Lettice v Council of the Shire of Muswellbrook
[2000] NSWSC 81
•24 February 2000
CITATION: Lettice v Council of the Shire of Muswellbrook [2000] NSWSC 81 FILE NUMBER(S): SC 19336/93 HEARING DATE(S): 21/9/98-11/3/99 JUDGMENT DATE: 24 February 2000 PARTIES :
Jason Lettice
Council of the Shire of Muswellbrook
Roads and Traffic Authority of NSW
State of NSWJUDGMENT OF: Dowd J at 1
COUNSEL : P: Mr Gross QC, Mr Boyd, Mr Bauer
D1: Mr Ward
D2: Mr Harvey
D3: Mr SimpkinsSOLICITORS: P: Carrol & O'Dea Solicitors
D1: Audrey Lee Solicitors
D2: Crown SolicitorsCATCHWORDS: negligence - duty of care - liability of public authority - contributory negligence - alcohol consumption by plaintiff - apportionment between joint tortfeasors - LEGISLATION CITED: Crown Proceedings Act 1988 CASES CITED: Buckle v Bayswater Road Board (1936) 57 CLR 259
Romeo v Conservation Commission of the Northern Territory (1988) 151 ALR 263
Australian Safeway Stores Pty Limited v Zaluzna (1987) CLR 479
State Rail Authority v O'Keefe (NSW, Court of Appeal, unreported 16 March 1995)
Wyong Shire Coucil v Shirt (1980) 146 CLR 40
Mercer v Commissioner for Road Transport and Tramways (1936) 56 CLR 580
Podmore v Aquatours (1984) NSWLR 111DECISION: Verdict for plaintiff against first and third defendant; Plaintiff contributed thirty percent; Damages apportioned first defendant five sixth; third defendant one sixth
IN THE SUPREME COURT
OF NEW SOUTH WALES
(COMMON LAW DIVISION)DOWD J
JASON LETTICE -v- MUSWELLBROOK SHIRE COUNCIL & 2 ORS
JUDGMENT
1 The plaintiff in these proceedings sued the first defendant, the Council of the Shire of Muswellbrook (“the Council”), the Roads and Traffic Authority of NSW (“the RTA”) and the State of NSW (“the State”) on the basis that the Council and the RTA are statutory authorities and the State is liable to be sued as the NSW Department of Public Works pursuant s.5 of the Crown Proceedings Act 1988. The claim of the plaintiff was that one or more of the defendants was responsible for the design and control of the Wilkinson Avenue Bridge located at Muswellbrook in the Hunter Valley in the State of NSW.
2 The plaintiff who had fallen from that bridge at Muswellbrook, had leant over a railing, lost his footing and over balanced falling some ten metres into a creek bed below as a result of which he suffered severe spinal injuries resulting in paraplegia and also other injuries.
3 The negligence alleged against the Council was that the horizontal pedestrian walkway railing was of such a shape and width as to make it foreseeable that persons would easily overbalance and fall and also failing to provide an adequate hand holding structure. The plaintiff further alleged the Council was negligent in failing to construct the pedestrian barrier rail to an adequate height and failure to comply with the guidelines in force for the erection of such railings.
4 As against the RTA and the State the plaintiff made similar claims of negligence including failure to post a warning that persons should not lean over the railing and failure to advise the Council of the risk of injury.
5 The Council denied negligence but said that if it were negligent, the plaintiff contributed by failing to keep a proper lookout and to take reasonable care for his safety in all the circumstances. The Council further alleged that the plaintiff leant over the railing whilst in an intoxicated state knowing that there was a potential danger in failing to hold on to the railing of the bridge, and failed to take adequate precautions for his safety.
6 The RTA denied negligence and alleged contribution by the plaintiff in that the plaintiff failed to hold onto the railing, failed to keep a proper lookout and failed to take adequate care for his own safety. The State denied negligence and similarly alleged contributory negligence.
7 The Council brought a cross-claim seeking indemnity and contribution against the State and the RTA. The RTA brought a cross-claim seeking contribution and indemnity from the Council. The State brought a cross-claim against the Council seeking indemnity and contribution from the Council. Each of the cross-defendants respectively denied liability under the respective cross claims.
8 Part way through the hearing the plaintiff consented to judgment in favour of the R.T.A. It was agreed by both that each party pay its own costs. Subsequently it was agreed that the second and fourth cross-claims be dismissed it being agreed that each party to those cross-claims would pay their own costs.
9 Judgment was entered in the plaintiff’s action against the R.T.A in favour of the R.T.A. I dismissed the second and fourth cross-claims.
The Facts
10 The plaintiff who lives with his fiance at Wingham in the Hunter Valley was born on 23 August 1973 in Muswellbrook and is now aged twenty six. He was, on 15 December 1990, seventeen years and three months old, living in Aberdeen with his parents and sister, being some ten kilometres out of Muswellbrook in the direction of Scone.
11 The plaintiff had left Scone High School at the end of 1989, having completed Year 10 and obtaining a School Certificate at the age of sixteen. The plaintiff then carried out labouring and casual work at different times for a meatworks, a supermarket and as a farm hand but was, at the time of the sustaining of the injury, then unemployed. He was to commence an apprenticeship as a painter/decorator in early 1991. This was prevented by the injuries from the accident.
12 The plaintiff was at the time of the accident in good health other than a injury to his right ankle from a motor cycle accident which he had fully recovered. The plaintiff is now, and was in December 1990, six foot three inches tall.
13 On 15 December 1990, a bridge known as the Wilkinson Avenue Bridge in Muswellbrook, was an access bridge over a gully known as Muscle Creek. On that night there was not much water under the bridge which was its normal state, except at flood time. The creek is only a few feet wide.
14 The Wilkinson Avenue Bridge serves an area comprising the bowling club, the swimming pool, the football oval called Olympic Park, a velodrome, the tennis courts and boys scouts and girl guides area, this whole area being recreational, there are no residences. There is another possible access to the park area near the bridge through Fitzgerald Park but at night time people avoid the other access because it was too dark and not possible to see clearly as well as being unsafe. In 1990 and prior to that there was street lighting on either side of the bridge.
15 Prior to the accident alcohol generally was served at football matches at the oval and at other functions held in the Olympic Park. The football oval had been used for night matches as well as training. The velodrome was used by young people riding bikes in the area, who would also ride over the bridge. It was conceded by all defendants in the hearing that the Bridge was the primary access to the general recreation area.
16 On Friday nights for some time prior to and in December 1990 there were social gatherings, attended particularly by young people, at the Muswellbrook RSL Club some short distance into the recreation area from the Wilkinson Street Bridge. These gatherings where bands would play would be attended by more than three hundred young people. Alcohol was consumed at these gatherings both inside and outside of the Club. At night time for some the informal arrangement was that people over eighteen would purchase the drinks and bring them out to those outside both under and over the legal drinking age. Some under age would enter the club premises.
17 At night time at the RSL Club, on a Friday night, people would use the Bridge as a place to congregate, talk and wait for people. The plaintiff had used the Bridge almost every week shortly beforehand.
18 The bands would normally stop at about 2.00 am, and alcohol service would stop at about 2.30 am, the Club closing at about 3.00 am. For some half an hour after closing usually up to about fifty young people would congregate on and in the vicinity of the Bridge.
19 A few hundred metres from the Wilkinson Street Bridge, a twenty four hour taxi service operated for Muswellbrook to service the immediate vicinity of that town, where on Friday nights young people would congregate around 3.00 am looking for food, taxis or other activities.
20 The plaintiff had on the night of Friday, 14 December 1990, being the end of the school year, joined many friends who had left school in 1990, even though he had left the year before. The plaintiff, in evidence in chief, said that during the afternoon he had been drinking Jim Beam, a bourbon, and Jack Daniels, a rye whisky, usually mixed with soft drinks but sometimes he drank Jim Beam straight. He said he also drank beer and types of port.
21 By the time the Club closed at 3.00 am the plaintiff said he felt very good that “I felt like I had had a fair few but I was very willing for more. I felt like I hadn’t had my quota.” He said he was able to control himself and walk normally. He had had a cheese sandwich for dinner.
22 In cross-examination the plaintiff conceded that he had been drinking much more than he had said in his evidence in chief. He was not paying for any drinks. Everyone else was providing him with drinks because he had no money. His evidence at p. 40 of the transcript was:23 At p. 41 of the transcript the plaintiff gave the following evidence:
“Q. Do you say you were feeling well stewed at that stage ?
A. No I wasn’t feeling - -
Q. You think you could be mistaken about the way that you were gauging the effect of alcohol at that point ?
A. Yes.
Q. If I suggest to you at that stage of the night you were well affected by alcohol, would you agree with me ?
A. Yes.”
24 At p. 43 of the transcript the plaintiff’s evidence was:
“Q. Would you agree with this proposition that you may well be mistaken about whether or not you had consumed beer whilst you were at the bowling club ?
A. Its quite possible, yes.
Q. Did you consume anything other than beet and one or possibly two or three cans of Jim Beam at the bowling club ?
Sorry we are finished with the statement, you might hand that back to me, I am not asking you in relation to the statement ?
A. It is very, quite possible I could have had anything to drink because they sell alcohol but to my knowledge to answer your question, yes it is possible.”
25 The plaintiff’s evidence in cross-examination at p. 47 was:
“Q. I suggest that whilst speaking to ambulance officer Rockly you told him “I have drunk one beer and three Moselles.” Would you agree with that ?
A. It is quite possible but I don’t remember exactly what I had said to any of them under the bridge.
Q. That would be in part because you were well affected by alcohol at the time you were under the bridge, weren’t you ?
A. Yes.
Q. Is your memory now refreshed as to the consumption of Moselle in addition to the beer and the cans of Jim Beam ?
A. I don’t remember drinking Moselle but that’s not to say I did but I don’t remember.
Q. I take it during the hours that you were at the bowling club or in the area of the bowling club did you continue to drink ?
A. Yes.
Q. That would have been fairly constantly wouldn’t it ?
A. I could imagine so, yes.
Q. You were, to use the vernacular pretty much on a roll at that stage, weren’t you ?
A. Yes.
Q. The alcohol you were consuming was alcohol which was provided to you by anyone of a number of people ?
A. Yes
Q. I suggest that amongst that alcohol there was involved glasses of Moselle ?
A. I don’t like wine for a start so, but it is quite possible that I don’t remember drinking wine.
Q. It would have been quite an understatement that you had consumed by way of alcoholic beverages to have told ambulance officer Rockly that you have consumed one beer and three Moselles, wouldn’t it ?
A. Yes.”
26 The plaintiff said that he had been endeavouring to get himself “blotto” At p.66D the plaintiff was asked and answered as follows:
“Q. Would you accept that that was a fair description of your activities between about 2pm and beyond 2am on 15 December through until the early hours of the morning at the close of the bowling club that you were on a drinking binge ?
A. Yes.
Q. I want to suggest to you that having been on a drinking binge for
a period between about 2pm and beyond 2am the following morning that your judgment was impaired at the time that you were on the Muscle Creek Bridge. Do you agree with that ?
A. Yes.”
“Q. And you were, were you not, by the time this accident occurred, either blotto or as close to blotto as could be, isn’t that right ?
A. Yes, I was very intoxicated,”
27 The other witnesses who gave evidence on behalf of the plaintiff Mr Reick and Mr Kenney both indicated that the plaintiff had been drinking over the period covered by the plaintiff’s evidence. The ambulance officers and the policeman who attended were however able, after the fall, to communicate quite readily with the plaintiff. He was not so affected as to have lost coherent speech. He was quite lucid and clear in communication after the fall, considering his injuries.
28 On the whole of the evidence set out above and in the hearing including the evidence of Darlene Cole called by the Council, I find that the plaintiff was heavily affected by alcohol at the time of his fall from the bridge and his capacity to control his physical actions would have been significantly impaired.
The Fall
29 The plaintiff had been sitting on the footpath of the Bridge with his feet in the gutter on the left hand side, looking from the Club direction. He had been talking to an acquaintance, Anthony Newton. He felt as though he was going to vomit. He stood up and moved fairly quickly across the road surface, as he went to vomit he attempted to grab the railing but went over to the railing and fell from the Bridge with his hands raised above his head crossed over with his wrists protecting the top of his head. The surface upon which the plaintiff landed head first was dirt and grass.
30 There were about ten or fifteen people standing or walking on the Bridge at the time of the plaintiff’s fall. Two friends of his were standing either side of him as he fell over the bridge railing. The plaintiff’s evidence in chief was that he was sitting with his feet on the roadway on the bridge, that he had moved across the road quickly and that as he approached the side of the bridge he had put a foot on a concrete step, that step being on top of the footpath on the side of the bridge adjoining the railing. He said he would not have stood on the concrete step if there had been a warning sign.
31 The evidence of the plaintiff’s friends on the bridge was that he had moved quickly across the bridge saying that he was going to vomit and that he had moved at a jogging pace and in one continuous movement reached the railing and proceeded over the railing, his friends standing by the railing remembers seeing the soles of his feet as he fell from the bridge.
32 The plaintiff in cross-examination at p. 59 of the transcript was asked and answered the following questions:33 At p. 62 the plaintiff was asked and answered the following:
“Q. May I take it that what you knew before the night of the accident was that if you stood next to a railing which was a barrier between where you were standing and where you might otherwise fall to you would need to exercise some care in leaning against that barrier, is that right ?
A. Personally I didn’t think of nothing but, you know, to be sick. I wasn’t thinking of safety or anything like that.
Q. I am not asking about the night of the accident, I am asking about previously. I am asking you about your conscious appreciation about the matters before the night of the accident do you understand ?
A. Yes.
…..
Q. You knew, did you not, before the accident that when you were
standing next to barriers like that you needed to be careful if you lent on the barrier to make sure you did not overbalance and fall ?
A. Yes.
Q. At six foot three and aged just over seventeen years may I take it that you were amongst the tallest of your friends and acquaintances?
A. Yes, I was amongst the tallest, yes.
Q. May I take it that a matter that you had a conscious appreciation of before the accident was that you were physically quite tall ?
A. Yes.
Q. And that being physically quite tall it was easier for you to overbalance if you lent improperly against the barrier ?
A. Yes.
….
Q. And you knew you were a tall individual and therefore someone more likely than others of shorter to fall by overbalancing ?
A. Yes.”
34 The plaintiff’s evidence in further cross-examination is that he put his left foot up on the concrete step adjoining the railing. He was asked by Mr Simpkins at p. 63:
“Q. Were you moving quickly for feeling that you needed to get to the barrier to be sick over it rather than on to the roadway ?
A. I was moving quick, yes, to get to the barrier.”
35 At p. 64 the plaintiff said:
“Q. Are you able to give any reason for why you have a particular recollection of placing your feet on the kerb or the pedestal ?
A. When I broke my neck, it changed my life, the whole night.
Q. I don’t doubt you have a recollection of the fall but can you tell His Honour any reason you have for remembering in particular that you put your feet on the kerb or the pedestal ?
A. No, I don’t remember why I remembered that. Is that what you are asking ? I don’t have any specific reason why I would remember those things.”
36 Further at p. 66B the plaintiff said:
Q. What do you say you were doing with your hands ?
A. Securing myself so as to speak. Like reaching for the rails or grabbing the rails.
Q. Is this right, that what you did, and tell me if this description is inaccurate, was to position your hands over the railing with your palms on the top of the railing ?
A. That is what I had planned to do but whether I had actually grabbed the railing or if I had missed the railing I can’t comment, I don’t know.
Q. Doing the best that you now can you cannot recall whether your hands endeavoured to grip the railing or not ?
A. Whether they went to, is that what you are asking or did they ?
Q. Doing the best that you now can to remember what happened you cannot say whether you went to grip the railing or not ?
A. I can remember trying to grab the railing, the top rails as I was stepping up.
Q. What part of it did you try to grip ?
A. The top part.
Q. How did you try and do that ?
A. I don’t know. With my hands like that, whether that is the exact position or not I don’t know but I went to grab the rail like any other able handed person would.
Q. As I understand from what you were saying earlier that although you went to grip the rail you cannot now recall whether your hands came in contact with the rail before you started to fall ?
A. Yes, I can’t.”
37 From the plaintiff’s evidence and the evidence of the witnesses and examination of the photographic evidence and the court’s view of the site itself, I am unable on the onus the plaintiff must establish to find that the plaintiff in fact put his foot on the step in his progress towards the railing. He did not remember the event specifically in his original statement although I accept the plaintiff is endeavouring to give the best of his recollection, it appears to me that there has been a degree of reconstruction in the plaintiff’s mind in respect of his foot going on the step before he fell over the railing. I do accept the evidence that he moved quickly across the roadway and that there was a degree of momentum in that movement. The fact of the step existing on the railing edge of the footpath adjoining the railing would mean that it would be necessary for him even if leant over the railing to in fact extend his centre of gravity forwards in order to lean over the railing with his feet on the footpath.
“Q. What other things do you say you can recall doing physically in the vicinity of the right hand railing immediately before your fall and beyond those two matters ?
A. I remember talking to people, I remember the lights, I remember the bridge the way it was, I remember, you know, having a chat with a friend that I hadn’t seen in a few years. I remember lots of things. It’s not like I only remember stepping on to the rail and grabbing the rail. I remember going from one side to the other and I also remember falling.
Q. I am just asking you about when you got to the right railing and you have told His Honour you can remember getting up on to the step or pedestal and you can remember at least reaching for the rail. Beyond those two matters of physical conduct by you in the vicinity of the right railing can you recall anything else ?
A. No.”
38 The plaintiff suffered multiple fractures of ulna and radius in both wrists and a fracture dislocation of the C5/C6 vertebral area of his neck. Shortly afterwards the ambulance officers arrived. At that time he thought that he could feel his arms and legs but he could not feel the ambulance officers touching his body. He was taken by helicopter to Muswellbrook Hospital and then to Royal North Shore Hospital then spent three months at Ryde Rehabilitation Unit. He is a quadriplegic as a result of the injuries.
The injuries
The Engineering Evidence
39 A considerable amount of the time of the trial was taken with the evidence of various experts as to the construction and safety dimensions of the bridge, the first which was Mr Colin Simpson who is a consulting mechanical and industrial engineer who has expertise in engineering ergonomics and provides forensic services as to the relationship between human beings and the structures that surround them. Mr Simpson described the step adjoining the railing as six inches or 150 mm square which if a person stands on it effectively reduces the height of the railing in that it forms a natural step and the remaining height of the railway would be 910 mm or three feet. His evidence was that, in the light of the risk involved, the height of the railing that a human being would subconsciously step on to the step and that it is a foreseeable risk of someone overbalancing if a person should lean on it.
40 His evidence was that a practical means of solving the risk problem is to increase the height of the top rail by adding an additional rail to the top of the existing railing in the form of a cylindrical pipe suspended on some form of fixture. The most common form of such railing, being about 2 inches in diameter is a very inexpensive and commonly used, that the base of such railing should be about six inches above the existing railing, making an elevation of eight inches overall to the height of the railing.
41 The evidence in Mr Simpson’s report of 10 December 1993 was that the width of the existing railing with the exception of the additional metal triangle which has subsequently been erected on it does not address the problem that the top of the handrail is, because of its five inch width and two and a half inch depth extremely difficult to grasp. The end result of the erection of the proposed railing would be to elevate the height of the railing on the footbridge and to provide a safe means for holding the railing. His estimate was that this could be done for a few hundred dollars, a fairly unlikely sum. I will refer to this cost later.
42 Mr Simpson’s evidence was that if there was of the order of thirty thousand crossings without injury that one in thirty thousand was a very small proportion of the total risk. The evidence of Mr Simpson was that if the plaintiff had run at the railing in the manner described and that he went over it in a continuous motion that a height of 1065 mm or about 42 inches, that being the necessary standard would not be adequate to contain him. The height of 1065 mm exceeded the necessary National Australian Association of Roads Standard. Mr Simpson said that it would be a combination of the height of the railing and the plaintiff’s actions which caused his toppling over.
43 In cross-examination, the evidence of Mr Simpson at p.191 was in the following terms:
Q. The step of the pedestal has a height of 150 millimetres approximately ?
A. Yes.
Q. You say on top of that there should be a balustrade which has an approximate height of about 1100 millimetres ?
A. Yes.
Q. So the combined height of step on the one hand and the balustrade itself on the other hand would be about 1250 millimetres?
A. Yes.
Q. If someone was standing on this subject bridge designed in the way that you have suggested would be appropriate, if they had an a centre of gravity which was at or below 1250 millimetres, the railing would protect them?
A. Largely, yes.
Q. If they had centre of gravity which was above 1250 millimetres, there would continue to be a risk of overbalancing which has not been removed by the height of the railing ?
A. Yes”
44 The evidence of Mr Simpson also was that the risk involved from a fall creates a greater need for the increase in height of a railing. His evidence was that if there was an eighty foot drop as against a six foot drop the risk is much greater and a railing would be higher such as in a bridge crossing a railway crossing where there would be a greater calamity from a fall. His evidence was that the magnitude of the risk is a factor as well as frequency or probability.
45 The thrust of Mr Simpson’s evidence, which I accept with the exception of his estimate on cost, is that all of the relevant circumstances in the construction of the railing must be examined taking into account the risk, the potential damage for someone falling over that, but that the risk should take accommodate the risks to the large proportion and that the likely consequences such as a fall on to a railway line or a rolling stop is of a different magnitude than from a road bridge. His evidence was that the NAASRA Standards used by the Department of Main Roads prescribed minimum heights and did not prescribe standards which governed every circumstance of every bridge.
46 The plaintiff then called Mr Alan Brown, a civil structural and accident investigation engineer, whose several reports were admitted and who gave oral evidence. He was the son of the Muswellbrook Shire engineer and had lived in Muswellbrook in the 1940’s.
47 The evidence of Mr Brown at p. 215-216 of the transcript was in the following terms:
“Q. Is there any difference between the expression “minimum height” and the concept of “preferred height” or “desired height” ?
A. Yes
Q. Can you just explain to His Honour ?
A. Firstly, taking a minimum dimension, it is a suggestion to the designer that one has to evaluate what the real requirement is in a particular case. But it is giving guidance that it should be not less than that particular dimension or requirement as set out. When the guidelines suggested desirable height, it is more, it is indicating in normal circumstances that it is a better design criteria than a minimum. However, it is up to the designer to properly consider all of the factors for the particular case to come up with the desired height.
Q. What kind of factors in a case of a bridge ?
A. Well, the risks or hazards that may arise from the use of the particular bridge in certain ways but, in this case by pedestrians. The likely effects of somebody, say, falling over the railing in this particular case would be a factor to be taken into account, whether the drop over the railing was large or very small; on what surface one would likely fall on to below the bridge. They are the basic parameters.
Q. What are the factors in relation to the location of the bridge, or the degree of pedestrian use of the bridge, or the type of user ?
A. Certainly the expected quantity of pedestrian movements would be a factor to be considered. If the bridge was remote from an urban area, for arguments sake, and pedestrian activity was expected to be very low or unlikely, one would not need to take special consideration of a higher than minimum railing.
Q. And what if the relevant bridge was located between establishments that served intoxicating liquor ?
A. One would expect pedestrians moving on the bridge in that case could be intoxicated to various levels and their actions need to be protected.
Q. The NAASRA highway bridge design specification is referred to in your report ?
A. It is.
Q. Do the NAASRA specifications, in terms of minimum heights of bridge railings, have any binding legal force ?
A. I am not aware of any in this state.
Q. The NAASRA document in 1970 refers to only minimum heights, it does not refer to either “desired height” or “preferred heights”; is that so ?
A. That is so.”
48 I accept this evidence of Mr Brown as I do of Mr Simpson that in face the standard set by the NAASRA publications do not prescribe for all bridges in all circumstances. Obviously railings on road bridges have multiple purposes, the predominant one to prevent motor vehicles, motor cycles and cycles from going off the bridge whatever the height of the bridge may be, as well as questions of visibility from motor vehicles and pedestrian safety all impact on the utility of the bridge rail and the shape of the railing itself for pedestrian use. Mr Brown’s evidence was that an appropriate height is 1.2 metres which comes from the Building Code of Australia being the standard minimum drop hazard applicable for public entertainment areas where alcohol is consumed.
49 Mr Brown’s evidence was that erecting a tube railing in the nature of that described by Mr Simpson would be in the some of thousands of dollars, but a suggestion of twenty thousand dollars he found ridiculous.
50 The first defendant called Mr Norman Cotton a seventy-nine year old former engineer employed by the Council in 1967 until his retirement in 1983. His evidence was that the Wilkinson Street bridge were funded and constructed by the Public Works Department of NSW, receiving funding through the Commonwealth Aids Roads Act. He saw it as his role to ensure that the plans and specifications provided by the Public Works Department were complied with and it was he that supervised the construction to ensure that materials and workmanship were as specified.
51 His evidence was that he did not provide any specification for the bridge himself, but certified compliance with the Department’s plans. His evidence at p.272 of the transcript:
“Q. You have told the Court about the plans which you say were prepared by the Public Works Department and you have indicated you did not consider, or did you not play any part in the preparation of those plans, is that right ?
A. That is correct.
Q. But you saw those plans when they became available to council, is that right ?
A. I did see them then.
Q. I take it that upon receipt you considered the plans ?
A. Oh yes.
Q. And that you considered the height of the railings specified in those plans ?
A. I cannot recall ever considering them in detail but I was perfectly happy with the overall design of the bridge after it was provided to council by the experts.”
52 His further evidence was that it was necessary to consider the height of the railings during the design and construction of the bridge in relation to pedestrians and his evidence was that because of the height of some ten metres above the creek that it was necessary to contain pedestrians because of the very serious risk of injury.
53 His evidence was that at the time of construction of the bridge in 1970 there were recreation fields in place, a football field, a cycle track, the velodrome, and that he expected there to be young children and that the bowling club was already in place and that it was not uncommon at the time for people to consume alcohol in and around the bowling club.
54 At p. 275 Mr Cotton said in answer to a question from me:55 He further said:
“A. For all works for which council was responsible, yes. I was in sole charge of council’s engineering works and I was in charge of all aspects of it.”
“Q. So you exercised the council’s responsibility as to safety matters in respect of all council works ?
A. Council works, yes.
Q. As engineer did you have a responsibility on behalf of the council to look at safety issues generally as to works which required carrying out, not just those that had been planned and needed to be supervised ?
A. I don’t think I had any responsibility at all for works other than council works.”
56 Mr Ward for the Council then called Hillary Max Irvine, a consulting engineer from Unisearch at the University of NSW who was the emeritus professor of civil engineering. Mr Irvine’s evidence was that the minimum height prescribed in the NAASRA document was appropriate. It appeared to me that he treated the minimum requirement as though it were a prescription for what was appropriate for the bridge, irrespective of the fact that the NAASRA requirement covered all such bridges in all circumstances. His evidence was that the hand rail proposed by Mr Simpson would cost in the order of ten thousand dollars to rebuild the handrail and to replace the railing completely. With the appropriate scaffolding construction he considered likely to be of the order of one hundred thousand dollars.
57 At p. 326 of the transcript his evidence was:58 And at p. 327, he further said:
“Q. I am just showing you at page 1 of the 1970 NAASRA specification and under heading “1.1 Design Analysis”, this is part of a chapter “General Features of Design”, the first sentence is “The design of highway bridges shall in general conform to the provisions of the specification”?
A. Yes
Q. The use of the expression “in general” indicates, does it not, that the NAASRA document doesn’t set out to specify in every circumstance precisely what shall be the design of a given bridge, do you agree with that ?
A. Yes.
Q. And do you agree that gives latitude to the designing engineer in terms of the structural features of the design of the bridge, provided that he is recognising that or paying regard to the recommendation made in his document ?
A. Yes.”
59 His evidence was that in 1992 a document was published under the successor to NAASRA, namely Austroads, describing a preferred height of railing as well as a minimum height. At p. 329 his evidence was:
“Q. Do you also agree that such an engineer faced with this design role and needing to protect pedestrian safety, will recognise that because a minimum is provided that only says it shan’t be less than the amount, do you agree with that ?
A. Yes.
Q. Do you agree that it’s obvious that when the expression minimum is used that it preserves to the engineer designing the bridge the role of determining what provides a proper margin of safety in terms of the railings for the protection of persons on the foot of the bridge ?
A. Yes.
Q. And do you agree that the NAASRA document is silent as to what is a preferred or recommended height of railing for the protection of pedestrian safety, that is so, isn’t it ?
A. In this particular version, the 1970 ?
Q. Yes ?
A. I believe so. I haven’t found a reference to preferred height.”
60 He further said at p. 340:
“Q. Do you agree that bridges that are designed are intended to cover a wide range of situations in terms of the length of bridge, the depth of water or other objects underneath the bridge; in other words it could be a very short bridge over a small drop or it could be a very large bridge over a very large drop ?
A. Yes, there are many variables.
Q. And the standard specification however is one which is expressed to cover the full range of bridges from the largest one down to the tiniest bridge, correct ?
A. Yes”
61 On behalf of the third defendant a consulting engineer, Alan Fozzard was called. His evidence was that a proposed adjustment to the handrail could be carried out for about twelve hundred dollars. Mr Fozzard’s evidence at p. 350 in relation to the cost of the bridge was in the following terms:
“Q. in short, it is a , that is the 1992 document, is a forward-looking set of specifications, that is, looking at future constructive work to be done, whether it be totally new work or fresh construction work done to existing structures ?
A. Yes. There is a bit of a grey area in there. the answer to the first part of your question is, of course, yes. The second question, it depends a great deal on the nature of modifications and the adequacy and I am talking now in a structural sense, I don’t wish it to be inferred I am talking about handrails. There are many reasons why bridges get ungraded, widened and so on, as traffic volume increases.
Q. In any event, the 1992 Austroads document did not purport to be a code concerning desirable safety levels of existing bridges. That is so, isn’t it ?
A. Yes.
Q. It was merely a guide for those who were going to do work in the future rather than giving advice to those who already had structures in place ?
A. I think that is right. Codes are dynamic things, they evolve.”
62 Mr Fozzard’s evidence was that there were factors in 1965 that had to be taken into account such as a view from a motor vehicle. His evidence at p. 360-361 was in the following terms:
“Q. Would you regard $12,000 for an extra eight inches of height on that railing as being a reasonable expenditure to make for the purposes of providing a higher safety level of the railing ?
A. Any level of expenditure is worth spending if it provides extra safety.”
63 I consider Mr Fozzard’s opinion that a bridge builder should, in effect have kept to the minimum requirements not to be sound. I accept his evidence as to the need to correct the railing and the likely costs.
“Q. Did the word minimum as expressed in the NAASRA specifications prior to 1970 mean maximum ?
A. No. They probably meant the figure, unless there are other engineering requirements that may require you to go higher or aesthetic viewing requirements.
Q. What about protection of pedestrians ? Would that be an extra consideration warranting taking the height of the bridge railing in 1970 above that minimum ?
A. Not in 1970, no.
Q. Why do you say aesthetic considerations would be a justification, yet safety considerations would not ?
A. I was following his Honour’s comment about the aesthetics of viewing. That could require the handrails to be higher.
Q. Do you agree that where that minimum is expressed in the 1970 NAASRA specifications, latitude is still preserved to the engineer to do what is reasonably necessary to competently and responsibly complete the job of design ?
A. Yes, correct.
Q. And do you agree that the NAASRA specifications only provide general guidance as to how the bridge shall be designed ?
A. It is prescriptive. It tells you what to do.
Q. Do you agree that under the NAASRA publications the requirement is that the design of highway bridges shall in general conform to the provisions of the specifications ?
A. My experience when being appointed by clients in that period was that they asked part of the commission that it comply with all the requirements. Therefore it was intrinsic and implicit that we comply with those requirements not go to less than the minimums.
Q. Do you agree that the specification itself in the first sentence says the design of highway bridges shall in general conform to the provisions of the specifications. Do you agree with that ?
A. That’s fine.
Q. Doesn’t that indicate to you that that leaves latitude to the bridge designer to do what is reasonably necessary in terms of providing a proper level of safety for bridge railings if in fact he thinks that the minimum isn’t enough ?
A. If he thought the minimum was not enough he can do, make it whatever choices he can.
Q. Would you recommend that the bridge that is this particular bridge be altered in any way so as to at least provide a level of safety equal to that which will be required had that bridge been constructed under the 1992 Austroads bridge design code ?
A. Could you say that again ?
Q. Would you consider it would be reasonable to alter the bridge railings now so that they provide a level of safety equal what they would provide had they been constructed in accordance with the 1992 Austroads bridge design code ?
A. Sir, I am designing a bridge now, or am I fixing the handrail up ?
Q. Fixing ?
A. the handrail should be rebuilt and the consequence of that might well mean that other things are affected as well.”
Duty of Care
64 Counsel for the Council submitted that being a highway authority, the Council is immune from any acts of nonfeasance and only liable for acts of misfeasance citing Buckle v Bayswater Road Board (1936) 57 CLR 259 and Romeo v Conservation Commission of the Northern Territory (1988) 151 ALR 263 in support of his contention.
65 Counsel for the Council further submitted that even if the first defendant, as a public authority, did owe the plaintiff a general duty of care there was no breach by the first defendant of any relevant statutory duty to persons of the class of which the plaintiff was a member using the Wilkinson Avenue bridge. I reject this submission.
66 The duty of a public authority to safeguard the public against foreseeable risks of injury has been clearly stated by the High Court in numerous cases, commencing with Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479. That duty extends to each occupier personally to a range of people, whether those people are affected by alcohol or not: see State Rail Authority v O’Keefe (NSW Court of Appeal, unreported 16 March 1995).
67 In Romeo that duty was defined by Brennan CJ at p.214 in the following way:
“The duty is to exercise reasonable care to prevent injury from dangers arising from the structure or condition of the premises which are not apparent and are not to be avoided by the exercise of reasonable care on the part of the entrant.”
Qualifying this proposition the Chief Justice continued, as follows:
“There is no warrant for extending the statutory duty to the taking of steps to protect particular entrants from the consequences of their failure to take reasonable care to protect themselves. The duty being owed to entrants as a class, “reasonable care” must be assessed by reference to the nature of the premises, the extent of their use by entrants and any particular characteristics of the class who enter .” (emphasis added)
68 I accept the submission of the plaintiff that the Council had a duty to exercise such care as would reasonably protect a person in the circumstances of the plaintiff from reasonably foreseeable consequences of his condition including that by inadvertence or inattention he might expose himself to a risk of injury. He was one of several hundred young people that regularly used that bridge in varying degrees of alcoholic consumption.
69 It seems to me also that although the Council took the view at the time of the construction of the bridge through its engineer that its role was merely to ensure compliance with the plans and specifications that both the constructing authority and the Council knew or must be deemed to have known the activities that were carried on in the recreation areas carried on by the bridge and that this would lead to use of the bridge by pedestrians and indeed motorists who had consumed alcohol.
70 The passage cited by Council for the plaintiff in Wyong v Shirt 146 CLR 40 by Mason J as he then was expressed the test for ascertaining for whether breach of duty has occurred:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
71 It is clearly foreseeable that the users of the bridge might lean over the railings of the bridge for a number of purposes such as to be sick over the side of the bridge rather than on the actual bridge itself. One cannot reasonably assert that this would not be a foreseeable action given the position of the bridge in relation to the facilities in the area which serve alcohol as well as the increased vehicular and pedestrian use of the bridge from when it was first constructed.
72 Counsel for the Council submitted that the Council had acted reasonably and is not negligent in light of the fact that when the bridge was designed and constructed in about 1970, it conformed to the relevant NAASRA Guidelines then in circulation and further that since there had been no evidence of any prior accident occurring, the Council was not on notice of any person having suffered any injury though the use of the bridge, and therefore not required to maintain or upgrade the bridge.
73 However, it is largely irrelevant whether or not the bridge was designed and constructed in accordance with the relevant NAASRA Guidelines, since as the High Court said in Mercer v Commissioner for Road Transport and Tramways (1936) 56 CLR 580 per Latham CJ at 589;74 That proposition was reaffirmed by the Court of Appeal in Podmore v Aquatours Pty Ltd (1984) NSWLR 111 holding at p.116:
“The mere fact that a defendant follows common practice does not necessarily show that he is not negligent, though the general practice of prudent men is an important evidentiary fact. A common practice may be shown by evidence to be itself negligent.
“a finding of want of due care can properly be made even though the defendant has obeyed all statutory requirements and followed a common or universal practice.”
75 It is quite clear that the Council had a duty of care to pedestrian users of the bridge, and that that duty was not extinguished by the fact that they had followed the relevant guidelines even if those guidelines were mandatory, not just prescribing minimum requirements. The Council by their own admission and on the evidence were not only responsible for the management and control of the bridge, but also in part for the construction of the bridge. The Council cannot rely on the protection of the nonfeasance rule when it clearly acts as both a highway authority and public authority simultaneously.
76 Further, the obligation to upgrade the standard of the bridge to meet a change in circumstances involving increased use of the bridge was clearly placed on the Council. Among the various duties of the Council existed a general responsibility as occupier to protect the safety of pedestrians on the footpath which was adjacent to the road surface.
77 The Council through its law enforcement officers and servants would be aware of the activities going on around the bowling club in particular. It is clear from the evidence called by the Council that circumstances except for perhaps the late night closing of the club have not significantly altered in that alcohol has been consumed by young and not so young people in and around the bridge from before the time of its construction. The increased consumption of alcohol, into the early hours of the morning in the recent years has increased the risk somewhat in terms of numbers and increased usage but the risk was present at the time the bridge was constructed.
78 In the construction of the bridge, the State was clearly aware of the use to which the bridge was to be put. It was an access bridge to a recreation area. The State owed a duty of care as did the Council.
Breach of Duty
79 The events that happened as I have found namely, that the plaintiff was intoxicated on the bridge, the plaintiff is tall and well above the average height but not inordinately so, the use of the bridge as a meeting place for young people has occurred over a protracted period of time. Many of these young people would normally have consumed more alcohol than is reasonable or sensible, but it is a fact that it has repeatedly happened. I do not consider that it is established that the plaintiff put his foot on the step near the railing before falling over but I find that he did rush fairly quickly towards the railing and that notwithstanding his height, and in his alcoholic state with the involuntary compulsion to vomit, that in fact what occurred was not a remote possibility. In my view the defendants ought to have considered that the type of action was reasonably foreseeable and taken steps to alleviate the damage which existed.
80 I am satisfied on the evidence before me for the expenditure of a sum between ten thousand dollars and twenty thousand dollars an appropriate railing could have been added to the bridge which would not have interfered with its function. The problem with the existing railing was that it did not permit a convenient grip which is a significant part of any hand railing. It has not been suggested by anyone that the proposed two inch rail set six inches above the existing railing was not a safe measure. The cost of constructing the additional railing could not be unreasonably high considering the short length of the bridge.
81 It is also my view that the erection of warning notices was a reasonable measure that the Council and indeed the constructing authority might have taken to warn people not to lean over the railing. Whether the plaintiff said he would have complied with a warning of this type or not, such warnings have as a matter of practice had some cogent effect on reducing risk of injury in most circumstances. I find that both the State as constructor of the bridge and the Council as the authority responsible for the construction, care and management of the bridge were in breach of the duty they owed to the plaintiff in failing to erect a proper hand railing at an appropriate height and to erect notices which even if the plaintiff had not seen them on the night he would inevitably have seen them on other occasions.
82 I find that the Council and the State are thus guilty of negligence as alleged by the plaintiff.
83 I do not consider that the State had an ongoing obligation in respect of every construction made in its capacity as the Department of Public Works or in any of its previous capacity. The State normally contributes to publications such as the original NAASRA document as well as the subsequent publication which makes this known to all responsible authorities of changes in community standards. Societies change as do practices in relation to building and bridge construction, such as the changes that have now occurred whereby people throw objects off bridges to vehicles moving below. This circumstance would not have been contemplated some years ago.
84 I have however found that at the time of construction of the bridge the state was in fact responsible in part for the breach of duty to the plaintiff but I do not consider the plaintiff has established an ongoing duty to the plaintiff after the bridge has been constructed and handed over to the controlling authority.
Contributory Negligence
85 Counsel for the Council further submitted that the plaintiff’s injury was caused solely by his failure to take reasonable care to protect himself; that it was the plaintiff’s actions which led him to becoming well intoxicated, attempting to lean over the railing to vomit, and the manner in which he approached the railing which led to him falling from the bridge. It is submitted that these acts amount to a failure on the part of the plaintiff to take reasonable care for his protection.
86 Contributory negligence, is established when the plaintiff’s conduct demonstrates a complete failure to meet the standard of care to which s/he is required to conform for his/her own safety and that failure, in conjunction with the negligence of the defendant constitutes a material contributing cause of the plaintiff’s injury. A plaintiff clearly has an obligation to take care of his own safety. Where the conduct of a plaintiff shows a failure to take reasonable care for his or her own safety and that failure together with the negligence of the defendant was a cause of the plaintiff’s injury, contributory negligence is established. The issue is causation.
87 Counsel for the plaintiff submitted that contributory negligence cannot be established because the plaintiff’s action of being sick over the railing was an involuntary action and that it was more than reasonable for the plaintiff to be sick over the railing rather than on the bridge itself where people were congregating. It was submitted that the plaintiff being sick over the railing was a perfectly natural action that the plaintiff was entitled to assume, whether drunk or not, that the railing was of such a height as to offer him reasonable protection from over-balancing. If was further contended that the only question of contribution that does arise, as submitted by the plaintiff is whether or not the plaintiff’s earlier consumption of alcohol constitutes a want of care for his own safety.
88 In SRA v O’Keefe (unreported, NSW Court of Appeal, 29 November 1994), the Court reversed the finding of the trial judge and held that a degree of contributory negligence had been established by a plaintiff who had been drinking. In that case the plaintiff who had been intoxicated was attempting to cross a railway crossing when his foot became caught in one of the rails. Justice Kirby, in delivering the judgment of the Court held as follows at p. 7;
“Clearly, a sober alert pedestrian has a much lower risk of falling, and a greater chance of avoiding harm from the defects in the pedestrian crossing as found in this case. A heavily intoxicated person, particularly one who is “drunk”, is more likely to fall, and, meeting an impediment, is less likely to prevent serious damage occurring.”
89 Persons who are tall or particularly tall learn to live in a different environment from people of average height or shorter people. It is patently obvious that some child or adult who is four foot six inches in height does not have to be concerned about a three foot high railing, it doesn’t constitute a safety hazard. That person may be concerned about a one foot six inch railing. A tall person therefore as a matter of general living has to take into account that safety measures for the average person do not constitute the same level of safety for a tall person.
90 The plaintiff therefore, in choosing to cause himself to be intoxicated significantly increased his risk of injury from falling or by misjudgment or misadventure. His action in rushing towards a railing whether he is drunk or sober, whatever its perceived height is something which is partly involuntary but partly a conscious action of wanting to vomit with less consequences arising and in making that choice to rush towards a railing on the otherside of which is a precipitate fall he chose an action which was fraught with danger.
91 The plaintiff, on his own evidence, clearly admitted that he had had too much to drink. He was aware of the amount that he had drunk and how such an amount could affect his behaviour. The plaintiff was also conscious of his height and was familiar with the bridge railing. On each of these counts the plaintiff failed to take reasonable care to protect himself from harm.
92 Notwithstanding the breach of duty that I have found on the part of the Council and the State in the construction of the bridge, I consider that the plaintiff has contributed to the terrible injuries which he has sustained by his actions and I consider in the circumstances of the case that the extent of that contribution is twenty five percent.
Contribution between the defendants
93 As has been shown from the evidence above the Council engineer, notwithstanding that he considered his duty was only to ensure compliance with the plans and specifications of the Department of Public Works was well aware of the circumstances of the bridge, and would have knowledge of its use, which knowledge would far exceed that of the Department of Public Works officers.
94 Notwithstanding such greater knowledge, at the time of construction of the bridge, the State was aware that it was constructing a bridge for access to a recreation area which would involve alcohol consumption and use of that bridge by pedestrians. It cannot just therefore allege that it is the Council which is wholly responsible. The Council however has had the ongoing supervision of the area and would obviously be aware of the changes in circumstances as to usage and the increasing danger of the late closing of the bowling club and the large numbers of young people thereby propelled into the area of the bridge.
95 It is clear that a Council which is being presented with a bridge is in effect paid for without the Council expenditure funds is for that contribution might have some reluctance to look to use the idiom, “a gift horse in the mouth” and demand changes. It is clear that the Council engineer did not even contemplate that it was appropriate to consider such a matter. It is still, on the other hand, not open to the State to just say, as it were, “herewith bridge” and thereby escape responsibility. In considering the question of indemnity of the Council by the State it is my view that the overwhelming responsibility for the ongoing safety of persons using the bridge including an obligation to add an appropriate railing and warning sign, if not already constructed, falls on the Council.
96 The fact however that a State instrumentality such as the Department of Public Works builds a bridge that complies with a known minimum standard carries with it some imprimateur of authority and the Council engineer could quite reasonably believe that the State has satisfied itself as to the requirements of safety and the law. That is not to excuse the Council but is a factor which I consider should be taken into account in assessing proportions of responsibility as between the two joint tortfeasors.
97 The Council, obviously, if it considered, after the bridge was installed that a higher and more functional handrail were needed and that notices were needed the Council would have to design, construct and pay for this out of its own funds. There would be some degree of inertial forces operating on the Council having received a brand new state constructed bridge in place of what, on the evidence was an access bridge in very much need of reconstruction.
98 I consider therefore that although the State owed a duty of care to the plaintiff as did the Council that the proportion of its fault as between the joint feasors is very much less.
99 I consider therefore that the proportions that each of the joint tortfeasors can seek indemnity from the other is that the Council is five sixth responsible and the State one sixth responsible.100 In summary therefore I make the following findings: -
Findings and Orders
1. That the first and third defendants breached the duty of care which each owed to the plaintiff.2. That the plaintiff in the causation of the injuries and damages that he has sustained contributed to the negligence of the first and third defendants as to twenty five percent.
3. That the first and third defendants are entitled to seek indemnity from the other in the proportions of one sixth by the first from the third defendant and five sixths by the third defendant from the first defendant.
4. That costs be reserved.5. That, as requested by the parties, damages be reserved.
6. That the parties have liberty to apply as to these orders or any matter unresolved between the parties.
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