it reflects an intention to exclude the common law.

76 The RTA was constituted by the Transport Administration Act 1988 (NSW) (s 46(1)). Section 52A(1)(d) of that Act provides that it is a function of the RTA to promote traffic safety. Section 52A(2) empowers the RTA to:

“(a) Promote traffic safety measures or activities, including measures or activities for:

(i) the safety and protection of the public, including pedestrians, on roads or road related areas, and

(ii) the prevention of accidents on roads or road related areas …”

Transport Administration Act

77 I would note in passing that s 103 of the Roads Act 1993 (NSW) authorises a road authority to direct the owner or occupier of land to erect or install fences on the land that are, in the opinion of the road authority, in a sufficiently dangerous condition to threaten the safety of persons on a public road.

78 Section 7(1) of the Roads Act provides that the RTA is the road authority for all freeways. By s 145(1) all freeways are vested in fee simple in the RTA. Section 61(1) provides that the RTA has the exclusive function to make decisions as to what road work is to be carried out on any freeway. The dictionary to the Roads Act defines road work relevantly as including:

“[a]ny kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transitway station or service centre) that is constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, …”

79 In my view, there is nothing in the relevant legislation that supports the inference that the legislature intended to exclude the common law from applying to the conduct of the RTA.

80 The only provision of the Roads Act on which Mr Garling relied for his submission that the legislature did not intend there to be a private right of action against the RTA for failing to construct or maintain structures such as the wall and fence was s 70(b) of the Roads Act which creates an offence for trespassing into the freeway and the freeway reserve. He did not refer to the Transport Administration Act. In my opinion, s 70(b) is insufficient to detract from the long-held view that the RTA may attract a common law duty of care to it. To paraphrase Beazley JA in Chotiputhsilpa v Waterhouse [2005] NSWCA 295 at [54], in the case of a road authority, where there is a highly managed system for road management, and where the authority has sole control over the object concerned and its maintenance, the question whether that authority owes a general duty of care is almost rhetorical.

81 There are a number of instances where members of the High Court have expressed the view that a highway authority is capable of attracting a duty of care. In Sutherland Shire Council v Heyman Mason J explained at 460 that a duty of care might be imposed where an authority occupies premises, or owns or controls a highway. In Brodie v Singleton Shire Council Gaudron, McHugh and Gummow JJ said at paras [102] to [103], 558 to 559.:

“[O]n occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance.

It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury. Authorities having the control of highways are in a different position. They have physical control over the object or structure which is the source of the risk of harm. This places highway authorities in a category apart from other recipients of statutory powers.”

“The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the [Local Government] Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk.”

82 See also Pledge v Roads and Traffic Authority (2004) 205 ALR 56 where the High Court accepted that the RTA was liable at common law to a pedestrian for the design, construction, planting and maintenance of a nature strip that divided the Great Western Highway. Webb v South Australia (1982) 56 ALJR 912 is another High Court case where a highway authority was held to owe a duty of care to the pedestrian. There have been several cases in this Court where the RTA has been held to owe a common law duty of care in connection with its highway activities see, for example, Chotiputhsilpa v Waterhouse, RTA v McGregor (2005) 44 MVR 261, RTA v McGuiness (2003) Aust Torts Reports 81-688, Squillacioti v RTA [2002] NSWCA 133 and RTA v Fletcher Leighton Contractors (2001) 33 MVR 215.

83 Contrary to the submission advanced on behalf of the RTA, a finding in this case that the RTA has breached its common law duty of care by failing to exercise its statutory powers would not result in the common law thereby compelling the RTA to carry out road work. A finding of this kind would merely hold that the RTA had a duty of care to take reasonable steps for the safety of persons using the freeway and its surrounds.

84 In my opinion, the RTA’s submissions based on the first three paragraphs of its notice of contention should be rejected.

Obviousness of the risk as a factor affecting the existence of a duty of care

85 There is at present a difference within this Court as to whether, in cases involving a highway authority’s duty of care, the obviousness of the risk is relevant to the existence of a duty of care or whether it goes only to breach of duty.

86 Examples of cases which hold that the obviousness of the risk is relevant to the duty of care are Burwood Council v Byrnes [2002] NSWCA 343 and Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679. The reasoning in these cases is based on the statement of Gaudron, McHugh and Gummow JJ in Brodie at 581; [163]:

Ghantous

87 On the other hand, Temora Shire Council v Stein (2004) 134 LGERA 407 and Sutherland ShireCouncil v Henshaw [2004] NSWCA 386 hold that obviousness of the risk to the careful pedestrian goes to breach of the duty of care.

88 The concept that obviousness of the risk affects the existence of a duty of care rests on the extent to which a defendant is entitled to assume that persons will take reasonable care for their own safety. In Brodie at 581; [163] Gaudron, McHugh and Gummow JJ said, in regard to whether persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, “[e]ach case will, of course, turn on its own facts”. In my opinion, this means that no universal rule can be applied in regard to this issue. Each case has to be judged by reference to its own circumstances.

89 In my reasons in Clarke v Coleambally Ski Club [2004] NSWCA 376 (with which Beazley JA agreed) I endeavoured to show that there is no absolute category of cases in which it can be said that obviousness of the risk determines the existence of a duty of care. What has been said in cases such as Brodie on this issue can only be regarded as general guidelines although in most cases these guidelines will be determinative of the issue.

90 In Clarke v Coleambally Ski Club I said at [26] to [33]:

March v E & M H Stramare Pty Ltd

The law also holds that employers must take reasonable care for workers and, in doing so, must expect that some workers may be careless of their own safety even by taking obvious risks.

These are illustrations of the general proposition that in some circumstances the law of negligence considers it to be reasonable to pay due regard to the possible negligent conduct of others, even in respect of obvious risks. There are other similar examples.

As a general rule, however, walking along footpaths in the open air and participating in recreational activities in large areas of open land and water (such as national parks or reserves) fall into a different factual category. Two reasons for this are the following.

Firstly, while it is by no means unknown for participants in such activities to take obvious risks, it is common knowledge that such behaviour does not occur with anything like the frequency as does the lack of care for their own safety that is displayed by persons such as road users and workers in the employment context.

Secondly, there are usually serious practical difficulties (that may involve the incurring of considerable expense - often required to be borne, at least indirectly, by the general community) and environmental and aesthetic problems in taking effective steps to make areas such as footpaths, national parks, reserves and other areas of open space safe for persons who do not take proper care for themselves.

Shirt

Wyong Shire Council v Shirt

Brodie v Singleton Shire Council

Ghantous v

Hawkesbury City Council

91 In Liverpool City Council v Millett (2004) 43 MVR 193 Tobias JA (with whom Mason P agreed) followed the reasoning in Clarke v Coleambally Ski Club and distinguished between “what the law requires of a road authority in exercising reasonable care with respect to a pedestrian and what it requires in exercising such care with respect to a road user/driver”. Tobias JA said that the law regards it as reasonable in the case of pedestrians for the authority to expect an adult pedestrian in broad daylight to exercise ordinary care for his or her own safety to perceive and avoid obvious hazards. His Honour explained that, on the other hand, the law regards it as reasonable in the case of road users/drivers for the authority to remedy a defective roadway even where the road user fails to exercise ordinary care for his or her own safety. This is because the law recognises that drivers of motor vehicles, like employees, fail on a daily basis to exercise care for their own safety. For economic and social (policy) reasons, the law therefore requires road authorities, like employers, to take heed of the conduct of road users and, therefore, to exercise reasonable care to provide a roadway which will at worse reduce and at best eliminate, the injurious consequences of that conduct.

92 25,000 people each year crossed the freeway by using the well-worn path and ignoring the obvious risk involved. The RTA knew for several years that vast numbers of people were crossing the freeway in this way. The RTA therefore knew that in this particular area persons using the freeway were not taking care for themselves. This was a general practice in the neighbourhood and not confined to a few careless persons. Because of the exigencies of life in the satellite suburbs bordering on the freeway, the obvious risks involved in crossing by the path were not deterring the local inhabitants. Persons of all ages, but particularly young people were putting their lives and those of others at risk about every ten minutes on a daily basis.

93 In Brodie Gaudron, McHugh and Gummow JJ said at 580; [160]:

“In dealing with questions of breach of duty, whilst there is to be taken into account as a ‘variable factor’ the results of ‘inadvertence’ and ‘thoughtlessness’, a proper starting point may be the proposition that the persons using the road will themselves take ordinary care.”

94 In the circumstances I have described, the factual underpinning of the proposition that a road authority is duty bound only to require a road to be safe not in all circumstances but for pedestrians exercising reasonable care for their own safety, was absent. Here, the RTA long knew that the pedestrians were not exercising reasonable care for their own safety and, in large numbers, were constantly not doing so. The RTA could not rely on residents in the vicinity of the path to look after themselves and to act with due care.

95 Here the risk that had to be foreseen was one resulting from persons in large numbers ignoring the obvious hazards of crossing the freeway. To the knowledge of the RTA, the transport arrangements and pedestrian access from St Andrews to Raby were such that no reliance could be placed on the local inhabitants doing the sensible thing and not crossing the freeway in the face of the oncoming vehicles.

96 In a sense, the tavern and shops in Raby were an allurement to the children and young people in St Andrews. The law has long recognised that, particularly in the case of children, the presence of an allurement on land is relevant to the finding of a duty of care: see Hackshaw v Shaw (1984) 155 CLR 614 per Dawson J (at 672), Commissioner of Main Roads v Jones (2005) 215 ALR 418 at 436; [76] and cases cited in footnote 39. This reinforces the inference that a duty of care should be imposed on the RTA.

Conclusion as to whether the RTA owed persons crossing the freeway by the path a duty of care

97 The RTA was the owner and in control of the freeway and the freeway reserves on which the sound wall and the fence were constructed. It was also the owner and in sole control of the wall and the fence, which it maintained. It had the exclusive function of making decisions as to what road work was to be carried out on the freeway. Road work, as the dictionary to the Roads Act provides, includes any kind of work constructed or installed in the vicinity of the freeway for the purpose of facilitating its use as a road. The wall and the fence were constructed or installed for the purpose of facilitating the use of the freeway as a road. The RTA knew that large numbers of persons crossed the freeway by the path on a daily basis. It knew that this was an extremely hazardous practice and had led to a number of people being killed and seriously injured. It knew of the attractions of Raby to the persons who lived in St Andrews and the incentives to them to cross by the path. The RTA’s own senior officers had enjoined it to take appropriate steps to remove or reduce the danger. The users of the freeway and the persons living adjacent to it had no one else on whom they could rely to deal with dangers that the freeway and its surrounds might cause.

98 In these circumstances, I conclude that the RTA owed persons in the class in which Ms Edson fell a duty to exercise reasonable care for their safety.

Discussion of the judge’s findings regarding the RTA’s breach of its duty of care

99 I reiterate that, despite his provisional conclusion that the RTA had breached its duty of care, Murray ADCJ found that, by reason of Ms Edson being a trespasser, her careless behaviour, the obviousness of the risk, and the principles he derived from Mawlodi, the RTA, in fact, had not breached its duty of care.

100 I deal firstly with the consequences of Ms Edson being a trespasser. The judge’s reliance on Commissioner for Railways (NSW) v Cardy was misplaced. Since Hackshaw v Shaw (1984) 155 CLR 614 and Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 the law has accepted that an occupier of land owes a person entering the land the ordinary common law duty to take reasonable care. An occupier owes that general duty of care irrespective of whether that person enters as an invitee, licensee or trespasser (subject, of course, to there being circumstances that give rise to a general duty). The fact that a person is a trespasser may be relevant but that does not by itself mean that an occupier is under no duty of care to that person.

101 Secondly, the fact that Ms Edson was heedless of the traffic when she ran onto the freeway does not exculpate the RTA. The fact that she may have acted in a foolhardy way when she attempted to cross in the face of the traffic goes to contributory negligence. It does not excuse the RTA from failing to discharge its duty of care.

102 The third ground on which Murray ADCJ held that the RTA had not breached its duty of care was the obviousness of the risk. I have previously dealt with the obviousness of the risk insofar as it was a factor affecting the existence of a duty of care and my remarks in that respect are relevant to breach as well.

103 In Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Reports 81-815 I observed at [53]:

Thompson v Woolworths (Queensland) Pty Ltd

Mulligan v Coffs Harbour City Council

Vairy v Wyong Shire Council

Ghantous v Hawkesbury

City Council

Vairy

104 I have pointed out that the obvious risks involved in crossing the freeway by the path were not deterring the local inhabitants, of which many were children. The RTA could not assume that most persons would take reasonable care for their own safety. I do not think that in this case the obviousness of the risk was of such significance and importance as to be effectively conclusive. Where the exigencies of life and human nature combine to cause large numbers of persons to take grave risks in utilising areas under the control of a statutory authority, the community expects that the authority itself will take reasonable steps to limit the harm likely to result. It was the very function of the RTA, after all, to promote traffic safety. Considerations of common humanity would require the RTA to act: cf Hackshaw v Shaw (at 674 per Dawson J).

105 Fourthly, Mawlodi v State Rail Authority of New South Wales is distinguishable in material respects from the present case. There is a vast difference between the large numbers of persons who annually crossed the freeway at the point where Ms Edson was injured and the occasional instance of a person from time to time walking across railway lines. The present is not a case of casual trespassing; here 25,000 people each year crossed at the same spot in very dangerous circumstances – sometimes with fatal results. Unlike the situation in Mawlodi, the RTA’s own officer, Mr Upton, recommended that it “act immediately to discourage persons from using this location to cross the freeway”. Mr Upton urged that options and solutions be developed for implementation. In Mawlodi the SRA had taken measures that the Court found “to be perfectly reasonable”. It had erected a fence and put in place a system for regular inspection and repair of the fence. Here, the senior officers of the RTA had recognised that the measures that had been taken were inadequate and they themselves recommended that other urgent steps be taken.

106 Accordingly, I consider that his Honour’s reasons for finding that the RTA had not breached its duty of care cannot be accepted.

The notice of contention in regard to breach

107 The RTA’s notice of contention asserted that Murray ADCJ “was in error in holding that [the RTA] was in breach of any duty of care which he articulated”. In fact Murray ADCJ did not find that the RTA had breached its duty of care but made findings that could support a conclusion that it committed such a breach. Mr Garling relied on the notice of contention to challenge certain of his Honour’s findings.

108 Mr Garling first challenged his Honour’s observation that:

“It was not beyond the wit and resources of the RTA to remedy the deficiencies in the fencing by providing, in particular, more substantial fencing on the western side. There are many instances of where proper fencing is provided to prevent access to public utilities, for example, railways, airports, other motorways, the Harbour Bridge.”

109 Mr Garling submitted that his Honour wrongly took judicial notice of the fact that in other circumstances and in other places there are different and more substantial forms of fencing that are provided. However, I do not think that the judge erred in referring to instances where fencing is provided to prevent access to public places. This is common knowledge. In any event, his Honour does not appear to have relied on this knowledge to any material extent.

110 Mr Garling submitted that his Honour wrongly failed to identify the precise nature of the fencing that could have been provided.

111 There was evidence that the existing fencing was flimsy and could easily be knocked down. Mr Upton, in his report, stated, with the concurrence of the Asset Manager:

“Construction of a stronger noise wall and fencing at this location could impede access and reduce maintenance costs.”

“A fence similar to a pool fence of strong upright steel bars with considerable height to make it very difficult for someone to get across the top of or to cut through”.

112 In my view, from the way in which the case was run, it is quite apparent that, by his finding that the RTA should have provided more substantial fencing, his Honour was referring to fencing of the kind that Mr Upton contemplated.

113 It is to be noted that the RTA did not raise an “availability of resources” argument. Mr Upton did not appear to consider that there would be any difficulty in funding his recommendations. There was no suggestion that funding might be a problem.

114 I would not uphold the RTA’s notice of contention in regard to breach.

The notice of contention in regard to causation

115 The RTA’s notice of contention asserted that it was not open to conclude, on the findings of Murray ADCJ, that any breach of duty on the part of the RTA caused or materially contributed to Ms Edson’s loss.

116 Mr Garling submitted that for Ms Edson to succeed “in the negligent maintenance case” she would have to demonstrate “what was an appropriate regime of maintenance, it not being 24 hours a day 7 days a week”.

117 Mr Upton explained what was “an appropriate regime of maintenance”. He in fact gave instructions to the RTA inspectors “to continue to repair the damage as it became evident, and to keep an on-going lookout for it”. In my view, this adequately described the maintenance that should have been carried out. This evidence was not challenged. What was meant by an “on-going lookout” has to be seen in the context of the RTA’s letter to the Council of 1 November 1993 stating that their representatives “had commenced inspections along the fence on a daily basis to effect immediate repairs where necessary to ensure the safety of pedestrians and motorists”.

118 Ms Edson’s case on maintenance was based on the fact that the RTA officers had not complied with the standing instructions they received from Mr Upton. The judge found that these allegations had been proved. The fence on the western side was allowed to remain down and to have gaps in it “for a substantial period of time prior to [Ms Edson’s] accident”. The gap in the sound wall, too, was allowed to stand almost indefinitely.

119 Ms Edson’s case on causation as a whole has to be judged by reference to the evidence and findings as to the wall as well as the fence. The judge found that the use of the path would have been prevented by the construction of an impenetrable barrier on one side only of the freeway. That, he said, would be a reasonable response to the risk of injury.

120 It was not suggested that the wall could have been easily climbed. The inference is that this is not the case; that being the reason for unknown persons continually removing or destroying panels to create gaps in it.

121 It is common sense that a sturdy two-metre chain wire mesh fence would not easily be climbed. There is no evidence of persons gaining access to the freeway by climbing the fence. They gained access by pushing parts of the fence down or making holes in it. Had Mr Upton’s recommendation (with which the Asset Manager concurred) been implemented and a pool fence of strong upright steel bars with considerable height been installed, it would have been “very difficult” (as Mr Upton testified) for someone to climb over or to cut through it.

122 Mr Upton said that he would have repaired the sound wall with full strength concrete. This would have made it harder for people to break the concrete with a sledgehammer or kick it with their feet. This is how he understood it had been broken in the past.

123 Had Mr Upton’s instructions as to maintenance been carried out, the gaps in the wall and the fence would have been closed on the day that each was made.

124 Had all these construction and maintenance measures been taken (both with regard to the wall and the fence) it would have been far more difficult for the local inhabitants to cross the freeway in accordance with their established practice.

125 Ms Edson and the group of young people with whom she was with on the evening of her accident took it for granted that they would be able to cross the freeway as they did. When they noticed the arrival of the police they all moved towards the freeway in order to cross it and get away from the police. Their actions and, in particular, those of Ms Edson on the evening in question were all based on their belief that there was ready access across the freeway as had long been the case.

126 In my view, had the RTA not breached its duty of care in respects found by the judge, the people in the area and, in particular, the younger inhabitants, would have been dissuaded from using the path. While it may be that at times persons would have been able to penetrate the barriers, these would have been far more isolated occurrences. The general practice of crossing the freeway would have ceased. The inference to be drawn, based on common sense, is that the existence of a stronger wall and a fence made of stronger (and different) material, together with regular maintenance and repair, would have substantially deterred people from crossing the freeway.

127 In my view, had these measures been taken Ms Edson would not have attempted to cross the freeway. I would not uphold the notice of contention in this respect.

Contributory negligence

128 The judge made no finding as to contributory negligence but, in my view, there can be no doubt that Ms Edson was contributorily negligent.

129 Of course, every case has to be determined by reference to its own facts and the facts in this case are unique. Mr Barker QC, who together with Mr Van Aalst appeared for Ms Edson, submitted that Ms Edson had panicked when she learnt that the police had arrived. I think that is correct. She was not alone in this. It seems that all the other members of the party did the same. What caused them to panic is not relevant. The fact is that they appeared to be fearful of the police and reacted in a thoughtless and impulsive way.

130 Age is a relevant consideration. In McHale v Watson (1966) 115 CLR 199 at 229, Owen J said:

“It is plain that in dealing with the question of contributory negligence on the part of a child, its age is a relevant fact since the care expected of it is that reasonably to be expected of a child of similar age, intelligence and experience. That has been laid down again and again.”

Chotiputhsilpa v Waterhouse

131 It is not difficult to understand that in certain circumstances a reasonable 13 year old might panic and be terrified by the thought of being confronted by police.

132 There are other factors that are relevant. Firstly, despite her panicked state, Ms Edson well knew that crossing the freeway was extremely dangerous, particularly at night. She had often crossed before and was accustomed to take her chances in doing so. This attitude of being heedless of her own safety in crossing the freeway must have significantly influenced her conduct when she ran away from the police.

133 I would add that in crossing the freeway Ms Edson disobeyed what her mother described as a “strict thing” in her house, namely, that “you did not cross the highway”. Ms Edson’s mother said that was the rule that she imposed on her children.

134 The dangers to Ms Edson in crossing the freeway as she did were obvious.

135 In my opinion, even in her panicked situation, Ms Edson was careless of her own safety to a significant degree.

136 In my opinion, the failure of the RTA to have appropriate regard for the safety of the class of persons, of which Ms Edson was a member, was also seriously negligent. This negligence went on for many years notwithstanding warnings and expressions of concern from staff members, the Council and politicians.

137 All these matters have to be weighed in the balance. In all the circumstances I have reached the conclusion that it would be appropriate to assess contributory negligence on the part of Ms Edson as being 40%.

Damages

138 I have mentioned that Murray ADCJ assessed damages at $461,524.30. Of this sum $200,000 was for future economic loss. This amount is the subject of challenge by way of cross-appeal.

139 Ms Edson suffered a severely comminuted and displaced fracture of the right acetabulum, and an unstable and displaced pelvic ring disruption. She also had a complete tear of the lateral, co-lateral and posterior cruciate ligaments in the left knee.

140 At the time of the trial Ms Edson had pelvic pain that was secondary to degenerative changes (post traumatic osteoarthritis) in the right sacro-iliac and right hip. She had residual instability in the left knee and pain in the right shoulder, secondary to the fractured clavicle. There was a 25% chance of her requiring a total hip replacement at a later stage. She would require at least one further revision if that total hip replacement occurred. There was a 20% chance that she would need a left total knee replacement. It was likely that she would require at least one revision if that occurred.

141 The judge found that Ms Edson was fit for full-time work but would be unfit for active work involving lifting objects in excess of 10 kilos. She would also be unfit for work requiring prolonged standing or walking. These restrictions are permanent. There was some evidence of psychological and brain damage but the judge rejected this.

142 The judge’s findings in regard to past economic loss are relevant to his challenged findings as to future economic loss. His Honour dealt with past economic loss as follows:

“At the time of the accident [Ms Edson] was in year 8 at high school. Following the accident she was hospitalised until 7 October 1998, and remained at home recuperating for the rest of the year. She resumed high school in 1999, but left school at the end of year 10 in the year 2000. She was a poor student, both before and after the accident. In July 2001 she gained employment … as an administration clerk/junior secretary.

In this position she was unable to work full-time, and frequently required time off work for doctors’ appointments. [Her employers describe her] as a quick learner, and if inclined, had the capacity to develop her secretarial skills further. Her chances of advancement, however, were limited by her inability to work full-time.

In April 2004 [Ms Edson] moved with her family to Tweed Heads, where she hopes to study to become a beautician.”

143 His Honour concluded:

“It is difficult to identify from this evidence any precise economic loss. No doubt her education was disrupted by the effects of her injury, and I believe that her future work capacity will be curtailed substantially by the development of osteoarthritis in both the hip and left knee in the future.”

144 Murray ADCJ referred to a report by a forensic accountant, Mr Geoff Collins, which identified a past loss of $14,317. This loss was calculated on the assumption that Ms Edson would have been able to work full-time, but was unable to do so. For the period from 2002 to 2004 Ms Edson’s actual earnings were $34,629. Mr Collins calculated that, on the basis of the relevant State award, Ms Edson would have earned $47,719. The judge considered that on these figures he should allow the sum of $8,000 as representing Ms Edson’s past economic loss.

145 His Honour dealt with future economic loss as follows:

“I think [Ms Edson] will be prevented from realising her full work potential in the future. I think also that she will have periods of time out of the work force because of the need for operative treatment. I also think that [Ms Edson] will be unable to work, because of her injuries, until the age of 65. Doing the best I can I would access her future economic loss, by way of buffer only, at $200,000. The above figures are inclusive of loss of superannuation benefit.”

146 This assessment takes into account the fact that Ms Edson ceased working as a secretary and took up work as a beautician. She testified that she found work as a secretary too draining. Her back and hip were too painful and she said that she could not commit herself permanently to work of this kind. She chose to become a beautician as she could then work at home when she felt up to it.

147 His Honour’s award is challenged on two grounds. The first was described as follows in the RTA’s written submissions:

“There is no evidentiary foundation for such a substantial amount. There was no medical evidence that osteoarthritis would curtail her career. If there is to be a surgical response to osteoarthritis, some period of recuperation is to be expected, and thus a buffer may be justified, but not such as to justify this award. The award, having regard to its quantum, appears to presume that such surgical intervention would fail. His Honour’s discretion miscarried, the award being manifestly excessive, and there being no evidentiary foundation for findings supporting such a figure.”

148 The trial ended in September 2004. At that time Ms Edson was nearly 20 years of age, having been born on 31 October 1984. The $200,000 awarded by the judge for future economic loss therefore represents an award for a period of some 45 years.

149 Mr Collins calculated Ms Edson’s future loss of earning capacity. He commenced by taking into account the fact that she had worked as a secretary/personal assistant and he had regard to earnings in accordance with the State award (as he had done in regard to past economic loss). He then assessed Ms Edson’s expected future earning capacity as a beautician by reference to the average weekly earnings for beauticians. The average weekly earnings for beauticians were substantially lower than the average weekly earnings for secretaries. On this basis he calculated the value of Ms Edson’s loss of capacity as $213,088 and loss of potential superannuation contributions as $23,803, giving a total loss of $236,891.

150 There is little evidence as to whether the pain from which Ms Edson suffered would endure. Dr Harris, an orthopaedic and spine specialist, expressed the opinion on 28 August 2003 that her symptoms were unlikely to change significantly in the next 12 months. Dr Benanzio, an orthopaedic surgeon, expressed the opinion by report dated 23 October 2002 that post-traumatic degenerative changes may be expected in the right hip joint and the left knee joint. He said the prognosis “remains very guarded”. There was no other evidence on this issue. In my opinion, it was open to the judge to infer that the pain from which Ms Edson suffered would endure permanently.

151 The net earnings of a secretary were about $23,000 per annum. Mr Garling submitted that if the reduction in working life was taken to be 10 years the present day value of the loss based on the wages of a secretary compared to those of a beautician would be about $57,000. If it be assumed that Ms Edson would lose a year’s work by reason of her various operations, a further loss of $23,000 would have to be taken into account. That brings one to an amount of $80,000.

152 In my opinion, Mr Garling’s submissions have force. In my opinion, the award made by his Honour was excessive and an appropriate award as a buffer for future economic loss would be $125,000.

153 The next aspect of the RTA’s challenge to the award for future economic loss is the fact that his Honour did not reduce the buffer by any discount for vicissitudes. In my opinion, however, the very nature of a buffer takes into account vicissitudes and I do not think there is substance in the RTA’s argument in this respect.

Costs

154 Ms Edson seeks an order that the RTA pay to the Council its costs for which she would otherwise be responsible. The parties dealt with this issue by written submissions.

155 The order sought is commonly known as a Bullock order. In Almeida v Universal Dye Works Pty Ltd (No2) [2001] NSWCA 156 Priestley JA approved the remarks of Giles CJ Comm D in Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 56-605 where his Honour said:

Lackersteen v Jones (No 2)

156 The first part of Ms Edson’s written submissions contended that it was reasonable for her to argue at trial that the Council “had and exercised control over its reserves and in particular over the Blain Reserve”.

157 The mere fact, however, that Ms Edson had a reasonable case against the Council does not justify the making of a Bullock order.

158 Ms Edson then submitted that the RTA “materially contributed to the joinder and pursuit of the claim against the Council”. Ms Edson’s written submissions contended that, on the findings made by Murray ADCJ, it could be inferred that the RTA “was acting as if it needed to have the Council join with it to take steps to undertake works necessary to prevent access being gained to the freeway …”.

159 His Honour found that the RTA sought the assistance of the Council in the development of proposals for a footbridge and that there were substantial communications between the Council and the RTA. These matters, alone, do not justify the making of a Bullock order. I do not accept that the RTA was acting as submitted.

160 The respondent sought to read parts of an affidavit of 6 November 2002 by the solicitor who had carriage of the case for Ms Edson. According to Ms Edson’s written submissions:

“If leave is granted to read the above parts of the affidavit, [Ms Edson] will contend: -

(a) her advisors acted reasonably and prudently in continuing a case against the Council;

(b) [the RTA] acted unreasonably in not joining in the release of the Council;

(c) [The RTA] has been on notice since 11 October 2002 that [Ms Edson] would seek a costs order against [the RTA] if [Ms Edson] failed in the action against the Council.”

161 The matters referred to in sub-paragraphs (a) and (c) do not advance Ms Edson’s case in relation to the making of a Bullock order.

162 The submission in sub-paragraph (b) appears to be based on a letter dated 11 October 2002 written by Ms Edson’s solicitors to the solicitors for the RTA. This letter contains the following paragraph:

“Please advise whether you agree that all liability in respect of the plaintiff’s claim rests with you. If so we will attend to releasing the Campbelltown City Council from the proceedings.”

163 In my opinion, it was not unreasonable at the time for the RTA to refuse to agree that all liability rested with it. The phraseology used in the letter seems to call for an admission of liability from the RTA. It was not unreasonable for the RTA at that stage to deny liability.

164 I am not persuaded by the material in the affidavit of 6 November 2002 that a Bullock order should be made. I would dismiss Ms Edson’s application for a Bullock order.

Conclusion

165 I have expressed the view that the RTA owed a duty of care to Ms Edson that it breached.

166 I have expressed the view that Ms Edson was guilty of contributory negligence and responsibility for the damage she incurred should be apportioned at 40 per cent.

167 I have expressed the opinion that the award made by the judge for future economic loss should be reduced from $200,000 to $125,000. This has the effect of reducing the assessment of damages from $461,524 to $386,524.

168 On this basis Ms Edson would be entitled to damages in the sum of $231,914, being 60% of $386,524.

169 I therefore propose the following orders:

(a) The appeal is upheld with costs.

(b) The orders made by Murray ADCJ granting judgment and orders for costs in favour of the RTA are set aside.

(c) The cross-appeal is upheld with costs.

170 HUNT AJA: I agree with Ipp JA.

**********

08/09/2006 - Reference to RTA (NSW) v Palmer deleted. - Paragraph(s) 82 & in Cover Sheet

11/09/2006 - Headnote, p 1: "SC 10256/00" replaced with "DC 10256/00"Judgment, p 1: "SC 10256/00" replaced with "DC 10256/00" - Paragraph(s) Not applicable

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Citations

Edson v Roads and Traffic Authority [2006] NSWCA 68

Most Recent Citation

Sher v Smart [2018] TASSC 2

Cases Citing This Decision

18

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42

Roads & Traffic Authority of NSW v Dederer & Anor [2007] HCATrans 233

Cases Cited

32

Statutory Material Cited

2

Mawlodi v SRA of NSW [2001] NSWCA 415

Dietrich v The Queen [1992] HCA 57

Pyrenees Shire Council v Day [1998] HCA 3

CITATION:	Edson v Roads & Traffic Authority [2006] NSWCA 68 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	01/09/05
JUDGMENT DATE:	7 April 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 2; Hunt AJA at 170
DECISION:	(1) Appeal upheld with costs (2) Orders made by Murray ADCJ granting judgment and orders for costs in favour of the RTA set aside (3) Cross-appeal is upheld with costs (4) Verdict and judgment for Ms Edson in the sum of $231,914 with costs.
CATCHWORDS:	NEGLIGENCE - Appellant injured in car accident as she was attempting to cross a freeway - fence and wall blocking freeway was knocked down to allow access - crossing freeway in this way was common practice in the community - liability of road authority - application of common law duty of care to a statutory authority - duty of care - relationship between obviousness of a risk and the existence of a duty of care - Mawlodi v State Rail Authority of New South Wales [2001] NSWCA 415 distinguished - presence of allurement - causation - contributory negligence. - PRACTICE AND PROCEDURE - Costs - application for a Bullock order. D
LEGISLATION CITED:	Roads Act 1993 (NSW), ss 7(1), 61(1), 70(b), 103, 145(1) Transport Administration Act 1988 (NSW), ss 46(1), 52A(1) & 52A(2), 53
CASES CITED:	Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156 Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports 81-749 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council (2001) 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343 Chotiputhsilpa v Waterhouse [2005] NSWCA 295 Clarke v Coleambally Ski Club [2004] NSWCA 376 Commissioner for Railways (NSW) v Cardy (1959-60) 104 CLR 274 Commissioner of Main Roads v Jones (2005) 215 ALR 418 Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Reports 81-815 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Hackshaw v Shaw (1984) 155 CLR 614 Liverpool City Council v Millett (2004) 43 MVR 193 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Mawlodi v State Rail Authority of New South Wales [2001] NSWCA 415 McHale v Watson (1966) 115 CLR 199 Mulligan v Coffs Harbour City Council (2005) 211 ALR 764 Phillis v Daly (1988) 15 NSWLR 65 Pledge v Roads and Traffic Authority (2004) 205 ALR 56 Pyrenees Shire Council v Day (1998) 192 CLR 330 Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679 Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 454 RTA v Fletcher Leighton Contractors (2001) 33 MVR 215 RTA v McGregor (2005) 44 MVR 261 Squillacioti v RTA [2002] NSWCA 133 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 Temora Shire Council v Stein (2004) 134 LGERA 407 Thompson v Woolworths (Queensland) Pty Ltd (2005) 79 ALJR 904 Vairy v Wyong Shire Council (2005) 221 ALR 711 Webb v South Australia (1982) 56 ALJR 912 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Nicole Edson (Appellant) Roads & Traffic Authority (Respondent)
FILE NUMBER(S):	CA 41008/04
COUNSEL:	I Barker QC/J Van Aalst (Appellant) P R Garling SC/G Craddock (Respondent)
SOLICITORS:	Doherty Partners (Appellant) McCabe Terrill (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 10256/00
LOWER COURT JUDICIAL OFFICER:	Murray ADCJ
LOWER COURT DATE OF DECISION:	01/09/2005