Jackson v RTA NSW

[2004] HCATrans 10

[2004] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S109 of 2003

B e t w e e n -

PAUL KENNETH JACKSON

Applicant

and

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2004, AT 9.33 AM

Copyright in the High Court of Australia

MR R.J. COLQUHOUN:   May it please the Court, I appear for the applicant.  (instructed by Robert Johns & Company)

MR J.E. MACONACHIE, QC:   I appear with my learned friend, MR R.A. CAVANAGH, for the respondent, if your Honours please.  (instructed by Henry Davis York Lawyers)

GLEESON CJ:   Yes, Mr Colquhoun.

MR COLQUHOUN:   Your Honour, this case, in many respects, was a routine District Court case in which the trial judge found that the Roads and Traffic Authority was negligent, that there was contributory negligence on the part of the plaintiff, and gave a realistic verdict of just over $66,000.  The Court of Appeal changed this into something more complex.  Your Honours, I wish to deal with three matters in particular, that is, the question of foreseeability, the question of duty and its many forms of expression, including contributory negligence, and the question of failing to give leave to adduce evidence at the Court of Appeal.

Your Honours, when the area where the applicant fell over was repaired after the hearing before the trial judge and before the appeal, there was no blowing of trumpets or publicity concerning the fact that it cost $13,000 only to fix up this area, but this was material in the sense that throughout the course of the case, the pleadings, and it is referred to in the judgment, the Roads and Traffic Authority denied it had any power or authority over that area that it subsequently fixed up.

Your Honours, I would like to take you, first, if I may, to paragraph 41 of the Court of Appeal judgment on page 34, and paragraph 42.  Now, in paragraph 41, Justice Stein said:

What might a reasonable authority reasonably foresee?  It could foresee that a pedestrian might walk along the cycleway during the night.  It might foresee that a pedestrian or motor vehicle occupant might, through illness or human necessity, step over the guard rail onto the bushland at the side of the road to be sick or urinate.  But could it reasonably foresee that a pedestrian would step over the guard rail at this point . . . and, importantly, move into the bushland away from the guard rail and roadway?

Your Honours, my submission is this.  Why distinguish from that particular area where the plaintiff stepped over from the area 5 metres away, 10 metres away, 100 metres away.  If it is reasonably foreseeable that a person may step over the guard rail in the general area, how can one disallow that it is foreseeable that the person may step over at a particular point?

So that I submit that it is inaccurate for Justice Stein to say that it is fanciful or far‑fetched that someone would step over where the applicant stepped over.  It was reasonably foreseeable.  The simple thing is that there was erected a bridge with a rail that was a metre high.  Immediately that one got over the bridge it dropped to a 700 millimetre guard rail.

Now, with respect, an ordinary person would see that something, firstly, different has occurred.  An ordinary person would suspect reasonably that the danger had passed because why drop the rail so significantly?  The fact is this, that had the applicant gone over the guard rail just a few metres up he would have been perfectly safe.  It was because of the acute angle of the area over which he stepped, the acute angle at which the concrete went away from the bridge, that there was no room right there.  It was an unsuspecting trap, and that is why the accident occurred.

It was perfectly reasonable to do one of three things, and his Honour found that it was reasonable for the rail height to continue from the bridge for some distance further on.  It was not a cost factor involved that was enormous.  The Roads and Traffic Authority went further than that after the trial and spent $13,000.  The fact is that the rail could have been continued on, the bridge underneath could have been wider so there was a greater area, or it could have been cycloned off as it eventually was.

Now, in this case, his Honour found that the effective cause of the problem, the area, was the Roads and Traffic Authority, the effective cause of the accident happening, of creating the danger of allowing it to continue.  His Honour did not find that the plaintiff was reckless – in fact, his Honour said he was not – or that he was on a hijinks, and his Honour did not find that the plaintiff was not exercising any care for his own safety.  His Honour specifically found that the plaintiff was exercising some care and that occurs at page 7 of the application book at lines 20 to 25.  At line 26:

it is clear that the plaintiff was negligent in not taking sufficient care for his own safety . . . I accept the plaintiff’s submission that the plaintiff was exercising some care for his own safety by waiting to cross the rail until the rail was lower and could be stepped over without difficulty –

McHUGH J:   What would your submission be if there was no rail there at all when your client suffered this accident?

MR COLQUHOUN:   Your Honour, there was a rail there.  Now, if there was no rail there then my submission would be that there should have been something there, because the pedestrian should be alerted to the fact that there was a danger there, because it was bushland, it was night time, there was no lighting.  That would be my submission.

McHUGH J:   That means that in any spot along any road in New South Wales the Road Traffic Authority has an obligation to provide fencing if there is any prospect that somebody will walk off the road and onto the side and may fall down?

MR COLQUHOUN:   Where it created the danger, your Honour, where it created it.  It created this one, and fixed it.

McHUGH J:   What do you mean it created it?  By doing what?

MR COLQUHOUN:   When the bridge was built and the underneath was built this is where the acute angle came into force.  It created the acute angle of what is underneath the bridge where the plaintiff stepped over.

GLEESON CJ:   That sounds like a reversion to a theory that has recently been overturned.

MR COLQUHOUN:   Your Honour, these are my submissions in the practical circumstances of this case.  In this case, on these facts, as a matter of logic and commonsense, there was negligence here and there should have been something done because it was created by the Roads and Traffic Authority.  It adopted it, it continued it and here was a situation where someone unsuspecting, and it is recognised that people may go over the railing, people may go into the bushes, and the bushes were such as to mask, to hide the danger that was there.  After the accident, it was cleaned up and made safe.  That is after the accident.

As a matter of going back to basics, as we have said, the undemanding foreseeability test, and I know that there have been a number of discussions about that, but nevertheless, this is a case where there was a danger to people who may reasonably go over the railing there or go into the bushland, and it was only at that particular point where it was this extreme danger - if someone goes into the bushes because they are sick or to urinate, or a ball goes over, one would expect they may go a short distance for privacy and other reasons.  Now, this was a cycleway, pedestrian way, of the same contours, the same bitumen, the same surface as the roadway, so that one would understandably wish to go off the roadway if one had some personal thing such as being sick or urinating or worse.

So this is the situation where the plaintiff was taking some care for his own safety, as found by the trial judge, and in the normal situation and

in the law that we have been brought up in, if someone is the effective cause of a problem and they are negligent in doing so, there is a verdict against them.  If there is contributory negligence because someone contributes to it, but it is to a lesser degree than the percentages now set by the courts, whether it be 80 per cent or 50 per cent, there is a deduction because of that proportion of blame.

Now, it has been said by my learned opponents that having regard to what was said in Brodie’s Case and in other cases, Standing and Redding, that there is a duty only owed to those taking reasonable care for their own safety.  My submission is here, what has been said in those cases is that pedestrians have, generally, an advantage in being able to see what it is, if they look properly, the danger they are stepping into, but there are the cases made where, as in Webb someone was running for a bus and there was inadvertence, there was grass over a hole, there was bush covering something up, there are these things, and allowances must be made for those who are exercising care, but through inadvertence are injured.

Now, this is a situation where the applicant was taking some care for his own safety, and he was seriously injured.  It was night time, there were bushes, and whilst he had been over the pedestrian way three times before, that does not give him an absolute great memory of knowledge that there was a danger precisely there, but yet the Authority could have averted that danger by doing the things that I have referred to, and which the trial judge referred to.

Now, your Honours, the Court of Appeal, with respect, took words in the judgments of Brodie, Ghantous, Richmond Valley, which had the statement of general principles, but there are also additions to those general principles such as I have referred to.  It was a violation of those principles of law which has led to, in my respectful submission, a miscarriage of justice in this case.

In relation to the additional evidence that was sought to be led at the Court of Appeal the material came from the Roads and Traffic Authority.  It was aware of it.  It produced it on subpoena after some difficulties in producing it and it was aware of it, and the material that was produced was relevant.  It was not available at the hearing.  It was credible, it was reliable and it went to the point of the power and authority that the RTA had over the whole of the area, and ought to be let in.  Whether it would have made any difference to their Honours’ decision may be another matter, but it is a matter they should have given consideration to.  Your Honour, they are my submissions.

GLEESON CJ:   Thank you, Mr Colquhoun.  We do not need to hear you, Mr Maconachie.

The outcome of this case in the Court of Appeal turned on the application of well‑established principles to the facts and circumstances of the particular case and the case does not give rise to an issue suitable to a grant of special leave to appeal.  The application will be dismissed with costs.

AT 9.50 AM THE MATTER WAS CONCLUDED