Pledge v RTA & Ors.doc; Ryan v Pledge

[2003] HCATrans 335

[2003] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S122 and S123 of 2003

B e t w e e n -

JACK PLEDGE

Appellant

and

ROADS AND TRAFFIC AUTHORITY

First Respondent

BLUE MOUNTAINS CITY COUNCIL

Second Respondent

NADIA CATHERINE RYAN by her Tutor HEATHER RYAN

Third Respondent

Office of the Registry
  Sydney  Nos S124 and S125 of 2003

B e t w e e n -

NADIA CATHERINE RYAN by her Tutor HEATHER RYAN

Appellant

and

JACK PLEDGE

First Respondent

BLUE MOUNTAINS CITY COUNCIL

Second Respondent

ROADS AND TRAFFIC AUTHORITY

Third Respondent

McHUGH ACJ
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 SEPTEMBER 2003, AT 10.02 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.M. MORRIS, for the appellant in S122 and S123 of 2003 and the first respondent in the other two matters, that is the driver, Mr Pledge.  (instructed by Abbott Tout)

MR A.S. MORRISON, SC:   May it please the Court, I appear with my learned friend, MR S.E. TORRINGTON, for the appellant, Nadia Ryan, who is also the third respondent in the other appeal.  (instructed by Stacks the Law Firm with Tom Goudkamp)

MR D.L. DAVIES, SC:   If it please the Court, I appear with my learned friend, MR S. WOODS, for the Roads and Traffic Authority in both appeals.  (instructed by Crown Solicitor for New South Wales)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR G.J. GEMMELL, for the Blue Mountains City Council in each matter.  (instructed by McCabe Terrill)

McHUGH ACJ:   Mr Jackson, as the Chief Justice indicated on the special leave day, one day only has been allotted for that.  We have to finish it within the day.

MR JACKSON:   Your Honour, I am conscious of that.

McHUGH ACJ:     Have counsel come to some agreement as to how the time will be spent?

MR JACKSON:   Your Honour, we have come to an agreement as to the order of events and we are conscious of the time.  We have not attempted to separate out the times in any detail, but we are conscious of it.  Your Honour, could I say two things.  First of all, as to the order of events, we have discussed it amongst ourselves and subject to the Court, of course, the order we would propose is that I go first, then Mr Morrison for the plaintiff, if I can call her that, Mr Davies for the Roads and Traffic Authority and Mr Hislop for the Council.  So far as our appeal is concerned, we seek leave to amend the notices of appeal to the form set out in volume 7 at pages 1343 and 1346.

McHUGH ACJ:   Yes.  Is there any objection to that?

MR  DAVIES:   No, your Honour.

McHUGH ACJ:   Leave is granted.

MR JACKSON:   My learned friend, Mr Davies, has an application for an order in terms of paragraph 1 of the notice of contention.  We do not oppose that.

McHUGH ACJ:   Yes.  Leave is granted.

MR JACKSON:   Your Honours, could I come immediately then to the argument and may I just say something, initially, about the structure of the matters to indicate what essentially they involve.  As the Court is aware, the plaintiff was hit by a vehicle, our vehicle, on a side road at Blaxland on the afternoon of 9 July 1994.  She was nine and a half.  She was seriously injured, including brain damage.  She sued three defendants, ourself, the driver, the Roads and Traffic Authority and the Blue Mountains City Council.

At the trial she recovered against all three but for different damages.  Could I take your Honours for a moment to volume 6 at page 1260.  Your Honours will see in orders 2 and 3 the differences in amount.  That is because of the provisions of the Motor Accidents Act which limited the amount of damages for which we were liable but not so in respect of the other defendants.

As amongst the defendants, we were held 50 per cent to blame – that is not the subject of any appeal by us and was not.  Each of the present respondents was held 25 per cent to blame.  The trial judge, perhaps a little surprisingly in view of her age, found her contributively negligent to the extent of 10 per cent.  Your Honours will see that, if I could go for a moment to page 1251 in volume 6, in paragraphs 48 and 49.  Could I invite your Honours to note in passing that one of the features which led the judge to the view that she should have taken greater care was, as he put it in paragraph 49, the fourth line, “the trees and shrubs, the density of the foliage”, and that is but one of many references in the reasons of the trial judge to trees, shrubs, foliage, vegetation and so on.

Your Honours, the reference in the particular instance at paragraph 49 could only have been in circumstances where he was intending to convey that the foliage – and your Honours will see the words “density of the foliage” - affected vision or visibility.  The theme which one sees more than once in our learned friend’s written submissions that there was no finding that vegetation affected visibility has difficulty standing consistently with findings of that kind.  In our submissions in reply in paragraph 11, your Honours will see extracted from various paragraphs of the primary judge’s reasons references which he made to the foliage and the effect of the foliage.  They are not all the references but they seem to be the most important ones.  We will come back to some of those a little later.

Your Honours, the apportionment amongst the defendants I referred to earlier, the other defendants appealed and succeeded on appeal and we were thus liable for the extent of the damages in toto at the lower level, of course, of damages.

KIRBY J:   This is the interesting question that arises, as to how you apportion where there is one that is capped and others that are not.  I just do not quite understand.  You ask that that issue be sent back to the Court of Appeal, is that correct?

MR JACKSON:   I think we all do, your Honour, yes.  It is a type of renvoi in a way, but we do not ask this Court to decide that.

KIRBY J:   And would you just explain how that arises?  If you lose the appeal, that does not arise?

MR JACKSON:   It does not arise.

KIRBY J:   But if you succeed in the appeal, that issue must be sent back to the Court of Appeal?

MR JACKSON:   Yes.

KIRBY J:   I see.

MR JACKSON:   Your Honours, if I can just say this.  We had to pay all the judgment, at the lower level of course, hence our appeal to the Court; but the judgment is for the lower sum, hence the plaintiff’s appeal to the Court.

Could I come then to the basic circumstances.  Your Honours will see those set out in summary in our written submissions in paragraphs 5 to 21.  I will not go through the detail of that but we refer to various matters there.  Could I say that the configuration of the highway and service road can be seen from part of exhibit N, which appears in volume 3 at page 616.  Immediately to the left of the caption block in the bottom right‑hand corner, your Honours will see the various directions.  Although this is the Great Western Highway, as your Honours will have seen in a number of references, this part of the road is approximately north‑south and variously described in the reasons and in the evidence.  If one goes to the north, one gets to Katoomba; if one goes to the south, one gets to Sydney.  So left Sydney, right Katoomba, as it were.  Your Honours will see also the location of the highway itself and then the service road immediately – I am looking at the bottom of the diagram, your Honours.  One sees also on the south of the service road and in the left part of the diagram Kidman Street coming in.

McHUGH ACJ:   Is that Kidman Street that is depicted at page 634 in the book, or is that Coughlan? 

MR JACKSON:   I am just not sure of that.  May I check that.  That is Coughlan, we think, your Honour. 

McHUGH ACJ:   That is Coughlan, yes. 

MR JACKSON:   Coughlan is the other side of – your Honours will see Coughlan the other side of the highway, and if I could just hold this up for a moment, there is a school not shown but on the corner of Coughlan Road and the highway, in effect.  Now, your Honours will see a pedestrian crossing across the highway, a little to the Sydney side of Coughlan Road, that debouched, as it were, onto the service road, but there was no pedestrian crossing on the service road.  It just came to a halt at the service road. 

Where the plaintiff and her father and sister were crossing was, in effect, if one crossed over the edge of the median strip on the northern end just before Coughlan Road and crossed into the median strip across the southbound part of the highway, and then almost immediately across from them across the service road was the hardware store. 

Your Honours will have seen reference in the reasons to their coming across the service road on a well‑worn track.  That well‑worn track can be seen in a photograph which is exhibit C1 in the same volume at page 636.  This is a photograph taken on the afternoon of the accident.  Your Honours will see the highway in the background and also the well‑worn track, where the arrow on the left of the document is showing you. 

Your Honours, if I could just pause for a moment.  The view of an approaching driver travelling north along the service road can be seen from two photographs immediately following C1.  You will see C2 at page 637 and the police officer wearing the yellow reflective jacket is standing just at the end, on the edge of the nature strip, as it is called.  Your Honours, if one goes to C3, he has moved a little into the nature strip and it is almost impossible to see him.  Your Honours can see a little of the yellow which seems to be perhaps the corner of his shoulder.

Your Honours, could we refer in that regard to our reply submissions, paragraph 11(c), and we make the submissions which we there set out following the text of paragraph 26.  Could we say also, your Honours, that the fact that the foliage obscured the view was not something that first emerged at the trial.  The plaintiff’s father had volunteered it much earlier on two occasions.  I come for the moment just to the second, which was a few days after the accident, 11 days I think.  Your Honours will see in volume 3 at page 665, this was a statement which he gave to the police.  His evidence was that it was his own work, the words that were used were his and there was not any suggestion of suggestions being made to him about it, about its content.  Your Honours will see paragraph 6 of it on page 666.

KIRBY J:   Could you just help me on this?  There is quite a lot of factual detail to try to absorb quickly and I just am not entirely clear of the structure of your argument concerning the several responsibilities of the RTA and of the Council.  As I understand it, the RTA planted the trees in the first place but the maintenance of them and the trimming of them was the responsibility of the Council.

MR JACKSON:   The Council did that work, your Honour, and did that work in fact before and afterwards, but what we would say is that the RTA remained responsible.  It was its responsibility.

KIRBY J:   And I am not clear in my mind about the relevance, if any, of the angle parking and whose responsibility that was, so is the case essentially that there was negligence in the planting and maintenance of the foliage and in the parking arrangements or anything else, or are they the two things we have to focus on?

MR JACKSON:   May I say this, your Honour, first of all, as to the planting and maintenance, both of the respondents, in our submission, were negligent in that regard.  The second feature was something that pertained to the Council only as it were – I use the expression “as it were” for a reason I will come to in just a moment – and that was in relation to permitting there to be the parking at 90 degree angles or designing the parking at a 90 degree angle in front of the hardware store which meant that when vehicles emerged from it backwards there was a possibility of conflict with other vehicles.

A third feature, your Honour – and it is not absolutely clear in a sense whether the primary judge treated this as a separate head of negligence or simply as more likely, one would think, indicating a step which might have been taken to alleviate the problem – was not having a sign which said to people that they should drive more slowly in the area.

KIRBY J:   Signs seem to have gone a little out of fashion in the recent decisions.  I am thinking of Woods and other cases.  This is all a thing that is happening in one second, one second.

MR JACKSON:   Well, your Honour, it is a situation which was dynamic.  I used the expression before “as it were”.  The reason for that slight qualification was that the plants were not growing in the abstract, as it were.  They were growing in a situation where there were people crossing and where there were vehicles coming out of the attraction of the hardware store.

CALLINAN J:   Mr Jackson, if I look at 616 volume 3, where is the angle parking?

MR JACKSON:   It is not shown on this diagram, your Honour.  I will show your Honour in just a moment if I may, but this is a diagram prior to that parking existing.

CALLINAN J:   Mr Jackson, there was an almost continuous chain‑wire fence bisecting the nature strip.  Is that right, or am I wrong?

MR JACKSON:   No, your Honour.  There was no fence bisecting the nature strip.  All that there was was on the highway side of it.  There were poles.

CALLINAN J:   I think they have put poles where there were gaps.

MR JACKSON:   Yes.

CALLINAN J:   Mr Jackson, there is a photograph which shows you the chain‑wire fence.  It is actually at 634.

MR JACKSON:   That was removed, I think, your Honour.  It was part of the highway redevelopment.

CALLINAN J:   So that it was not there at the relevant time?

MR JACKSON:   No.  Your Honours, exhibit C1 at page 636 in volume 3 shows what the position was at the time of the accident in terms of the nature strip.  That is all there was, the post and rail fence.

HAYNE J:   At some point could you give me a reference in the papers to evidence about the significance of the two painted arrows.

MR JACKSON:   Yes, your Honour.  To put it shortly, the painted arrow on the left was regarded as the one which was close to the part of the nature strip she had crossed.  The one on the right seems to have indicated where a piece of debris was found and I think, your Honour, found actually in the nature strip, a piece from the light of the car.

HEYDON J:   What is the red cross in that photograph at the extreme left?

MR JACKSON:   Mr Ryan put that on to indicate more or less where he thought he had stopped.

McHUGH ACJ:   His daughter was on the other side of him, on his left‑hand side?

MR JACKSON:   Yes.  In relation to your Honour Justice Callinan, page 681 of volume 3 is a diagram from the report of Mr Richmond.  That shows schematically, as it were, the position of the car park.  Could I say one thing, your Honours, looking at that diagram on page 681.  You will see that around the car park there is a footpath.  The northern side of the footpath was almost directly opposite the well‑trodden track across the nature strip.

McHUGH ACJ:   You see that fairly clearly from the photographs at 648, 649.

MR JACKSON:   Yes, but it was a curious thing in the sense that that is where the footpath stopped, so that one walked onto the arm of the U, as it were.

CALLINAN J:   Mr Jackson, is it in the car park where the angle parking ‑ ‑ ‑

MR JACKSON:   Your Honour, the 90 degree parking?

CALLINAN J:   Yes.

MR JACKSON:   Yes, that is where it was, your Honour.

McHUGH ACJ:   You see it in the photo at 649.  You see the actual angle parking.

CALLINAN J:   And that was in addition to the service road?

MR JACKSON:   Yes, they backed from that onto the service road.  Your Honours, could I go to the course which was adopted by the primary judge and I will endeavour to do so as briefly as I can because what I seek to demonstrate in relation to it is that the part on which our learned friends rely and the part on which the Court of Appeal seems to have relied is a finding which the primary judge made at paragraph 25 of his reasons.  That seems to be the basis for them saying that the accident was, in effect, all relevantly our fault.

Your Honours, if I could go to volume 6 at page 1240, his Honour having set out the circumstances and some of the evidence – he did that up to paragraph 22 of his reasons and then, your Honours, he proceeded to deal with the cases against the defendants one by one, as it were.  He dealt first with the position of the driver.  That commences at paragraph 23 and he arrived at the conclusion in paragraph 24.

Now, your Honours will see in relation to the conclusion at which he arrived that he was speaking of the whole situation, as it were.  He said he was satisfied that he “was travelling close to 60 kph”.  That speed:

was excessive in the circumstances, having regard to the narrowness of the road and the limited vision on account of the trees and shrubs on the nature strip which was liable to obscure the –

view -

of persons there –

that is on the nature strip -

who might be heading in the direction of the hardware store.

He referred also, in the same paragraph, to not “keeping a proper look‑out” in those circumstances.  Your Honours, from there, he went to paragraph 25 and in paragraph 25, having spoken of in paragraph 24 “speed” and not “keeping a proper look‑out” he then said in paragraph 25 that those two features were a cause of the accident.  If I could refer your Honours particularly to the last sentence in paragraph 25 on page 1242 your Honours will see the way in which he said it.  He said:

the first defendant was negligent and his negligence was a cause of the plaintiff’s injuries.

If I could just pause there for a moment, that is the paragraph which is, in effect, seized upon by the respondents.  Your Honours, we would seek to say this, in every case where there are concurrent or successive tortfeasors the question has to be asked whether the allegedly negligent conduct was a cause of the injury.  If it was not the fact that the conduct was negligent, even reckless, is irrelevant.  The language used by Justice Dunford in paragraph 25 makes it apparent, in our submission, that he was not there deciding that the driver’s conduct was the only cause.  If one looks at the first sentence of the next paragraph, paragraph 26 that seems, with respect, pretty obvious.

McHUGH ACJ:   There is a sentence, I think, that helps you that you went over rather quickly, Mr Jackson, and that is that at the bottom of 1240 over to 1241, where his Honour said:

although there was some obstruction from the foliage, there was also some view of pedestrians on the nature strip and the first defendant should have seen the plaintiff.  Exhibit C2 shows a policeman standing at the position of the left hand arrow –

If you go to 637 you see how limited that vision is.

MR JACKSON:   Well, that is so, your Honour. 

McHUGH ACJ:   And that is what his Honour obviously means. 

MR JACKSON:   Your Honours will see that at 637 in C2, the police officer is right on the edge, and he only has to go back a little, reflective vest and all at page 638, to be almost invisible. 

Your Honours, it is clear, with respect, of course, that causes may be concurrent or successive.  That was referred to by Chief Justice Mason, with whom Justices Toohey and Gaudron agreed, in March v Stramare 171 CLR 506 in the passage which is at page 512, commencing relevantly in the last paragraph. In the second sentence his Honour said:

These days courts readily recognize that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers. 

Then your Honours will see the quotation which goes on through the next page from Grant v Sun Shipping Co Ltd, and in particular one sees the last sentence of that quotation: 

“There is abundant authority for the proposition that the mere fact that a subsequent act of negligence has been the immediate cause of disaster does not exonerate the original offender.” 

McHUGH ACJ:   Well, March v Stramare itself was a case of successive acts of negligence.  You had a truck parked there, and then the driver. 

MR JACKSON:   Your Honour, if one takes any case of negligent design or maintenance of a road or any of the areas where people drive, the probability is that the negligence is not going to manifest itself on the very first occasion.  People will see, with varying degrees of acuity in a sense, the existence of the danger and avoid it, but one day the negligent design is likely to manifest itself and when it manifests itself and if it manifests itself as a cause, then that is the point at which the liability arises.  The fact that the negligent act results in a situation which is static for a large part of the time does not mean that when it manifests itself it loses its causative force. 

Your Honours, I said a moment ago that the course that was being taken by the primary judge, namely, to move from defendant to defendant ‑ ‑ ‑

KIRBY J:   Can I just ask you to help me on this.  What is the principle by which you cut off anterior causes, given that everything, theoretically, philosophers tell us, is interrelated and a stone cast on one side of the Pacific ultimately sends its ripples to the other?  What does the law say for distinguishing causative elements, apart from what Justice Gummow said in the special leave was the mantra of common sense?  Is that all there is? 

MR JACKSON:   In the end, probably, your Honour, yes.  Issues of this kind do involve the Court drawing lines.  The difference between causa sine qua non and causans is one of drawing a line one way or the other ‑ drawing a line and things falling one side or the other.  But most often it is possible to identify what the position is. 

If one looks at the position of foliage, foliage is not something that stays the same forever.  Its nature is that it grows and with most plants, unless something is done to them, they keep on growing.  So that in a case like this, it is not really necessary to draw the ultimate distinction.  The same if one is talking about the parking in the area, or arrangements for the parking, because that is something which will continue to be utilised.  If you have an area that is under the de facto control at least of the council in two respects, then there is both the growth and the parking area, then the position, in our submission, is that that is not something that is in the past, it is something that is in the continuing present. 

HAYNE J:   The answer made against you seems to perhaps reduce to the proposition that the driver could have avoided this by driving according to the conditions.  What answer is there to that proposition?

MR JACKSON:   Well, your Honour, if that had not been the case, then he would not have been found negligent.  What we would say is two things.  The first is that the conditions included circumstances where not only his visibility of children had been reduced at the speed at which he was travelling, so too was the visibility of him.  Your Honours, that was brought about not just by the question of speed or him not keeping a proper lookout.  What happened was that the child who ran out on the road was in a situation where, as her father said, the vision of vehicles was obscured.  Now, it is no doubt right to say, because we would not otherwise have been negligent, that if we had been keeping a proper lookout, if we had not been travelling quite so quickly, then we would have been able to avoid her.  But the circumstances in which we were driving at a speed within the limit at least were ones that were brought about by the negligence of other parties as well.

McHUGH ACJ:   But is that really the right way to look at it?  Is not the proper way to look at it first of all to identify what the negligence of the Road Traffic Authority and Council is and then determine whether, despite that negligence, the accident would still have occurred?  In other words, the first question you ask is:  would a reasonable traffic authority have foreseen that allowing the shrubbery to grow out to the extent that it did would give rise to a risk of injury caused by a driver not seeing a pedestrian in time?  If the answer to that is yes, then the Traffic Authority is negligent.  The next question is:  even if they had not been negligent in the sense that the shrubbery had not gone further than it should have gone, would the accident still have occurred?  Unless you can say that, then the Traffic Authority’s negligence remains causally connected to the accident.

MR JACKSON:   Your Honour, that is so.  That is really what the primary judge did.  We had to start somewhere.  The obvious place to start, in a sense, was with the person whose vehicle hit the little girl.  But having done that, your Honours will see that at page 1243, paragraphs 30, 31 and 32, he referred to the foreseeability of persons using the area, and your Honours will see that in paragraph 32 he refers again to foreseeability.

He said in paragraph 33 then, that certainly because of the headlight glare there had to be some form of screening and then went on to deal with the extent to which there should be screening.  He said he was satisfied that the vegetation did not meet the standards that were necessary to allow proper vision.

Your Honours will see then if one goes to paragraph 38 at page 1246 that he speaks of a situation to which your Honour was adverting I think:

the vegetation planted where it was and allowed to grow as thick as it did in an area where it was foreseeable that pedestrians would cross, significantly restricted the vision of the first defendant, particularly in circumstances where his attention was distracted by the traffic movements associated with the parking bay -

and so on in that paragraph.  Then if one goes to paragraph 40 he is dealing with the parking, but what your Honours will see commencing at about line 44 on page 1247, he said:

This created a potential hazard for drivers proceeding north on the service road when a vehicle was backing out of the bay in that it distracted them from other matters requiring their attention directly ahead, particularly the possibility of pedestrians moving off the nature strip to cross the road, which I am satisfied is exactly what happened to the first defendant in this case.

In other words, that, for example, in the case of the parking we were distracted by the configuration of the parking area and what happened in consequence of it.

HEYDON J:   Does that mean there should not have been any parking provided at that point at all?

MR JACKSON:   No, it does not, your Honour, I am going to come to the parking a little later but could I just say this.  What it means is that there was evidence that this was a very small street in which to have parking of that kind.  There was evidence too that demonstrated that parking could go from parallel to the kerb through to 90 degrees at various angles; 30, 45, and so on, and of course the greater the angle getting up to 90 degrees the more interference there is as one backs out, and the evidence was that 90 degrees was too much in the area because it necessarily created conflict and that lesser was appropriate.

McHUGH ACJ:   Mr Jackson, what you have to face up to is the finding of Justice Ipp at 1284 in paragraph 65 because he says that even if the vegetation had been cut down and there had been in effect no negligence on the part of the authorities, the accident would still have happened because Mr Pledge would not have seen her even then.

MR JACKSON:   Your Honour, I am going to come that, I will in due course.  Could I just say first of all about it though, when one speaks of clearing the vegetation by one metre, that is not what the judge found at all.  What the judge said was that there was a standard which said you should be at least – the words eluded me - the pole of the tree, in effect, at least a metre away.  But there was evidence that that was a standard suggestion but it depends on the particular circumstance and the evidence accepted was that it is all right to have the standard but one has to look at the particular circumstances and what you have to have is a situation where pedestrians can see vehicles, vehicles see pedestrians.  So that the starting point, in our submission, is one that is quite right.

It is really quite wrong in circumstances where the primary judge had directly accepted the oral evidence of the girl’s father that his vision was obscured by the bushes.

McHUGH ACJ:   That does not really answer the way the Court of Appeal dealt with the matter, does it?  They concentrated on your client and they said, in effect, even if there had been no vegetation there at all, this accident would still happen.  That is the effect of it.

MR JACKSON:   Your Honour, may I come back to that in a moment?

McHUGH ACJ:   Yes.

MR JACKSON:   I should just say one thing.  Though one sees in the reason that he was looking to the right and looking straight ahead and not looking to the left, but that is, with respect, a rather arbitrary division of what he was doing because if one goes, for example, to exhibit D which is in volume 3 and looks at page 653, this is not a very wide road.  It was seven point something metres, about 23 feet.  Your Honours will see that if one drives along one is inevitably looking straight ahead.  When one is speaking of the right, you can see the station wagon that has come out of that parking area and one is looking to the left.  It is very difficult to divide up vision in quite that way.  If I could just go over to page 654, your Honours will see how far on to the other side of the road the station wagon comes in turning out of the car park.

Your Honours, I was dealing with the approach taken by the primary judge.  May I come back to that for just a moment?  I took your Honours to paragraph 25.  Your Honours will see that in paragraph 26 at page 1242 he said specifically in the last few lines:

as already noted this foliage had a tendency to restrict the view by a driver on the service road of pedestrians on the nature strip and vice versa.

Your Honours, in paragraphs 27 to 29 he refers to the case made against the respondents.  At paragraphs 30 to 32 – I have taken your Honours to already – he decides foreseeability and then at paragraph 33 on page 1244 he arrives at the conclusion at the top of page 1245, line 10:

I am satisfied that the vegetation on the nature strip in this area did not meet these standards; it was too dense, and too close to the kerb, at times actually extending beyond the kerb onto the carriageway itself.

Your Honours will also see at the bottom of page 1244 that in arriving at that conclusion he refers to the expert evidence of Mr Richmond and Mr Winning in that regard.

KIRBY J:   A point was raised in the special leave hearing concerning the significance of the foliage, not just for your client but also for the pedestrians, and apparently that was not a point that was run in the trial court, but it may be an answer to the point Justice McHugh has just raised that Mr Pledge might have continued going but the pedestrians might have, if there were no foliage, seen him and held back.

MR JACKSON:   Your Honour, could I say two things, that at the trial, as your Honour will see from paragraph 26 at page 1242, the judge referred to the fact in the last few lines that the foliage restricted the vision “by a driver . . . of pedestrians . . . and vice versa”.  That is the first thing.  The second thing was that your Honours will have seen that there was a finding of contributory negligence against the plaintiff for not taking enough care in circumstances where there was this foliage, but there was a liability held to exist, as necessarily of course, between her and the respondents in relation to causation of the accident so far as she is concerned.  Perhaps because we are going first, in a sense, because one is speaking of, in a sense, from the position of the driver, one tends to leave that out of account, but it is a liability to her that ultimately is involved in the proceedings.

Could I refer your Honours to the judge’s discussion of the evidence on the point at paragraphs 34 to 36 on pages 1245 and 1246.  Could I say that in paragraph 35 at the top of 1246, his Honour referred to guidelines as specifying:

1 metre clearance from the kerb to the trunk of the shrub, they also make clear that the foliage must not restrict sight distances between road users.

Now, your Honours, the reference to “1 metre clearance” was, in effect, seized on in the Court of Appeal but if one goes to the guidelines – I will show your Honours where those are in just a moment – they are no more than that.  The later set, the 1987 set, are in volume 4 at page 833, and your Honours will see at page 834, the last paragraph in the right column:

In addition to direct tree impacts, numerous vehicle collisions occur as a result of trees obstructing driver sight distance at intersections, and at other points where traffic conflict occurs.

KIRBY J:   Do these have a statutory foundation?

MR JACKSON:   I do not think so, your Honour.  They are guidelines within ‑ your Honour will see at page 832 the guidelines for tree planting and maintenance on urban roads put out by the Traffic Authority.  They do not seem to have any statutory authority, and the purpose is set out at page 830.

Coming to the “1 metre” business a little more exactly, at page 835 you will see in the right column the first new paragraph:

Secondly, there are locations where traffic or pedestrian conflict occurs and unobstructed sight distances are required.

Then your Honours will see in the last paragraph on the page:

To minimise these risks, and to enable drivers to see pedestrians standing close to the road, trees should in general be planted so that the mature trunks – 

of which I was speaking before – 

will be no closer than 1 metre to the road’s edge.

The only other part is page 840 in the right column, paragraph 5:

In general where none of the above safety concerns apply at a site, trees should be planted so that their mature trunks are no closer than 1 metre to the road’s edge, to minimise the risk of scraping by vehicles parking or travelling . . . and to afford basic pedestrian visibility.

HAYNE J:   Do the guidelines distinguish between trees and shrubs in this respect?

MR JACKSON:   They speak of trees and shrubs but your Honours will see, for example, on page 840 in the left column, paragraph 3:

Where traffic or pedestrian conflict occurs . . . trees should be planted to allow drivers adequate sight distance.  These locations should be kept free of trees, shrubs or other sight distance obstructions.

Page 852 and 853 give some examples of sight hazards and so on that can be created.

KIRBY J:   Were the guidelines admitted into evidence through the witness who had been an officer of the RTA, an expert – he was called to give expert evidence.

MR JACKSON:   Yes.  It was part of our case, I think.  I will have to find out an exact answer to that.  It seems to have been tendered by us.  It is a little complicated, I think.

KIRBY J:   You do not contest the utility of shrubs and foliage for the purpose, I assume, of protecting against oncoming traffic lights?  As I understand it, your case is not that there should have been none; it is simply that they should have been kept in conformity with the guidelines such as not to unduly block vision of pedestrians and of drivers?

MR JACKSON:   What the primary judge said in paragraph 33 at page 1244 is, in our submission, perfectly okay, that there has to be:

some form of screening, and vegetation is a generally acceptable -

but it:

should not extend . . . over the kerb –

and it should make sure that people:

are clearly visible to drivers of approaching vehicles ‑ ‑ ‑

HAYNE J:   But the finding was a finding about planting and about maintenance, was it not - both?

MR JACKSON:   Yes, both, your Honour, it was.  Could I go on to say that in paragraph 38 what your Honour was just putting to me appears because at the bottom of page 1346 he said:

As it happened, the vegetation planted where it was and allowed to grow as thick as it did in an area where it was foreseeable that pedestrians would cross –

et cetera.  He arrived at the conclusion, your Honours will see, in paragraph 38 at page 1247.  Your Honours will see at the top of page 1247 that he used the expression that our:

attention was distracted by the traffic movements –

Could we just say two things about that, your Honours.  One I have said already.  The first is that one sees references to the driver looking to the right and not to the left.  That is all relative and, as the exhibit D photograph shows, there is not a lot in it.  The second thing about it is that the distraction in the particular case was taking place directly in front of him.  It was a vehicle coming onto the road where one was coming towards him.  It was directly in front of him.

Your Honours, the primary judge then in paragraphs 39 to 40 dealt with the poor design of the parking area and it seems clear that he accepted the evidence of Mr Wingrove on that issue.  Your Honours will see in the last four lines on page 1247, going to the top of page 1248, that he referred to the nature of the hazard created and its operation in a particular case.

Now, your Honours, finally, at paragraph 41, he said that there was a need for a sign or a notice in all the circumstances to which he refers in the paragraph.  As I submitted earlier, it is perhaps not entirely clear whether that was a separate finding of negligence or simply a suggestion of a possible ameliorative matter, but it did involve again ‑ and I will take your Honours to the passage in a moment – the acceptance of one of the witnesses who gave oral evidence, Mr Wingrove.

HEYDON J:   What was the speed limit on this road?  Was it 60 kilometres an hour?

MR JACKSON:   Sixty, your Honour, the ordinary 60.

HEYDON J:   A sign saying 60 kph would merely tell the driver what he should already know.

MR JACKSON:   No, I am sorry, your Honour, there was no sign.  The speed limit was 60.

HEYDON J:   Yes, but a sign saying the speed limit is 60 would tell the driver what he should already have known.

MR JACKSON:   No, your Honour, what there should have been was this.  Mr Wingrove in his evidence - I will come to it a little later, but he referred to an appropriate sign as being one that you will see in volume 3 at page 587.  It was, your Honours, the third sign down, I think:  “Local traffic only.  Drive slowly”, which he said was normally put up with a sign saying “40 kph” or something of that kind.

Your Honours, perhaps I might deal with that issue immediately because it is a very short one.  The primary judge’s reasons are at paragraph 41.  Mr Wingrove had commented in his report adversely on the absence of traffic management on this road.  You will see that in volume 3 in three passages that I give your Honours.  At page 702, paragraph 14, there under the heading “General Comments”, he said it was:

a section of roadway where there was an extremely high probability of conflicting interaction between a pedestrian and a motor vehicle, be it a passing motor vehicle or a motor vehicle reversing from the 90° angle parking outside the store . . . no pavement markings, no signposting, or any traffic management facility of any type.

Then, your Honours, if I could go over to paragraph 26, speaking about traffic management, at page 705 he said that:

The general motor traffic management on the service road, in the immediate area of the Hardware store, was not of a reasonably high standard.  The service road was not particularly wide and there was a 90° multi car park on the eastern side of the service road.  There was also an un-marked pedestrian crossing . . . and an unconventional foot path –

Then at page 707, in the fourth dot point on that page, under the heading of “Summary of Principal Conclusion and Opinion”, he said:

There were no warning signs, or traffic management facilities, associated with the service road even though there was considerable evidence to indicate that there was a relatively high level of pedestrian/vehicle activity in the immediate area where the collision occurred.

Your Honours, I have not given all the extracts from that, but those seem to be the most important ones.  In his oral evidence, he referred to an appropriate sign; that is in volume 2 at page 290.

At page 290, about line 25, he is being shown exhibit L, which is the document with the signs I took your Honours to a moment ago.  In particular, the page to which he is referred is page 587 in volume 3.  Now, your Honours will see he is referred to that sign:  “LOCAL TRAFFIC ONLY DRIVE SLOWLY”.  He says it is familiar; it has “been in existence prior to 1980”.  The judge gives a short passage of evidence, and then your Honours will see, following that, he agreed that: 

Q.They have certainly become more prolific in the last 10 years. 

A.Yes, along with the speed limit. 

He is then referred, at the bottom of the page, to his report.  At the top of page 291: 

Q.What do you say, if anything, about this particular sign on that page and its usage in this area? 

A.The area in question could be implemented into a local area traffic management plan. 

Q.And have such a sign erected? 

A.Yes. 

Then your Honours will see the next question and answer.  Now, there is no reason at all why the judge could not accept that evidence.  The comment made about it in the Court of Appeal is at paragraphs 68 and 69 of the Court of Appeal’s reasons at pages 1284 and 1285 – the conclusion arrived at seems to be at the bottom of page 1284: 

the finding that the Council was duty bound to have erected a sign of the kind suggested is questionable. 

Well, your Honours, it was a matter on which the judge was perfectly entitled to form a view.  There was evidence to support it.  Then in paragraph 69, the further view is adopted that because we had accepted that we “knew that particular care was required” that a sign would not have had any effect.

KIRBY J:   Which paragraph of the Court of Appeal ‑ ‑ ‑

MR JACKSON:   Paragraph 69, your Honour, top of page 1285: 

A sign would not have told him anything he did not already know. 

Could I just say, in relation to Mr Pledge, he was a man who was ‑ and it seems obvious, when one reads his evidence – considerably affected by the fact that he had run into the little girl.  He was a person who was driving in his van, his own daughter who was 12 was with him, two of her friends were in the van.  The judge accepted his evidence, except that he thought he was travelling a bit faster than he said.  Otherwise, he found him a perfectly acceptable witness.  There is no reason why ‑ ‑ ‑

KIRBY J:   He was not travelling above the speed limit, was he, above 60? 

MR JACKSON:   No. 

KIRBY J:   The difficulty I have with the sign is something along the lines of the things that troubled the Court in Romeo and Woods.  They are not exactly the same, but what effect – I mean, first of all, you have to ask, how many signs do we have to put up?  That is the Romeo question.  Then you have to ask, would the proliferation of signs have any real effect in these circumstances?  In Woods, you will remember, there was the particular peculiarity of the ball, the malleability, which was a hidden danger, in a sense, but even there the Court held that a sign was not needed. 

MR JACKSON:   Your Honour, could I just say that if one looks at what was said by the primary judge, he does not appear to be saying in every circumstance you would need to have this sign up.  What he is saying is because of the combination of the circumstances, which included the fact that the vegetation was not cut back properly, a sign would be a desirable thing.  If you cut the vegetation back, you probably do not need the sign.

HAYNE J:   But do we not need to distinguish between causation and want of reasonable care in this context?  I read the Court of Appeal as being moved by considerations of causation.

MR JACKSON:   Your Honour, there seems no doubt that is the view taken by the Court of Appeal.

HAYNE J:   And that is a view that seems to begin from the premise that the judge’s finding that the two authorities did not do what reasonable authorities ought to have done is accepted and then the Court of Appeal answer the question of causation by reference to counterfactuals.  If things had been different, what would have happened?  At some point, it seems to me, we need to come square against this question of what is the use of the counterfactual, what is the argument that is being employed, when the basic legal question is, was the defendant negligent?  “Yes”, seems to be the premise.  Was that negligence a cause of what happened?  Where in that process do you inject these counterfactuals?  If things had been different, what would have occurred?  Which bits of the sets of circumstance do you adjust?  Why do you choose those rather than others?

MR JACKSON:   What your Honour has alluded to really, in our submission, is a matter of some importance because the way in which one can see the contrast between, on the one hand, in our submission, in a perfectly orthodox way the primary judge looked at the situation on the day.  On a number of occasions he refers to the fact that this was the situation on the day, it was a combination of things that brought about the injury to the child ‑ a combination of negligence on the part of four people, effectively, including herself.

Your Honours, if one starts really from the basic situation that there seemed no doubt, if one takes the contemporaneous version of her father, that the fact of the vegetation, for example, just to take that, was something that did in fact obscure vision.  Your Honours, one does not need to go further, in our submission, than to say if the vegetation were not there, then the inference one would draw is that the vision of each to the other – the impairment is gone. 

Your Honour, that is the extent to which, in our submission, one needs to go with the counterfactuals and it is very difficult in a situation which has the complexity of a number of aspects to say take this block out and you get a different shape on the board.  Undoubtedly you do but, your Honour, one is dealing with ‑ ‑ ‑

HAYNE J:   We are assigning responsibility for what did happen in the circumstances that did exist and that is the key focus for debate.

MR JACKSON:   Your Honour, in our submission, if one looks at the case, the course that the trial judge took was, I use the expression again, absolutely orthodox and there was no reason for the approach taken by the Court of Appeal.

If one goes, for example, to the Court of Appeal’s reasons at paragraph 45 at the top of page 1280, after discussing – and, in our submission, with respect, incorrectly – the effect of the earlier evidence, they then arrive at the view that it is not possible from the evidence to determine exactly when they first would have become visible as he was driving from south to north along the road.

Now, in circumstances like that it is right to say as they say in the first sentence of the next paragraph:

The reasons of Dunford J, however, do throw some light on this issue.

But, your Honours, the light they show is to accept evidence of what people’s perception was at the time.  Your Honours, that is precisely, in our submission, what he was entitled and required to do, and to go on then, as one sees in paragraphs 46 through to 61, and to engage in the mathematical exercise, is to do, in our submission, exactly what the court in Abalos said, and it is the passage we have quoted in our written submissions, in paragraph 22 of our first submissions.  Your Honours will see the quotation from Hontestroom v Sagaporack that:

the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticism of the witnesses and of their own view of the probabilities of the case.”

Now, your Honour, I know that the Court has discussed Abalos on a number of occasions, but having done so, the basic aspect of it is still correct and, your Honours, that is what the Court proceeded to do.  Your Honours, I am sorry, I took myself a little out of where I was going.  May I come back?

KIRBY J:   This was not a case, was it, where there was a clash of testimony?  This was not a case where the driver said one thing and Mr Ryan said another, and therefore the judge had to sort that out.  It was a case where, really, the testimony was not very much in dispute, as I understand it, both as to what happened as the driver approached, to what the pedestrians did, and as to the maintenance of the foliage?

MR JACKSON:   There was a dispute, your Honour, about the point where they had crossed the path, about whether it was ‑ ‑ ‑

KIRBY J:   That is not critical in the assignment of liability?

MR JACKSON:   In the end not, but, your Honours ‑ ‑ ‑

KIRBY J:   It does not seem to me to be an Abalos case.  I mean, given that what was said in Abalos has been clarified somewhat in that important unreported decision in SRA, and in other cases since.  I only say that to provoke you into saying something, Mr Jackson, seeing as you won SRA.

MR JACKSON:   Your Honour, one does not forget occasional droplets like that, but having said that, your Honours, what one sees really, though, is in this case what happened was that you have circumstances where, not just those witnesses, the father and the driver, express views about visibility, there are other witnesses including investigating police officers who said that visibility in this area was no good.

They are all speaking in a context of where the accident happened.  Now, in those circumstances, for the Court of Appeal then to go on to engaged in the mathematical exercise – that is an inadequate description of it – is one which is entirely inappropriate, in our submission, because one is talking fundamentally about how things appeared on the day.

HAYNE J:   It seems to me at least that the mathematical exercise has validity if it is conducted in the single unit of distance rather than in the mixture of units of time and distance which appear to have been employed.

MR JACKSON:   Indeed, your Honour.  If one starts from the proposition - that is in paragraph 45 of the Court of Appeal’s reasons - that you cannot work out exactly where people were, and that is speaking about the car and also the person with whom the collision occurred, is a very insipid starting point, with respect.  Could I go then to the Court of Appeal’s reasons at paragraph 39 at page 1278.  In a passage which goes from paragraph 39 through to paragraph 45, the evidence of four witnesses - and I am referring particularly to paragraph 41 – the police witnesses, Mr Ryan and Mr Pledge - is denigrated, with respect.  Could we just say a couple of things about it, your Honours.  The first is ‑ ‑ ‑

KIRBY J:   I am sorry to interrupt you, Mr Jackson.  Is this on the foliage point now?

MR JACKSON:   Yes, your Honour.  I am still on the ‑ ‑ ‑

KIRBY J:   Right.  Where are you exactly?

MR JACKSON:   I was at page 1278.  Your Honour, I had moved to the Court of Appeal’s reasons and what I am seeking to do is to identify the reasons that they adopted and the errors that there existed.

CALLINAN J:   Mr Jackson, the last sentence in paragraph 39 at page 1279, was there evidence as to where Constable Mills got his information from in fact?

MR JACKSON:   Your Honour, I am not particularly relying on Constable Mills.

CALLINAN J:   No, I know that but I am interested in the point, Mr Jackson.

MR JACKSON:   Your Honour, Constable Mills obtained some information from another policeman at the scene.

CALLINAN J:   Why I am interested in it is:  was any attempt made to contradict Constable Mills at the trial?  That is what I am interested in.  His source does not matter if it was not sought to be controverted.

MR JACKSON:   No.  Your Honour, what seems to have come from the trial - and in a sense, if I can put it this way, if one leaves aside the parts of the transcript that relate to debates about where it took place and so on - one comes to the best part of the evidence being that at one point Constable Mills – not Schneiders, as one might have thought from reading the Court of Appeal’s reasons, but Constable Mills – agreed, yes, that the gap may be “nine metres wide”.  That is really the highest point ‑ ‑ ‑

CALLINAN J:   You may not be able to answer the question at the moment but I am interested in whether there was any attempt to controvert Constable Mills because it seems to me to be important, Mr Jackson.  The Court of Appeal is disparaging his evidence because it questions his source; Justice Ipp questions his source.  If there was not a real issue as to that at the trial, then that is in your favour, I would have thought.

MR JACKSON:   Your Honour, I suppose it is right to say that there was some issue at the trial, but it is difficult to say precisely what the issue was in that regard, because ‑ ‑ ‑

CALLINAN J:   Perhaps your junior can find the passages in the cross‑examination.  Did you call Constable Mills? 

MR JACKSON:   No, the plaintiff, your Honour. 

CALLINAN J:   The plaintiff called him.  Well, we would really want to know whether the Council and the Authority sought to controvert what he said – their cross‑examination of him. 

MR JACKSON:   I was going to say one thing about it, your Honour, and it is this.  I will come back to Mills in just a second, but your Honours will see in paragraph 40 that Constable Schneiders lived in the area and had lived there for years, but he described the visibility as “poor”.  He referred to there being “a slight gap”, and then in paragraph 41 Justice Ipp said:

The “slight gap” . . .  was nine metres wide. 

Well, it was not Schneiders who said it was nine metres wide.  There was no finding as to its length, and where one gets the nine metres from is simply that in volume 1 of the appeal book at page 81, commencing at about line 42, in a passage which goes through to page 82, about line 5, you will see that he said: 

I can’t remember measuring it but yes, it would have been around about that. 

Then at the top of page 82.  I should add, in relation to it, that as to the nine metres, one sees that Mr Winning, who was an expert witness, at page 528 in volume 2 said about that, between lines 30 and 40, that: 

a distance of nine metres cleared space is not a sufficient sight distance to stop a vehicle that’s travelling at anything above 40 kilometres an hour ‑ ‑ ‑

HAYNE J:   Sorry, what page? 

MR JACKSON:   Page 528, your Honour, in volume 2, between lines 30 and 35.  The second thing was ‑ ‑ ‑

KIRBY J:   If he is travelling at about 60 kilometres an hour, what space does he cover in, say, the space of a second? 

HAYNE J:   16 and two‑thirds metres. 

MR JACKSON:   Yes, your Honour.  60 kilometres is 1,000 metres a minute, a kilometre a minute, and one divides that by 60, per second. 

KIRBY J:   It does not give him very much time in which to avoid hitting the child as she comes out. 

MR JACKSON:   No, your Honour.  Your Honours, the second thing I wanted to say about this was that what your Honours will see was that no doubt, once the little girl stepped onto the road, she would be visible.  That was all that Constable Mills had said.  Your Honours will see going back to paragraph 39 he said he formed the opinion that Mr Pledge had no vision of Nadia until she had commenced to walk onto the road and, your Honours, no doubt once she stepped onto the road, she would be visible.  That is really all that he had said.

Now, what your Honour Justice Callinan asked me, I am told that was not challenged.  But, importantly, why should the evidence of the four witnesses referred to in paragraph 41 be in some way plainly wrong?  It was the view expressed by the father at the time.  I took your Honours to exhibit J, the statement of the police 11 days after the accident.  But on the day of the accident, I think at the hospital afterwards, he said the same thing.  That was at volume 4, page 873.  Your Honours will see this is part of an occurrence report.  Could I just say that the two lines on page 873 that are crossed out were not admitted into evidence.  But immediately above that you will see that he said:

He also told Police that he didn’t see the van until it was near them because of the shrubs on the grass footpath.  This was consistent with the version supplied by the driver of vehicle 2 –

the present appellant –

in that the pedestrians were not visible because of the shrubs until he was very near them.

Your Honours, the father’s oral evidence was to that effect.  Could I give your Honours three brief passages all in volume 1.  The first one is page 142, lines 1 to 5, and this passage is the one accepted by the primary judge in paragraph 12 of his reasons, where he said at the top of page 142:

From the corner of my eye I saw something moving, a red object, through some shrubbery.

At page 144, lines 9 through to 49 on the page and in particular the answer on 48 and 49, and page 148 in the passage commencing at about line 5 and going through to page 149, about line 6.  Your Honours will see particularly, about line 45:

Q.  I take it what you are saying there was it was very difficult for pedestrians in your position, yours and your daughter’s position, to see the oncoming traffic?
A.   Yes.

Q. Because of the obstruction to your vision, right?
A. Yes.

Then your Honours will see the next question and answer at the top of that page.  Constable Schneiders in this ‑ ‑ ‑

McHUGH ACJ:   What does this issue go to?  One might have thought that the plaintiff’s case against the RTA and the Council would have been that they should have foreseen that the vegetation gave rise to a risk of injury to pedestrians by reason of pedestrians failing to see drivers or drivers failing to see pedestrians or both, but the case dos not seem to have been pleaded that way.  They seem to have concentrated really on the problems that the driver faced.

MR JACKSON:   Your Honour, I am not certain, with respect, that is so.

McHUGH ACJ:   That seems to be the way in terms of the pleadings, I do not know about whether the case was conducted ‑ ‑ ‑

MR JACKSON:   Your Honour, in relation to the question of pleading, I accept there is a slight degree of obscurity about it, and I will come that in a moment, but may I say, if one looks at two things – I think the passage to which I just referred speak of visibility either way.  So too do the trial judge’s reasons in the passage ‑ ‑ ‑

McHUGH ACJ:   Yes, he referred to “vice versa”.

MR JACKSON:   And vice versa.  If one goes to the pleadings, first of all to the further amended statement of claim, your Honours, at page 10 I think it is of volume 1.

McHUGH ACJ:   What I had in mind really is at page 11, paragraph (c) at the bottom of the page, it is directed to the driver.

MR JACKSON:   Yes, your Honour, of course vision is, in a sense, a two way thing in relevant circumstances and I suppose if one looks at paragraph (d) and (h) and (l), I think the same is repeated in the others.  When it comes to the pleadings as between ourselves, I said that it was perhaps a trifle obscure, but if one goes to page 19, which is the cross‑claim between ourselves and the RTA, your Honours will see in particular paragraph (b):

Plating or allowing to be planted . . . vegetation of such a kind that would block all vision of persons driving vehicles in the direction of the cross‑claimant of pedestrians crossing the said nature strip from the highway to the service road.

Your Honours, that may not win the English prize but at the same time it is perfectly capable of conveying both notions and when one speaks of the ‑ such vegetation is referred to also in the next paragraph, but I suppose if I could just say this.  Your Honours will see from the passages to which I referred in the evidence of Mr Ryan, that he gave evidence about this topic both ways.  The similar situation obtained in relation to the evidence of Constable Schneiders, to which I will come in a just a moment.  The judge certainly dealt with both aspects and in the nature of things one is speaking about relative views.

McHUGH ACJ:   It is an important point because it ‑ ‑ ‑

MR JACKSON:   Contributory negligence ‑ ‑ ‑

McHUGH ACJ:   It is beyond that because it doubles the risk, in effect.  There is the risk that the pedestrian will not see and therefore will do something rash and there is the risk that the driver will not see, or both together.

MR JACKSON:   Yes.  Your Honour, our submission is the evidence dealt with both aspects of it.  You will see if one goes to the evidence of Constable Schneiders at page – I will not go to the large part of it – but simply at page 104 in volume 1, if one commences at about line 20 your Honours will see he was asked:

At that point how did visibility for pedestrians compare in either direction with the visibility at the point shown in the photograph –

Then his Honour said:

Visibility of pedestrians or visibility by pedestrians?  I think you need to clarify –

Then:

Q.  First of all, how does visibility of pedestrians . . . compare with visibility of pedestrians . . . where C1 shows the two arrows . . . 
A.  Well, the visibility of pedestrians certainly is poor.  I would describe it as poor.

Your Honours will see the evidence of Constable Schneiders goes through the remainder of that page.  On page 105 at the top of the page he speaks of the fact that the vegetation had changed since the accident.  Your Honours will see at about lines 10 to 15:

trees . . . extended over the kerb . . . extend right up to the kerb side.

Fundamentally, your Honours, between about line 29 and line 40 he spoke of there being:

a very poor field of vision for the driver . . . the bushes . . . extend to the kerb side and a person or persons standing beside those bushes I believe would not be able to be seen.

That was the broad effect of his evidence.  I had thought he dealt specifically with the position of both but certainly the issue is discussed at page 104.  Returning to the Court of Appeal’s reasons ‑ ‑ ‑

McHUGH ACJ:   He deals with the position of the driver at 105.

MR JACKSON:   Yes, your Honour.  So far as the driver is concerned, there was the strongest evidence really that the bushes were a cause.  Your Honours will see, returning to the Court of Appeal’s reasons in volume 7 in the passage which goes on from paragraph 45 at the top of page 1280, the view is arrived at at paragraph 49, having quoted in paragraph 48, your Honours will recall, what was part of paragraph 25 of the primary judge’s reasons, immediately before he said:

I am satisfied –

he was a cause and then went on in paragraph 26 to deal with the other defendants.  He then said:

This finding was not challenged.  It follows that Mr Pledge’s vision . . . was, for some significant distance, not impeded by the vegetation.  This is consistent with the photographs exhibits C3 and C7.

Now, your Honours, if I could just go to those photographs for a moment.  How one could arrive at that conclusion from C3, which is at page 638 in volume 3, is, with respect, difficult to understand.  It is one thing to have photographs enlarged; it is another thing to have them retouched and have the lesser features of one’s anatomy removed a little, but, your Honours, having said that, if one looks at exhibit C3, the one thing it does show, with the policeman who can hardly be seen, is that the vision was obscured.  If one goes to the other photograph ‑ ‑ ‑

McHUGH ACJ:   The evidence was that they stopped about eighteen inches to two feet from the edge of the nature strip and then Nadia’s hand was released or vice versa, and then she stepped across, and she was hit one metre ‑ ‑ ‑

MR JACKSON:   Yes.

McHUGH ACJ:   So they probably stopped somewhere where the police officer is in C3.

MR JACKSON:   Yes, or maybe a little bit forward of it, maybe a little bit back, but it is a curious thing, your Honour, when one sees in paragraph 45 of the Court of Appeal’s reasons that they cannot determine with any precision or even approximate reliability the point at which she would have become visible, then to go on to finally say in 49 that the finding that the judge had made in paragraph 25 followed, for some significant distance the vision of her was not impeded by the vegetation, and you can get that from C3 and C7.  You might get from C7, your Honours, what is at 642, which is much closer.  The vision once one got to that point might not be impeded, but in terms of what is said in paragraph 49, it is not a significant distance one is talking about.  Your Honours, so in our ‑ ‑ ‑

HAYNE J:   Was there any evidence given about the distances that are depicted in this set of photographs?

MR JACKSON:   In this set, no.  They are taken – obviously, one can see more or less from where they are taken ‑ ‑ ‑

HAYNE J:   Just so.

MR JACKSON:   Yes, but the precise distances your Honour, no.  There was a finding by the primary judge that the pedestrian crossing where it went across the highway was, I think, 50 metres closer to Sydney than the particular point where this happened.  There was evidence from one of the technical witnesses who had measured it – I think it was about 46 metres, but it was of that order.

HAYNE J:   But there is no evidence in particular, taking 642, of how one might usefully estimate the distance depicted between the lens of the camera and the first white arrow?

MR JACKSON:   No, your Honour.  It is dealt with only to the same extent as your Honour is dealing with it with me, in effect, by what is said at paragraph 43 in the Court of Appeal’s reasons, where 50 to 60 metres was suggested for ‑ your Honours will see the suggested distances there.

CALLINAN J:   Mr Jackson, was Constable Schneiders’ conclusion that the vision was poor challenged?  You have told me that Constable Mills was not.  Again, you may need a little time ‑ ‑ ‑

MR JACKSON:   Your Honour, he was cross‑examined, but it does not seem to have taken away from that at all.  If one looks through his evidence, there seems really nothing which challenges, or challenges effectively, what he was saying except that he was asked about there being gaps in the shrubbery and this sort of thing.

CALLINAN J:   Mr Jackson, did the Court of Appeal – I understand the scene had changed by the time of the trial.  Is that right?

MR JACKSON:   Yes, it had.

CALLINAN J:   There were obviously a number of features which remained the same.  Did the Court of Appeal attach any weight to the fact that the trial judge had a view?

MR JACKSON:   They referred to it, your Honour.

CALLINAN J:   I know they referred to it, but did they say anything more about it than that?

MR JACKSON:   Your Honour, not that one can identify.  I do not think it really goes beyond them having referred to the fact the judge had the view.

KIRBY J:   Is there any change in the Evidence Act concerning the use that may be put of a view?  In other words, the traditional view was that it was only to understand the evidence, not as additional evidence of its own.

MR JACKSON:   It had changed, your Honour, and that was referred to by the judge.  It could be used as evidence.  The judge went on the view at the start, I think, of the second day of the case.  It is referred to at page 78 in volume 1 where he describes what took place and then, I think, he referred to it also at the bottom of page 1233 in volume 6 – under section 54 of the Evidence Act the view could constitute evidence.

CALLINAN J:   That is quite an important factor, is it not?

MR JACKSON:   Your Honour, as he said, he noted that he drove along the area himself and ‑ ‑ ‑

CALLINAN J:   And the changes had been pointed out to him ‑ ‑ ‑

MR JACKSON:   Yes, and, your Honour, what one saw at that point was – and it is referred to in some of the photographs – that there had been very significant cutting back in the area and the post remained from the post and rail fence at relevant times but that the rail had gone. 

CALLINAN J:   Just before you leave that, Mr Jackson, you say section 54, is it?

MR JACKSON:   Section 54 of the Evidence Act which says that:

The Court . . . may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.

CALLINAN J:   And it is called an inspection, not a view.  There used to be some distinction made, did there not?

MR JACKSON:   Your Honour, I just do not have it at the moment.  I will give your Honour the reference to where he referred in his judgment to what he drew from that.  Your Honours, could I just come back then to ‑ ‑ ‑

CALLINAN J:   Sorry, Mr Jackson, it seems to me that you might be doing yourself a little bit of a disservice by passing over that so quickly in view of section 54.

MR JACKSON:   What I was going to do was to give your Honour the reference to it and then come back to it.  I am just getting the reference to it.  Your Honours, what I was going to say was that if one goes back to the Court of Appeal’s reasons – I think it was the same paragraph.  At page 1233, volume 6, paragraph 8 your Honours will see that he said:

This view not only enabled a better appreciation of the evidence . . . but itself constituted evidence . . . there was a break in the shrubbery . . . no pedestrian crossing marked –

Your Honours, he had, I thought, referred again to it as confirming his views.  I am sorry, I think there is another reference – may I come back to that, your Honour if necessary, or I will ask my learned friend Mr Morrison to mention it perhaps.  Could I come back then to the Court of Appeal’s reasons in paragraph 52, at page 1281, in volume 7.  Your Honours will see the way in which the court recorded the RTA and the Council’s position as being: 

whether their failure to ensure that there was a cleared area of one metre at the eastern edge of the nature strip contributed to the collision. 

Your Honours will see also that they say in the last sentence: 

His Honour did not deal with the question whether, had the vegetation so been cleared, Mr Pledge would have seen Nadia –

The whole thrust of the primary judge’s decision was that because the vegetation was not cleared, this obscured the view and created the danger that was there on the day.  The judge was dealing with a man who, as I said before, was driving a vehicle with his own daughter in it and two of her friends, and he was very upset.  He was not dealing with people in the abstract, with a witness whom he saw give evidence, and his findings, in our submission, clearly supported the view that if the vegetation had been cut back, the driver and the child would have had a better view of each other.  I have gone to the paragraphs already in the primary judge’s reasons; they are paragraph 40 and 26 particularly. 

Your Honours, if one goes to the calculations on which the court then entered in paragraphs 52 to 65, they leave out of account, in our submission, the fact that first of all, to speak of “left” and “right” in the context is capable of misleading and, secondly ‑ ‑ ‑

McHUGH ACJ:   That rather assumes that the driver’s vision is like a racehorse with a set of blinkers on, that he has six inches of straight‑ahead vision, as opposed to peripheral vision.  Even though one may be looking ahead, one can still see in a vague way something to the left. 

MR JACKSON:   Your Honour, just standing here, one keeps looking all the time. 

HAYNE J:   You never know where the knife is coming from, Mr Jackson. 

MR JACKSON:   That is so.  Your Honour, I was once led in a case where whoever was leading me asked could he sit in the afternoon on the other side of the Bar table, because the light in the old Darlinghurst court was coming through a door and getting in his eye, and Sir Garfield Barwick observed that he was able to watch him as well with his right eye as with his left.  So no doubt there is the need for the vision on both sides.  A comment justified at the time, with respect. 

CALLINAN J:   It was a Victorian counsel, was it not, Mr Jackson? 

MR JACKSON:   It was, your Honour, an aberration of the species.  Your Honours, may I say in relation to this question, it was not just a matter of cutting back by a metre; it was a matter of cutting back to the extent necessary.  I have taken your Honours to paragraphs 33 and 34 of the primary judge’s reasons. 

HEYDON J:   We have to be concrete about it though, have we not?  I mean, ultimately, some maintenance man should have been told to cut it back so many feet or metres from the edge.  How far should it have been cut back? 

MR JACKSON:   I was just going to give your Honours a reference to one of the expert witnesses on the point.  His evidence was obviously accepted by the judge, and he said, in effect, if he had seen this, he would tell the gangers to come along and cut it back so that vision was not obscured, to put it shortly.  I do not know that it goes ‑ ‑ ‑

HEYDON J:   I see, that was the expression.  It was not put in terms of distance?

MR JACKSON:   No. 

HEYDON J:   It was put in terms of a function? 

MR JACKSON:   Your Honour, one is only talking about an area that is about 11 feet wide, so it is not a huge task one is talking about.  That is the point I was seeking to make. 

HEYDON J:   But apparently one has to fit that in with the proposition that the foliage has got to be kept in sufficient thickness to stop light shining through at night time.

MR JACKSON:   Well, your Honour, there were gaps along it for some distance.  There has to be some foliage.  There does not necessarily have to be foliage everywhere along and one could perfectly well have foliage there but at the same time have it closer to the post and rail fence and not let it grow over, in effect, and ‑ ‑ ‑

HEYDON J:   That would be perhaps less of a problem at this point on the other side because there was a pedestrian crossing, so that the drivers would be watching for that.

MR JACKSON:   Yes, and the pedestrian crossing and also, I think, a bus stop across the road too.

McHUGH ACJ:   But the case that you have to meet is that if the Council and the Road Traffic Authority had not been negligent, your client would have had only one more second to observe.

MR JACKSON:   If your Honours please, one more second – I mean, the plaintiff and the father and sister were people who, as he came along, he would have been able to see.  They would have been in vision, your Honour.  Now, if one speaks of one more second, it depends on a number of factors not really established, in our submission, because one cannot say exactly where they were.  All one can say is that they were obscured.  Their vision was obscured and his vision was obscured.

McHUGH ACJ:   Photograph exhibit C7 at 642 shows the nine metre strip.  Now, at least from where that photograph was taken, there was a reasonable degree of visibility which no doubt caused the judge to find your client negligent.  My understanding is that they crossed just near that arrow on the roadway.

MR JACKSON:   And refers to the closer of them.

McHUGH ACJ:   The closer one, yes.  So you have that strip there under which they are visible.

MR JACKSON:   Well, it is really not much of a strip, your Honour.  If you look at exhibit C2 on 637, the policeman is standing on the left in that spot.

McHUGH ACJ:   Yes.

MR JACKSON:   You can see the yellow jacket.  It does not look a very big gap at that point and if one gets a photograph probably taken from the same position as C3 and you move just a little bit back into it, there is not much of him you can see at all.  The nine metres is really something that is somewhat illusory, with respect.  It is only when you get up close that it looks of any size. Your Honours, as I said before, if one goes to the evidence of Mr Winning at page 528 in volume 2, he agreed that:

a distance of nine metres cleared space is not a sufficient sight distance to stop a vehicle that’s travelling at anything above 40 kilometres an hour –

and he agreed:

You have to be travelling at something less than 25 kilometres an hour to stop in nine metres –

In response to your Honour Justice Heydon, could I just stay with his evidence for just a moment, Mr Winning, that is in volume 2 at page 520.  Your Honours will see at about line 22 he was asked about the proper principle and then going down the remainder of that page at about line 43:

the obvious reason for that is that if a pedestrian does cross through there, the driver of the vehicle on the road has a vision of the pedestrian and vice versa.

And then your Honours will see the next question and answer going to the top of the next page.  Then coming more specifically to page 531, line 45, your Honours will see at the bottom of page 531 he agrees there had to be:

an adequate clear space between the edge of the kerb and the vegetation.

He looked at photograph C2.  At the top of the next page he said he saw the bushes and then at lines 5 to 10 agreed they were “not trimmed so as to leave a clear gap”.  He agreed they were not “trimmed to an appropriate state”, that goes down to about line 18.  And then he was asked about the nine metres, this is in the middle of the page, and he had said in his report what your Honours will see quoted there, and it then appears at line 34 that he was only talking about the “9 metre gap” itself.  Then at the bottom of page 532 he is speaking about “the bush immediately adjacent to the accident site”.  He agreed “that wasn’t trimmed or maintained to an appropriate standard”.  Then, having looked at photograph C12 about the middle of the page, at about line 45 on page 533 he said:

Q.  As a traffic engineer, you wouldn’t design a road that had vegetation that grew like that, would you?
A.  No.

Q.  As a traffic engineer, if you drove along that road and saw the vegetation in that state, you would call the relevant labourers out to trim it, wouldn’t you?
A.  If it was my responsible area, yes.

And that goes over to the top of the next page to about line 14.

Your Honours, I do not think it is possible to say exactly how far it should be cut back, but the point of saying the concentration on one metre in a sense is to pick something out of the book, as it were, and to say because this is something that is suggested, it would have to be more here, but it is really a question of adequacy overall.  Your Honours, could I come then to the question of the parking bays and I will do so as briefly as I can.

McHUGH ACJ:   I thought you might have spent some time on that.  That point seemed to have been fairly cursorily dealt with by the Court of Appeal.

MR JACKSON:   That is what I am going to say, your Honour.  What I was going to say was your Honours will see the approach which the primary judge took in volume 6 at page 1247, paragraphs 39 to 40.

Your Honours will see that at paragraph 39 the judge referred to the fact that:

a relevant consideration . . . was the width of the carriageway –

He is referring there to a standard and the standard to which he is referring is set out in volume 3 at page 588.  In paragraph 14.2.2 your Honours will see that reference to “Controlling Factors” including “width of carriageway” and a reference to figure 14.6, which is a figure to which the judge referred and to which I will come in just a moment.  If one goes to page 590, first of all, to the reference at the top of 14.3.1 to the fact that:

Angle kerbside parking can accommodate up to twice as many vehicles per unit length of kerb as parallel kerbside parking.

On the same column at paragraph 14.3.3 is the heading “Warrants for Angle Parking” and then after the six subparagraphs:

Fig 14.6 indicates the minimum width between separation line or median and the kerb related to traffic volume and speed which should be available before angle parking is permitted.

Now, 14.6, your Honours, is at page 593.  What your Honours will see is that in the vertical axis is carriageway width and it is the carriageway width from the middle of the carriageway to the relevant kerb line.  That that is so is apparent from the example that is given underneath.  Your Honours will see the lines drawn showing “Kerb line – 90^o Angle Parking” and, as one might expect, the larger the angle that is involved the wider the road needs to be.  The road in this case was 7.2 metres wide in toto.

McHUGH ACJ:   Did the judge not say 7.4?

MR JACKSON:   He said both, I think, your Honour – 7.2 somewhere, 7.4 – I took the first one.  I am happy to go with the second.  Your Honours will see that if one drew a line across between “6” and “8” somewhere, that would intersect the “Kerb line – 30^o Angle Parking” and the “Kerb line –Parallel Parking”.  Now, one has to add into it, of course, the fact that one is talking about an area which is to be parking off the road as distinct from on it, but even doing that, your Honours, and taking 3.7 metres as being the starting point and even if one, let us say, doubles that, for the size of the parking area, one still does not get to “8” or much more than “8”.

KIRBY J:   Is the negligence alleged said to be the fact that if it had been angle parking there would have been a wider carriageway in the reserve road or is it that this made more dangerous the backing of motor vehicles or the driving of motor vehicles on to the carriageway and therefore require more attention of passing drivers like your client, or both?

MR JACKSON:   The latter really, your Honour.  If one compares, say, 90 degree parking with angle parking – that is, say, 45 degrees – the result of the angle parking at 45 degrees is that one would not expect a driver to have to go onto the wrong side of the road for every movement.  For some, no doubt, if the driver wanted to come out and then turn right round and then go in the other direction, but it creates fewer movements.

The primary judge, at paragraph 40 of his reasons, accepted the evidence of Mr Wingrove, and that evidence was that the 90 degree angle parking should not have been permitted, and it is clear that that was an acceptance of his oral evidence from three passages of that evidence.  First of all, in volume 1 at page 232, line 23 through to 233, line 13, and your Honours will see at line 40 on 232 he said it did not meet the standard because of the width of the road.  Then the last answer on that page he indicated why it was inappropriate, and then your Honours will see the first three questions and answers on page 233, including the expression:

it is a further distraction because there is insufficient room and it creates greater conflict.

Your Honours, that is the first passage.

The other two passages are in volume 2.  There is a brief passage at page 282, lines 15 to 20, where he said it did not comply with the standard.  Importantly, at page 350, in the passage which commences at about line 29 and goes through to page 351, about line 1, he described the alternatives and at the top of page 351 said those were available alternatives in this case.

Now, your Honours, going back to the primary judge at paragraph 40, on page 1247, it is plain that the judge accepted Mr Wingrove’s evidence and, as he said in the last four lines on 1247, there was a “potential hazard” created for other drivers.  At the top of 1248, he concluded that “is exactly what happened” to us in this case.

That the movement of the vehicles, the two other vehicles, was not insignificant can be seen, too, from the fact that the plaintiff’s father’s attention was directed to them.  You will see that in volume 1 at page 141, about line 30.  In the passage which goes from perhaps line 30 through to about line 40, he noticed there was something going on there, too.  I have taken your Honours to exhibit D1, the photograph at page 653, but it demonstrates the shortage of room for manoeuvre in the area.

Going then to the Court of Appeal’s reasons on this point, they are really in two parts, Justice Ipp and Justice Giles; Justice Ipp, first of all, at page 1285, paragraphs 70 through to 79 – the actual reasons on the point commence at paragraph 72.  Your Honours, could we say these things about them.  Of course, in relation to paragraph 72, the standard was a guide only.  It was not mandatory and Mr Wingrove did say, as the judge refers to at paragraph 73, you do not always have to comply.  That follows from standards not being mandatory.

But, your Honours, one asks, what about his other evidence that the trial judge obviously accepted?  First of all – I will take your Honours to the passages, but at page 233 where he said it was unacceptable, it was a “further distraction” and created “greater conflict”, and at pages 350 and 351, where he spoke of the safer alternative.  The views adopted by the Court of Appeal in this regard really seem to disregard entirely that evidence which the judge accepted.

The second basis is that referred to in paragraphs 75 to 78, and, your Honours, what, in our submission, that fails to appreciate is that the parking arrangements, as the primary judge found at paragraph 40, did constitute a distraction to drivers and the distraction manifested itself.  Now, in relation to what Justice Ipp says in paragraph 77, potential hazards can become real.  That is why they are hazards and they will often become real where there is negligence on the part of someone else.

McHUGH ACJ:   Well, that is so, and the fact that your client may also have been negligent because he was not carefully driving does not alter the fact that there has been a risk created by the conduct of the defendant.

MR JACKSON:   Your Honour, take the simple case of someone who does not put the lid back on the manhole and someone having had a lengthy lunch falls down it.  That is negligent, but the manhole cover authority would still have to pay. 

KIRBY J:   But there would be a million parking spaces off roads that are of this kind throughout the nation.  I mean, the trouble with angle parking is inevitably you lose part of the space for parking.  At a 90 degree angle, you get the entire space for parking and parking is at a premium.  So this is not an unusual parking arrangement, especially in that sort of environment, I would not have thought. 

MR JACKSON:   Well, I do not, with respect, know about that, your Honour.  If one looks at the evidence, it was regarded by the witness whom the judge accepted as being something that should not have been permitted.  If your Honour says parking spaces are at a premium, the space was there because it happened to be the space that suited the hardware store.  In relation to that, it was a matter for the Council whether they would allow them to have the lot, or some only, and in determining what should have been allowed they were in error.  With respect, I do not really know that that is correct to say that there are millions of them, or a large number.  There are some, no doubt, but how they got there is another question.  If they should not have been allowed, they should not have been allowed. 

CALLINAN J:   Mr Jackson, you have asked for a reinstatement of the trial judge’s apportionment, have you not? 

MR JACKSON:   Yes. 

CALLINAN J:   There is an intermediate position, is there not?  Say we were to take the view that the Court of Appeal was right in some respects, but wrong in others, the matter would have to go back then, would it not?  We would not make a different apportionment, would we? 

MR JACKSON:   Well, your Honour, could I say two things.  It is a case, really, where this Court would be in as good a position as the Court of Appeal to make the apportionment, in our submission, if there was to be a different apportionment, because the case would be pretty much gone through as much here as it would there.  But I can appreciate that the Court might take a different view on that. 

CALLINAN J:   It is just you have not made any suggestion in that regard.  You have just asked, I think, in your notice of appeal for reinstatement, effectively. 

MR JACKSON:   That is what we want, your Honours.  If the Court were to take a different view, one would have to see first whether that made a difference to the percentages. 

CALLINAN J:   Well, let me give you an example.  It may be that the Court of Appeal’s view with respect to the traffic sign or the warning sign is a very persuasive one, but perhaps its view on other matters may or may not be as persuasive.  The same might be said of the parking bay perhaps.

MR JACKSON:   Yes.  Your Honour, a possible different result with those two, because it is a very real question, in our submission, whether the primary judge was saying that this was a separate particular of negligence.

CALLINAN J:   I understand that. 

MR JACKSON:   But if that were the case, then he seems to have taken the view, really, that the negligence of both was about equal, and it is difficult to see it would make a very significant difference.  It would be a question, too, whether it made a difference in terms of whether we should be liable for more than 50 per cent. 

KIRBY J:   It is enough for you to get a basis of negligence against the respondents, is it not?  It does not have to be all three of the elements, so long as there is some evidence against them, though when you get to apportionment, the quantum of negligence is relevant, it would seem, to that task of just and equitable. 

MR JACKSON:   Well, your Honour, there would be something to be said for the view that to say 25 per cent for each of them was – there should have been a bit less for the RTA and a bit more for the Council.  One might say it is a possible view.  But it does not follow that if, for example, the Court were against us on the parking and, say, the sign – assuming they are two distinct things – that the result should be that we are liable for more than 50 per cent, because what one sees is that the trial judge seems to have treated the RTA, on the one hand, and the Council, on the other, as equally to blame. 

That is so even though there were two additional aspects potentially in respect of the Council.  But there is no reason, we would submit – I think I would be saying the same thing again – why we should be liable for more than 50 per cent.  Anything else would be a matter of apportionment as between them.

Your Honours, could I just say three further things.  We would refer also, in relation to what was said at paragraphs 75 to 78, to what is in our written submissions at paragraph 34.  I think I have said already what is there.  Finally, in relation to Justice Ipp at paragraph 78, why, in a sense, is one looking at the hypothetical case?  One looks to see what the situation was on the day and there was a finding that his attention, in fact, was distracted.

Finally, if I could go to Justice Giles at page 1270, his Honour seems to accept that there was a distraction, but because the distraction would be constituted by the possible collision of two other vehicles, it was not a relevant distraction.  Now, that, with respect, seems a little odd if one is looking at a situation where there is a narrow road, two vehicles with a possible collision not very far away and in the position where the child is.  Your Honours, it must have been a relevant distraction.

Your Honours, those are our submissions.  If I might have leave to give your Honour Justice Callinan the references your Honour asked for? 

McHUGH ACJ:   Thank you, Mr Jackson.  Yes, Mr Morrison.

MR MORRISON:   Your Honours, just to clarify that matter about the distances, the reference in the trial judge’s judgment to the 7.2 metres appears at 1232, line 30 and the 7.4 metres at 1247, line 35.  Nothing turns on it; there were different estimates given at different times and his Honour appears to have picked up one estimate at one point in his judgment and another estimate at another.  Neither complied, and in respect of the parking issue his Honour was using the wider measure in any event.

Your Honours, we will not seek to repeat what has been said by my learned friend Mr Jackson but could we just emphasise a few matters and then deal with one matter which is different in our appeal.  First of all, we would say that it is quite clear from the trial judge’s approach that he saw speed as excessive in the context, amongst other things, of poor visibility.  That appears in the judgment at 1241 in paragraphs 24 and 25.

KIRBY J:   This is on the foliage point, is it?

MR MORRISON:    Yes.  That is, his Honour was not seeking to separate out the conduct of any one party but rather to place it in its appropriate context, and we say that his Honour’s approach in that regard was absolutely correct.  That is, his finding in paragraph 24 that he was:

satisfied that the first defendant was travelling close to 60 kph as he came along the service road which was excessive in the circumstances, having regard to the narrowness of the road and the limited vision on account of the trees and shrubs on the nature strip which was liable to obscure the presence of persons there who might be heading in the direction of the hardware store.

And similarly, down in the next paragraph at 25, about halfway through that:

I am satisfied that if he had been keeping a proper lookout on both sides he would, notwithstanding the foliage –

this is the passage relied on in the respondent’s submissions –

have been able to see the plaintiff in sufficient time to stop or swerve to avoid her, at least if he had been travelling at a more appropriate speed in the light of the road conditions to which I have referred.

So, his Honour was merely putting that issue of speed in the context of a variety of problems:  narrowness of the road, poor visibility.  Absent those factors, the speed may well not have been excessive.  Absent those factors, the consequences of speed may not have led to the failure to see the plaintiff.

Could we just add one other thing to the submissions on angle parking.  Without taking your Honours to it, the Australian standard which is at 588, says that angle parking depends upon two factors.  One is the width of the carriageway and the other is whether or not that carriageway is one direction or two ways.  In this particular case we had not merely a narrow carriageway but we had two‑way traffic on it and it is the combination of those factors which meant that this carriageway was well under the Australian standard for angle parking, let alone 90 degree angle parking.  That is evident from the photographs when one sees that in order to come out of the 90 degree angle parking, the whole of the road had to be blocked by the reversing vehicle, causing the interaction which in turn, his Honour found, was the very distraction which contributed to the failure of Mr Pledge to see the plaintiff.

KIRBY J:   Was there evidence that Mr Pledge was familiar with the road and knew of this section of it?

MR MORRISON:   Yes, he had driven along this road a number of times before and he was broadly familiar with it was the state of his evidence which his Honour accepted.

KIRBY J:   There just seems a logical flaw – I cannot put my hand on it – but that he is driving along the road and he has to anticipate somebody backing out of a 90 degree parking lot ‑ ‑ ‑

MR MORRISON:   It was in this context, and interestingly – and no doubt one of the reasons his Honour felt comfortable in accepting Mr Pledge – Mr Ryan also said he saw the reversing vehicle at the relevant time, but it was not simply a question of did he take his eyes off the position of pedestrians because of the reversing vehicle, the question was, was it a distraction which contributed to the injury, and his Honour found that it was a cause, and that is all he needed to do.

The passage I was taking your Honours to in Justice Ipp’s judgment at 1283 is in paragraphs 63 and 64.  What his Honour seems there to have done is to consider only the issue of the driver’s view of the pedestrians, not the reverse, the pedestrian’s view of the driver, and that was equally important.  It was important in terms of the guidelines which the RTA had put out for itself and promulgated to the councils throughout New South Wales well before this accident.  It was important because the calculations that Mr Justice Ipp engaged in depended upon the pedestrians continuing to behave in exactly the same manner when they had vision as they did when they did not. 

We would respectfully submit that assumption is unwarranted, and it is unwarranted particularly if one has regard to the evidence of the father.  That appears in our written submissions, and I will not repeat it, but in our submissions in reply we gave reference to the father saying that he paused to look around and it was at that point he released his daughter’s hand, she stepped forward, he glimpsed through the shrubbery, the red object from the right.  In that context, it seems clear that a quite different consequence could have occurred. 

The father said, in the same passage, that his daughters had complained about him keeping such a tight hold on their hands when he perceived a danger such as when they were crossing the Great Western Highway.  He relaxed the grip on his daughter’s hand because he did not perceive the danger.  It was open to his Honour to conclude that had there been a better degree of visibility available to pedestrians the consequence may well have been different in terms of pedestrians’ conduct.  That in turn, we would say, renders the calculation based upon one second one which is ultimately dependent upon an assumption which is not made out.

My learned friend Mr Jackson referred to the issue as to whether or not the trial judge relied upon his view.  He said he did for some purposes, certainly expressly.  That appears at 1240, line 20 and again at line 44.  He does not say so expressly that we were able to find in the passages relating to the other matters.  He does, however, at 1240, line 44 refer to the perspective he formed at the time of the view as one of the reasons for his finding as to exactly where it was that the plaintiff crossed and stepped out into the road.  It seems, from his reference to the whole of the evidence in support of his conclusions, that the view played some part.  The extent of that part, however, is not clear but we say that is sufficient to invoke the principles in Abalos in any event.

It is worth noting too that, as is noted at 1239 in paragraph 19, it was not a question of the driving having to stop to avoid hitting the pedestrian.  He only had to swerve very slightly to have missed her.  That was the evidence accepted by his Honour.  Indeed, part of the problem was that because of the danger he perceived between approaching vehicles and a vehicle backing out, Mr Pledge moved over further to the left of the carriageway and very close to the shrubbery.  Had he not done so, it seems from the point of impact shown on the vehicle in the photographs and from what was said by him and what his Honour found at 1239 in paragraph 19 that the impact may well not have occurred and certainly the possibility of it being avoided was very real.  So, it is not simply a question of braking distances.  Rather, the whole of these factors have to be taken into account.

The question was asked earlier about Constable Mills and whether he was challenged in cross‑examination.  The passage which he effectively was not challenged on appears in volume 1 at page 48.  It might be helpful if your Honours at the same time had open page 646, which is photograph C11.  The passage of questions commences on the previous page at page 47, commencing at line 53, and referring to the point at which the traffic lights empty pedestrians onto the service road with no continuation of the pedestrian crossing, because it is to be noted that the vegetation overhangs the road at the very point at which, presumably, the RTA and Council want pedestrians to cross.  There is absolutely no visibility at that point: 

Q.  And those trees at the point at that traffic light is the one where the pedestrian crossing ends and would it be fair to say that visibility at that point is much the same as visibility at the point where the accident, in fact, occurred?

Then there is an objection.  The objection related to whether or not the photograph was a photograph taken at the time.  That was clarified.  The question was then asked again at 17 on page 48:

Q.  I am talking about from either the point of view of a pedestrian or the point of view of a driver, that is, is there obstruction to visibility for pedestrians and drivers at that point as there is at the point where the accident occurred?
A.   Yes.

That was never challenged in cross‑examination.  Similarly, the evidence of Constable Schneiders on the same issue was not challenged, nor was the evidence of Mr Ryan or, for that matter, Mr Pledge, on the issue and although criticism is made because the question was not asked of Mr Pledge in‑chief “Why didn’t you see the plaintiff”, had that question been asked by counsel appearing for Mr Pledge, one can imagine the chorus of objections which would have been raised from the defendant’s end of the Bar table that that was purely a speculative matter and not a matter as to which he could give evidence.  That is why, no doubt, the evidence in that regard emerged other than in Mr Pledge’s evidence in‑chief.

The question of apportionment was raised and we should immediately say that our client, because of joint and several liability, has no interest in the degree of apportionment between the defendants providing a common law defendant is found liable to some degree, but it could at least be noted that the negligence found as against the RTA and the Council depended upon the RTA having designed something which was contrary to its own standards and which would have been rejected by a man who had been an RTA engineer until two weeks before he was called in as an expert evidence for the RTA and ultimately ended up giving evidence, in effect, against them, both the Council and the RTA ‑ ‑ ‑

KIRBY J:   This is the standard on foliage and parking or ‑ ‑ ‑

MR MORRISON:   Purely on foliage.  The RTA had no role in regard to parking.

KIRBY J:   I see, yes, that is correct.

MR MORRISON:   The Council approved the parking and that appears from the Council document at 1024.

KIRBY J:   But the Council had the responsibility for trimming?

MR MORRISON:   The Council – that same document at 1024, which was a Council plan of the area, clearly showed that the Council was having regard to the shrubbery and had an input into the design, but the actual planting and initiation of the design was the RTA’s.

KIRBY J:   But was not the real defect the failure to maintain and trim, rather than the original design of the shrubbery?

MR MORRISON:   It was both.  The planting had to be planting which was appropriate and which had to be maintained, as well.  So the plan which showed, at 1024 and Y2, which is nearby – the RTA’s plan, which was exhibit Y2 – shows the trees drawn so that they overlap the road.  That was what led Mr Winning to say it was unacceptable, and it does not matter at what height those trees are, they should not overlap.  Presumably, you have vehicles of different heights and different degrees of risk.  Ultimately, poor design, then poor maintenance, bearing in mind that both the RTA and the Council carried out work – and we set out the references in our submissions ‑ prior to this accident, unfortunately, though, not at this point, but a little further along the road. 

Then to that we have added, as far as the Council is concerned, what was done in respect of parking and, perhaps, signage.  We would respectfully adopt what my learned friend, Mr Jackson, said about signage; that may have been a reasonable response to the risk created by the foliage and not necessarily a separate head of negligence. 

Given what his Honour found, and that precision in terms of apportionment is not necessarily to be attempted, his Honour, in attributing responsibility equally between RTA and Council, was weighing factors which in some places were in common, but in other cases counterbalance each other, and one can see how his Honour came to the conclusion that their relative responsibility, on his findings, were about equal.

Your Honours, there is one matter in respect of which our interests differ from the other appellant and I will simply refer to it very briefly.  In respect of the Court of Appeal’s refusal of a Sanderson or Bullock order, their reasons appear at 1291 and subsequently.

KIRBY J:   What is this Sanderson order?  Where does it originate?

MR MORRISON:    It originates from a case called Sanderson v Blyth Theatre Co [1903] 2 KB 533 at 539. It is a Bullock order by a short cut, that is, instead of ordering that a plaintiff pay a successful defendant’s costs and that that plaintiff then recover those costs from the unsuccessful defendant, the short cut is to order that the unsuccessful defendant pay both the plaintiff’s and the successful defendant’s costs. It simply avoids a step in taxation or assessment of costs, and that is the only respect in which it differs from a Bullock order.

The vice in what we say their Honours did in the Court of Appeal is disclosed to some extent by ‑ ‑ ‑

KIRBY J:   There was a second judgment, was there not?

MR MORRISON:    Yes, that is the judgment which appears at 1291.  His Honour Mr Justice Giles said:

There must have been some conduct by Mr Pledge making it fair to impose on him liability for the costs of the RTA and the Council.

Mr Justice Ipp in his judgment does not repeat those words, but it seems that the same thoughts motivate him when one reads his reasoning in paragraphs 12 and 13.  In this case, the plaintiff originally only sued Mr Pledge.  Mr Pledge joined the Council and RTA as cross‑defendants.  The plaintiff then sued them and actively pursued them.  However, as was said in a useful summary of the law in a case called Permanent Trustee Co Ltd & Another v Keogh ‑ ‑ ‑

McHUGH ACJ:   This is another example of special leave by stealth, is it not?  I mean there was not a mention of this point on the special leave application – no doubt it was mentioned in the special leave papers – no argument, there is a general grant of special leave and then you are arguing this which, having regard to the ordinary nature of the Court’s business, is trivial.  Why should the Court be dealing with matters such as this?

MR MORRISON:   First of all, it was in the special leave submissions.  It was not dealt with in oral argument because there seemed to be more important things to focus on at the time but it certainly formed part of the submissions, part of the orders sought.  Can I simply say, as far as the plaintiff is concerned, the value of any judgment is greatly diminished by adverse orders for costs at first instance and in the Court of Appeal in respect of two defendants.  So that it may seem trivial in the scheme of things from a legal point of view.  It certainly is not trivial in consequence for the plaintiff.

McHUGH ACJ:   Yes, I know, of course, but it is a discretionary type argument and the Bar and the profession should be put on notice, as far as I am concerned, in future that if points are not mentioned on special leave, then they may be in grave danger of having any special leave revoked because it puts a burden on the Judges to go through every ground in the notice of appeal to see whether this particular point should be taken up.  Here is a case where points are argued strongly by a number of counsel and this point is never mentioned, and a general notice of appeal is there and now we have to deal with it.

KIRBY J:   It is referred to in your written submissions before this Court.

MR MORRISON:   It is referred to in our written submissions and, indeed, in Mr Pledge’s written submissions in response.  All I wished to do was give reference to one section of the authority I have just referred to which deals with this point and which shows, we say, error of law in the approach taken by the Court of Appeal, and that is ‑ ‑ ‑

HAYNE J:   To suggest that this is authority rather than a particular decision exercising the discretion in particular circumstances really seems to me to be gilding the lily, Mr Morrison.  What is the proposition of law which you advance?

MR MORRISON:   The proposition is this:  as Mr Justice Davies said at paragraph 8 of the case I have referred your Honours to and which your Honours have been supplied with:

it is not necessary that there be attitude taken on the part of the unsuccessful defendant which has led to the joinder of a defendant or defendants who are successful in the action.  Sanderson itself was [such] a case –

That is a very simple proposition and we just say it is an error of law but it appears the Court of Appeal thought otherwise.

Your Honours, can I leave that and pass back to the matter which is, we would say, at the heart of this appeal, and that is this.  At 1278 in paragraph 41, Justice Ipp rejected as plainly wrong the evidence of four witnesses, which was accepted by the trial judge and accepted because, in large measure, those witnesses were not the subject of challenge.  In those circumstances, we say that his Honour’s view, adopted by the other members of the Court of Appeal, was a view which required the application of an Abalos test and that his Honour failed to do so.  It was not a question of drawing inferences from findings of fact.  He overturned the findings of fact made by the trial judge and we say that is the fundamental error and vice in what the Court of Appeal did.

KIRBY J:   Let me understand the costs argument.  Does that arise in the event that the appeal is successful?

MR MORRISON:   No, it does not.

KIRBY J:   It is only in the event that the appeal otherwise fails, you say, that the costs order in the Court of Appeal discretion fail for erroneous consideration?

MR MORRISON:    The matter never has to be dealt with by this Court in the event that the appeals are successful.

KIRBY J:   Yes, thank you.

McHUGH ACJ:   They are your submissions, Mr Morrison?

MR MORRISON:    They are, thank you, your Honour.

McHUGH ACJ:   The Court will now adjourn and will resume sitting at 2.00 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

McHUGH ACJ:   Yes, Mr Davies.

MR DAVIES:   Thank you, your Honours.  Your Honours, can I first remind your Honours the difference between the Roads and Traffic Authority and the Council is that we say that if we are liable at all, we are only liable because we were responsible for the design of the vegetation on the strip.  The Council asserts that we have a responsibility as well in relation to maintenance and, indeed, the trial judge found that we had some sort of a non‑delegable duty of care in that regard, but our position is that our only responsibility is for the planting in the first instance.  All the matters relating to the service road, like signage and the parking bays, is the Council’s responsibility.

Your Honours, what this Court’s task is is to determine whether the Court of Appeal got it wrong.  This is a strict appeal, as the joint judgment in Fox v Percy makes clear, and perhaps if I could take your Honours to Fox v Percy because I want to refer to a few passages. At the moment, it is reported in 77 ALJR 989, but your Honours may have a transcript copy. I will refer to paragraph numbers. At paragraph [32] on page 995 of the report, the joint judgment, having discussed what the Court of Appeal’s responsibility is, makes it clear that:

Under the Constitution, the appeal to this court is in the nature of a strict appeal. Our sole duty in this case is to determine whether error has been shown on the part of the Court of Appeal. This court is not engaged in a rehearing. As such, it is not this court’s task to decide where the truth lay as between the competing versions of the collision given by the parties.

Now, if I could then go back in that decision to paragraph [20] on page 993, where the joint judgment discusses what the Court of Appeal’s responsibility is, and that derives from section 75A of the Supreme Court Act which is set out relevantly in paragraph [21], and the particular subsections that are important are most of those set out.  Subsection (5) that the matter is to be by way of a rehearing, and subsection (6) that:

The Court shall have the powers and duties of the court . . . from whom the appeal is brought, including . . . 

(b)  the drawing of inferences and the making of findings of fact –

and then in subsection (10) that:

The Court may make any finding or assessment, give any judgment, make any order . . . which ought to have been given or made or which the nature of the case requires.

Now, as the joint judgment makes clear, particularly in paragraph [27], if there is any conflict between that section and the principles that this Court established under the common law in cases such as Abalos and Devries, then section 75A is what has to be looked at. The joint judgment says there in paragraph [27]:

that instruction –

that is, from this Court in those cases –

did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act, applicable in this case, to perform the appellate function as established by parliament.

Then they say:

Such courts must conduct the appeal by way of rehearing.  If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

Then again at paragraph [29], the joint judgment makes references to some recent decisions of the Court where the Abalos principle or the exception to it is relied on such as SRA v Earthline.  They say halfway through that paragraph:

In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. 

Then they talk about the finality of litigation.

So what the Court of Appeal did in this case, and we say did properly, was to look at all of the evidence and to draw the inferences that ought to have been drawn.  It has to make the orders that ought to have been made.  Now, that ‑ ‑ ‑

KIRBY J:   Do you say anything about the application of Abalos?  Does Abalos have anything at all to do with this case?

MR DAVIES:   No, that was the next point I was about to make, your Honour.  We say Abalos does not have anything to do with this case at all because all the Court of Appeal has done at its highest is to say we have to take the evidence of Mr Pledge and Mr Ryan, as the trial judge did, but there is other evidence which also needs to be looked at.  The best evidence of that other evidence is the photographs, particularly photographs in exhibit C, which were the photographs taken immediately after the accident. 

CALLINAN J:   What about the view though, which is given evidentiary effect by section 54?  I know the scene had changed and perhaps the photographs represent the scene more accurately at the time, but the Court of Appeal does not seem to have made any allowance at all for that fact.  I would have thought that was a considerable advantage.

MR DAVIES:   The Court of Appeal does make reference to the trial judge’s advantage at the view but ‑ ‑ ‑

CALLINAN J:   Do they say that?  Do they give any weight to it?  I thought they simply observed that Justice Ipp simply observed that there had been a view.  I may be wrong.  It seemed to be part of a narrative.  Mr Jackson did give us a paragraph.  I have forgotten what it was.

MR DAVIES:   I am sorry, your Honour?

KIRBY J:   Was it 78?

CALLINAN J:   I think it is.  I think it is at page 1280, perhaps.

MR DAVIES:   Yes, in paragraph 46 he says:

His Honour’s findings in this regard are of particular value as he held a view on site during the trial when various features of the scene were pointed out –

Your Honours, the important matter is that the scene had changed very significantly in the years which had passed.

CALLINAN J:   Is his Honour’s driving along the road in the same direction an experiment within section 54?

MR DAVIES:   I am not sure that it was regarded by anybody, including his Honour, as an experiment.

CALLINAN J:   Nobody seems to have referred to section 54 of the Evidence Act, any way, but that does not preclude it from being treated as an experiment, if in fact it could be so described.

MR DAVIES:   No.  If it could be seen as that, but the purpose of it appears not to have been to do that; it was to give his Honour a view of the scene as best was possible in the years that had elapsed.

KIRBY J:   I must admit I did not really understand this case from the written submissions until I looked at the photographs and I think Justice Callinan’s point is that seeing the scene, even if it has changed a bit, is going to definitely help in comprehending things, putting verbal evidence into a real spatial context.

MR DAVIES:   Yes, it can give colour to the words that are used in evidence and particularly when one is only reading the transcript of it.

HAYNE J:   But it can also give the third dimension, which is lacking in the photographs.

MR DAVIES:   Yes, it can, and it gives particular importance to the things such as the parking bays, how they were placed and so on, the narrowness of the road, because those things had not changed since the date of the accident.  But what had changed and what concerns my client is the state of the vegetation, and the view in that regard could only be of very limited worth from the point of view of whether anybody could have seen anybody else.

HAYNE J:   Assume that to be so, and that may be a large assumption in your favour, you point to the photographs as the best available evidence of the scene, do you?

MR DAVIES:   Yes.

HAYNE J:   What evidence is there, if any, that gives any dimension to those photographs, other than what you might loosely infer by scaling off the height of an individual identified, with all the problems that foreshortening of image present?  How can you tell where the photograph was taken from?

MR DAVIES:   You cannot tell precisely but you can get some idea.  There is some evidence that photographs were taken successively up the road from the equivalent of the pedestrian crossing.

KIRBY J:   Justice McHugh and I remember Mr Taylor who always took photographs in cases and they were always taken from angles which favoured the party he had been retained by and it was a great skill, much in demand before juries.

MR DAVIES:   Your Honour, these photographs were tendered by the plaintiff in this case, so they are not photographs that we have put in and asked the trial judge to accept truly represent the position.  What is apparent when one reads the transcript as well, that, for example, the position of the policeman in the yellow vest was said to be close to where Mr Ryan stood, although in fact in a more disadvantageous position from sight lines because he was closer to the oncoming vehicle, Mr Pledge’s vehicle.  There is another photograph which I will take your Honours to at X2 which is in volume 5 on page 963 and this was a photograph accepted to have been taken on3 April 1995, which is about 10 months after the accident and when there had been some change in the vegetation.

The importance of this photograph is that Mr Ryan accepted in his evidence that where he is standing in this photograph is where he was standing immediately before Nadia proceeded onto the roadway.  It can be seen, therefore, how close to the kerb at least Mr Ryan was standing to qualify his approximations of eighteen inches to two feet because he accepted that this was where he stood.  In that sense, this photograph and C2, which is the photograph of the policeman in the yellow reflective top, are able to add something to the evidence that has been given by the witnesses about sight lines and so on.

KIRBY J:   What do you get from that photograph at 963?  Is there anything forensically that you get?  The foliage seems to be, if anything, worse, is it not?  It is certainly not much better.

MR DAVIES:   If we assume it is worse, the point is that Mr Ryan can be seen at least from the point that that photograph is taken, which is obviously some distance down the road because one can count the number of cars parked opposite him and towards the photographer.

KIRBY J:   Yes.  The bush that obscures him in 637 does not obscure him in 963.

MR DAVIES:   Yes.  Now, that is very relevant for the course that the Court of Appeal adopted and I will come to the correctness of this course in saying let us take the position:  if the RTA and/or the Council had pruned these bushes and shrubs back to a metre, what would the visibility have been then?  This assists in that process.  It also assists in justifying the Court of Appeal’s initial conclusion that there were sufficient sight lines in any event, that one did not even have to get to the stage of saying, “Well, let’s look at what the position would have been assuming no breach”.

HAYNE J:   The propositions you have just advanced implicitly carry within them the notion that there is a single cause.  That is, it is an argument which proceeds from the proposition that because the driver was found not to have been keeping a proper lookout, that was the cause.

MR DAVIES:   Yes, and ‑ ‑ ‑

HAYNE J:   That argument is fundamentally fallacious, is it not?

MR DAVIES:   Well, it is not, with respect, your Honour, because one has to determine first of all if the bushes and shrubs had any part to play in it.

McHUGH ACJ:   Just looking at it, if you had to ask, leaving aside any question of negligence, what caused this accident, most people would say it was the bushes.

KIRBY J:   That is what the father said when he straightaway went to the hospital.

McHUGH ACJ:   What else was there?  I mean if these bushes were not there, the chances of this accident happening would have been 100,000:1.  It is the fact that the bushes were there.  Now, that is a heavy burden for you to carry.

HAYNE J:   And you start from a premise that the Court of Appeal accepted that the careful authority would not have designed or maintained the bushes to the state that they were on the day.

MR DAVIES:   Yes, we have to accept that, your Honour.

HAYNE J:   Well, the question then is, was that a cause of what happened?

MR DAVIES:   We would suggest not, for a number of reasons.  The first is that the trial judge found that the child walked out onto the road without looking at all, so that that in itself has nothing to do with the bushes.  He goes on, we say unreasonably, to speculate that she might have taken more care if there had not been bushes there, but there ‑ ‑ ‑

McHUGH ACJ:   No, but, Mr Davies, it overlooks the vital point that if the bushes had not been there, she may not have stepped out.  You say that she stepped out without looking.  The fact is that if the bushes had not been there, she would have seen the car out of her peripheral vision, or her father would have, or the driver would have seen her.

MR DAVIES:   Your Honour, can I take up the last point about the driver.  The driver never ever saw her until she had hit his vehicle, notwithstanding that she was wearing a bright yellow top, as the evidence said, and that she was at least a metre out onto the roadway.  Now, this is a strong argument that the real cause and the only cause of this accident was the driver’s inattention and speed, because she was a metre out from the roadway where there were no bushes obscuring the view and he still does not see her.

McHUGH ACJ:   Yes, but you still have to overcome the problem that it is the driver’s inattention and the pedestrian’s like inattention that are the very risks that you have created by putting this bush there.  You have increased the risk.  There is always a risk a pedestrian will not look to the right as he or she crosses.  There is always a risk that the driver will not see somebody, but by putting the bush where you did you tended to stack the deck against them both.  You increased their risk.

MR DAVIES:   We may have stacked the deck against them, but it still has to be determined whether the bush had any part to play in this accident.

McHUGH ACJ:   I know.

MR DAVIES:   And for the reasons that I have given, the driver would not have seen her in any event because he simply was not looking.  Mr Ryan’s evidence is twofold.  First of all, he never looked towards his right to see if there were any cars coming before this accident impacted.  He saw just at the last minute something red coming through the shrubbery to him.

KIRBY J:   Exactly.  But that is the problem, is it not, it is through the shrubbery?

MR DAVIES:   But Mr Ryan’s evidence also was when he was asked, “If he had looked to the right you would have been able to see the car?”, and he said, “Yes”.

KIRBY J:   Once he had passed the shrubbery.  If the shrubbery had not been of such density and in such a position, presumably, he might have seen the red vehicle coming from his right because just as the child’s colour was bright yellow, the truck’s colour was red.

MR DAVIES:   That is right, but Mr Ryan let go of her hand before he looked at all to the right, peripherally or otherwise, because he said his vision was ahead and to the left, the vehicle coming that way, the vehicle backing out in front of him.  He then looks down to his other daughter on his right‑hand side.  He has let go of Nadia’s hand and it is only at that point that he sees this red in his peripheral vision coming through the shrubbery.  Now, his answer that if he had looked he would have seen it is of assistance to us because he did not look and he let go of her hand before that happened. 

There is the additional fact that Mr Ryan was, the evidence disclosed, six foot two tall and one can see in photograph X2 where that puts him in relation to the bushes.  There was unchallenged evidence that the bushes at their highest were four feet or 1.4 metres next to Mr Ryan and there was unchallenged evidence that in this nine metre gap Mr Ryan was standing towards the northern end, that is, the furthest end away from where Mr Pledge was coming ‑ ‑ ‑

HAYNE J:   Sorry, what was the evidence about the height of the bushes?

MR DAVIES:   It was 1.4 metres or four feet.

HAYNE J:   New South Wales is recruiting uncommonly short police officers, then, is it not, at 638?

MR DAVIES:   I understand that point, your Honour, but that was what Constable Schneiders gave as his evidence of the height of the bushes.  But, again, it may be where he was taking the point, whether it was at the kerb, whether it was 12 inches back and so on.

KIRBY J:   How long after the accident were the photographs at 637 and 638 taken?  How long after the impact were they taken?

MR DAVIES:   Within about an hour and a half or two hours.

KIRBY J:   I see.  It depends on where you measure that bush.  If you look at 638 as to whether the four feet is immediately proximate to the roadway or just a foot or a bit more back, because you can only just see the top of the head of the police officer in 638.

MR DAVIES:   That is right.

KIRBY J:   He would be more than four feet in height.

MR DAVIES:   Yes, but, of course, at that point – and this is where the height at 1.4 might be relevant ‑ nobody says Mr Ryan was standing back where that police officer is.  It is to be remembered again that they did stand at the kerb.  They did not walk straight across the nature strip and onto the road.  They stopped there, and they stopped at the position Mr Ryan says he was in in photograph X2, which was very close to where Constable Stuckey is in photograph C2 on page 637. 

Now, just to answer Justice McHugh’s point, we may in a theoretical way have stacked the cards or increased the risk, but the determination still has to be made, has the bush in the end played any part in bringing about this accident?  Nadia was standing on the left‑hand side of her father, who was a tall man.  She came up to about his ribs, he said, so her vision, in the first instance, if it was obscured and if she looked, was obscured by her father and then her sister on the other side.  But the trial judge finds she did not look and there is no evidence to suggest she did.  Rather, she pulls her hand away from her father’s and treads straight out onto the road and at a time when her father has not even looked to the right-hand side because he is distracted by what is happening on the front.

McHUGH ACJ:   Yes, but the plaintiff and the father have bushes on their side; their vision is obscured  It is obscured until they get quite close to the kerb and when you look at it from the driver’s point of view, it is much more likely in his peripheral vision he is going to be attracted by movement.  If he has an opportunity to see people moving, it is more likely to impinge on his consciousness than if somebody is just standing still.  That is the hypothesis upon which you seem to be proceeding, that somebody is just standing still, or would be standing still and should have been seen by the driver.  He may miss somebody just standing still in that position, given the surrounding vegetation, but if he had had more opportunity to see movement you might have a different result.

MR DAVIES:   Your Honour, he had the opportunity to see movement, that is, when the child stepped out onto the road and he still does not see her.  His evidence is not, “I saw her and I hit the brake but it was too late” or “I saw her and I swerved and it was too late.”  He says, “The first I knew of her was when she hit the side of my van.”

McHUGH ACJ:   I understand that but, you see, what happened here is the very risk to which your client’s negligence exposed the plaintiff.  Now, that being so, prima facie there is a causal connection and there must be an evidentiary onus on you to show that by reason of the driver’s negligence your own negligence in the prima facie causal connection from your negligence to the damage is obliterated.

MR DAVIES:   Your Honour, we accept that evidentiary burden and we say, for the reasons that I have given, that we have discharged it.  The position and the state of the vegetation simply did not play any part in this collision.

KIRBY J:   That is contrary to what the father said immediately.  I mean, his intuitive, spontaneous explanation at the hospital was the foliage.

MR DAVIES:   He does say that but then when pressed in the witness box he says if he had looked, and it is clear from the evidence he gave in‑chief, as well as cross‑examination that he never looked that way to know that the bushes did obscure him.  Certainly, it was true that by the time he came to see the red object move through, he becomes conscious of bushes and the fact that his vision was not unimpeded.  At the time the accident happened, the bushes themselves had not been anything that he had looked at.

HAYNE J:   At trial did your side run a calculation defence?  By that I mean did you say, “Look, to the reasonable driver this point was visible X metres, Y seconds before arrival”?

MR DAVIES:   No, we did not run a calculation defence, your Honour.

HAYNE J:   Did you on appeal?

MR DAVIES:   I did not appear at the appeal but I do not think that we did, and the Court of Appeal’s approach to the matter was something that surprised us, given the arguments that had been put.

HAYNE J:   It struck me as perhaps being such a case.  That, if I may say so, represents the chief difficulty I have with your side of the case, that what the Court of Appeal has done is run a calculation case without sufficient base being produced in the evidence or pointed to in argument.

MR DAVIES:   Your Honour, if one looks at the various measurements and so on that the Court of Appeal took, every one of them is justified by the evidence itself except for one, and they really assumed that against us.  That was the time that Mr Ryan and the children waited after they had crossed the nature strip.  They said it can be inferred that they waited for about a second before her grip was released.  The way Mr Ryan gives his evidence, one might think that there was more than one second which elapsed there but that will only work in our favour because the width of the nature strip is undisputed at 3.4 metres.  Mr Ryan’s evidence, that was not challenged, was that it took him two steps to get across it and that he always walks quickly and the children complain about that, hence, it was said that two seconds to get across the nature strip and there was no real doubt that Nadia, in walking out the metres she did, only took a second before she was struck by the vehicle.

The one additional matter is the 50 metres that the calculation starts to be calculated at from Mr Pledge’s point of view down the road, but we know from Mr Pledge’s evidence that he was just past the pedestrian crossing or just at it when he started to see this movement which led to the result, and therefore his speed at 50 to 60 kilometres an hour was able to be calculated.  So that when analysed the Court of Appeal has a solid basis for every part of the calculation.

Your Honour Justice Callinan has asked whether Constable Mills’ evidence had been challenged.  Of course, the trial judge really says nothing about the acceptance or otherwise of the evidence of Constable Mills and Constable Schneiders, but Constable Mills’ evidence on the particular point was whether the sight lines were good between the driver and the pedestrian.  At its highest, that is opinion evidence from Constable Mills.  I am not saying that he did not have some sort of ability to be able to give that evidence but it was not evidence of fact.

CALLINAN J:   Why is it not evidence of fact?  It is what he saw.

MR DAVIES:   Because one, he was not there at the accident; two, he did not speak to anybody who was involved in the accident.  He only got it from somebody else who had talked to the driver at the time.

CALLINAN J:   But the occasion to challenge its source was surely the trial?

MR DAVIES:   Yes.  What was put to him, for example, was that nothing was said by Mr Pledge, in the statement in the notebook, about not being able to see because of the bushes.  Constable Mills was assuming in his evidence that Mr Pledge’s evidence was, “I couldn’t see because of the bushes”, and yet Mr Pledge never said that until cross‑examination at the trial.  His statement to the police officers in the notebook simply said that he was driving up the road at a certain speed and then this girl hits the front of his car.

CALLINAN J:   I suppose what I was really suggesting was that there did not seem to be any substantial basis for Justice Ipp’s disparagement of Constable Mills’ evidence when it had not been disparaged by the parties at the trial.

MR DAVIES:   It was not, with respect, so much disparagement as the suggestion that there was other evidence that Constable Mills’ evidence had to be seen in the light of – and the chief evidence was the photographs themselves because he was making certain assumptions and he gives some general evidence, as does Constable Schneiders, about the ‑ ‑ ‑

CALLINAN J:   He had actually been to the scene, had he not?

MR DAVIES:   Yes, he had been to the scene.

CALLINAN J:   So he had had the same advantage of the kind referred to by Justice Hayne of having had a third dimension.

MR DAVIES:   Yes.

CALLINAN J:   The same advantage as the trial judge had, having had the advantage of a third dimension.

MR DAVIES:   But he did not know, for example, where on the nature strip Mr Ryan and his daughter stood, whether they were up on the kerb, whether they were 12 inches back, whether they were a metre back.  Now, there is no doubt that sight lines were very difficult from a metre back, and that is something I need to come to in a moment, but his evidence that there was poor vision between the driver and the pedestrian is not very helpful evidence, because we do not know where he was assuming the pedestrian was standing.

Mr Woods reminds me, if I could take your Honours to page 86 in volume 1.  This relates to his “occurrence pad entry”.  That appears at line 33, 34, and he is then asked to have a look at the notebook, and then says, at line 47:

Will you go then again to the report of occurrence on page 2.  Do you see the last sentence in the narrative which is not in capital letters commencing “this was consistent”?

I will just turn up that particular exhibit for your Honour ‑ ‑ ‑

HEYDON J:   Page 873.

MR DAVIES:   Thank you, your Honour.  Yes, this was Constable Mills’ report of the accident and on page 873 in the centre column there:

Police attended the hospital and spoke with the father . . . daughter just walked out onto the roadway . . . He also told Police that he didn’t see the van until it was near them because of the shrubs on the grass footpath.  This was consistent with the version supplied by the driver of vehicle 2, in that the pedestrians were not visible because of the shrubs until he was very near them.

I was challenging him by the fact that there was nothing in Mr Pledge’s statement to the police that said anything about the visibility of the shrubs.  So this was Constable Mills drawing his own conclusion from nothing at all of substance on the driver’s version of events.

There were other questions which were put to him, and indeed Constable Schneiders as well, asking whether Mr Pledge had ever said anything of substance about the accident other than appeared in the notebook and Constable Schneiders said, “No”.  So the point of this is that Constable Mills has made some assumptions here which are not justified and then he gives this evidence about the poor sight lines from the driver’s point of view.

Now, your Honours, the only evidence of Mr Pledge about his reasons for not seeing the plaintiff is at page 423 in volume 2 and we say that the answer itself is significant and the circumstances in which it was given.  Up until this time, Mr Pledge had never used the shrubs and trees as the reason for the accident.  He was asked questions in‑chief by his counsel about the accident and it was never asked of him was his view obstructed or why he did not see the plaintiff.

Mr Morrison says that it was obviously not asked because we would have objected.  When the question was put to him in cross‑examination there was no objection to it and there would not have been a basis in‑chief.  What Mr Morrison puts to him at line 22 is:

You can proffer no explanation, can you, as to why you failed to see her until after the impact –

and one might think from the form of that question that Mr Morrison was expecting a negative answer, but the answer that was given was:

Only that my sight was obscured by the foliage.

Now, what that is really saying is “The only thing I can think of or speculate about is the foliage”.  It is not a clear answer that “It was the foliage that obscured my vision”; rather it is “All I can think of; it must have been the foliage”, but it does not explain why he does not see the child when she is on the roadway in front of him.

Now, when that evidence is taken with Mr Ryan’s evidence that if he had looked to the right he would have seen the vehicle, the photographs assume a greater importance intending to show that the real cause of the accident was not the bushes themselves but was the inattention of the driver and the fact that the child walked straight out onto the road without looking.

McHUGH ACJ:   But the term “real cause” is legal error.  You have to say “sole cause”.

MR DAVIES:   I am sorry, I used the term loosely.  The sole legal cause, or the sole legal causes were the driver’s inattention and the child’s contributory negligence in walking straight out onto the road.  Your Honours, we say therefore that there is not any Abalos point involved here.  The Court of Appeal did what it was bound to do, which was to look at the other evidence as well and see that it was not the foliage that was the cause of the accident, although, as Justice McHugh has said, putting the foliage there in the first place was a breach of our responsibility.

Could I then go to my third point, which is that the Court of Appeal was entirely justified in adopting the approach it did to determine what the cause of this accident was.

KIRBY J:   Just before you pass on to that, do I take it from the last observation that you accept a breach of duty of care but assert that it was not causally related to the plaintiff’s injury?  Is that the position you reach?

MR DAVIES:   That is right, your Honour.

HAYNE J:   Why was there a breach of a duty of care?

MR DAVIES:   Because of the position the trees were planted.

HAYNE J:   Creating the writ, is it not?

MR DAVIES:   Yes.

HAYNE J:   That is the essence of the breach, is it not?

MR DAVIES:   I accept that, your Honour.

HAYNE J:   Yes.

MR DAVIES:   But it does not lead inexorably to the view that we were the cause of the accident.

HAYNE J:   I understand that.

KIRBY J:   In fact, causation looms larger and larger in the path of plaintiffs.  If you look at recent cases it is often causation which is the plaintiff’s hurdle.

MR DAVIES:   Indeed.

KIRBY J:   Especially in medical cases, but in negligence generally.

MR DAVIES:   I was going to take your Honours to Chappel v Hart, but first if I could go to March v Stramare 171 CLR 522, to Justice Deane’s judgment, a judgment that is not often quoted when this case is referred to, and Justice Deane is discussing the “but for” test, and this is at about point 7 on the page, after the reference to Barnes v Hay.  He says:

The “but for” . . . test may well be a useful aid in determining whether something is properly to be seen as an effective cause of something else in that sense.  In particular, the test will commonly exclude causation for the purposes of the law of negligence if the answer to the question it poses is that the accident which caused the injuries would have occurred in the same way and with the same consequences in any event.

Then in Chappel v Hart 195 CLR 232 this is taken up again in three of the judgments. In Justice Gummow’s judgment first at page 257, paragraph 68, he says:

In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury to the laryngeal nerve and of the consequent risk of partial or total voice loss, the breach of duty will be taken to have caused the injury.

He expresses it in a negative way.  In Justice Kirby’s judgment at page 269 ‑ ‑ ‑

CALLINAN J:   That almost seems to put the onus on the defendant, does not it, to disprove cause?

MR DAVIES:   There is certainly an evidentiary onus, your Honour, which we accept, as I said to Justice McHugh.  At page 269, at point 3 halfway down the page, Justice Kirby says:

If, but for the negligent act or omission, the actual damage suffered by a plaintiff would not have occurred, it will often be possible, as a practical matter, to conclude the issue of causation in the plaintiff’s favour.  Similarly, where the damage would probably have happened anyway, it will often by possible to conclude that the act or omission was not the cause for legal purposes.

Then over at 271 again at point 5:

In certain circumstances, the appearance that there is a causal connection between the breach and the damage, arising from the application of the “but for” test and the proximity of the happening of the damage, has been displaced by a demonstration that . . . 

(e)  The event was ineffective as a cause of the damage, given that the event which occurred would probably have occurred in the same way even had the breach not happened.

Then there is a reference there to Daniels v Anderson where the New South Wales Court of Appeal said the same thing.

In Justice McHugh’s judgment - I need to go back here to page 245 at paragraph 28:

In principle, therefore, if the act or omission of the defendant has done no more than expose the plaintiff to a class of risk to which the plaintiff would have been exposed irrespective of the defendant’s act or omission, the law of torts should not require the defendant to pay damages.

The best exposition, if I may say, of the matter is in Justice Hayne’s judgment at page 282.

HAYNE J:   Bearing in mind that was dissenting.

KIRBY J:   I am not hurt; go ahead.

MR DAVIES:   I bear that in mind but the principle is, with respect, right, your Honour.  At paragraph 113:

The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission.  It is only by comparing these two sets of facts (one actual and one hypothetical) –

what I think your Honour might have called counterfactual –

that the influence or effect of the negligent act or omission can be judged.

Then there is a further exposition in paragraph 114 of the same point.

This was what the trial judge in the present case failed to do.  He came to a view about the bushes, the negligent act itself, and then said this contributed to the injury.  But what he did not do was say let us look at what the position would have been if these bushes had been a metre back, either planted a metre back or had been pruned so that they were.  The Court of Appeal then does the calculation which, as I have endeavoured to demonstrate, was based on all evidence in the case except one point which was assumed against us.

Your Honours, Mr Jackson talks about the tree planting guidelines being only guidelines.  Of course we accept that.  He talks about it being necessary to have them cut back to the stage where there are adequate sight lines but, as Justice Heydon I think was trying to elucidate, that does not clarify the position in the absence of another measurement.  This nature strip was 3.4 metres wide.  It was accepted that there had to be bushes to stop the glare of oncoming lights from the highway and that the bushes had to be sufficiently bushy enough to do that.  There is a potential problem on the highway side if the bushes are allowed to grow up to the kerb line on that side.  So if they are a metre back - and we accept that a metre might be an appropriate width - it does not leave very much room for there to be bushy bushes to stop the glare of the lights.  So any suggestion that they should have been cut back to a further point is just not realistic.

There is a balance of risks here.  There is the risk that cars proceeding either down the highway or up the service road will be dazzled, particularly cars on the service road which might be confronted with high beam lights on the highway.  On the other hand, there is the possibility that people might cross this nature strip not where it was intended they would do so by the provision of traffic lights, but at another point where they have run across five moving lanes of a highway.  That is what has to be balanced against the accepted risk of bushes to prevent glare to oncoming drivers.  So the guidelines say a metre for the trunk of the trees.  If that is right, then what the Court of Appeal has done has demonstrated beyond any doubt that this accident would have taken place in exactly the same way.

McHUGH ACJ:   But this argument about risk overlooks the fact that there were other alternatives to using bushes.  The trial judge, himself, said that:

as an alternative a solid screen type fence which could have been placed on the median strip effective so as to both prevent the passage of pedestrians and screen the headlight glare; or an arc weld type fence . . . could have been erected along the nature strip and vegetation planted as was in fact done to limit the headlight glare.

MR DAVIES:   But the trial judge does not find that we were negligent for not doing that.

McHUGH ACJ:   I am not sure that he does not.  He says they were alternatives that were open to you and you could have obviated or eliminated the risk by doing one or other of those things.

KIRBY J:   It sounds a horrible idea that the whole of Australia is going to be the subject not of foliage and Australian native bushes but of these artificial concrete fences.  I mean, that is the sort of thing I objected to in Romeo:  if every headland was going to have a big fence on it, the whole of the nation would be even more ugly than it is.

MR DAVIES:   Your Honour, it is not the aesthetic of it because there was evidence from experts that to put such a fence down on the highway side would, in itself, be a danger for people who, for example, broke down in the breakdown lane and were unable, easily, to get off the highway with traffic travelling past them at 80 kilometres an hour.  We do not, with respect, read the trial judge’s judgment as saying that we were negligent for not installing that barrier as opposed to the plants.

What the trial judge was saying is that the plants ought not have been planted where they were and they should have been trimmed, if they were, but, otherwise, they were an appropriate means of dealing with the problem.  In the trial judge’s judgment in paragraph 33 – I do not think your Honours need to go to the page; it is 1244 – he accepts that:

vegetation is a generally acceptable form of such screening.

But then goes on to make it clear that they should have been further back from the kerb line. 

So, your Honours, the Court of Appeal took the right approach. It did what section 75A and this Court’s decision in Fox v Percy required of it.  It looked to all the evidence and then it drew what it said were the correct inferences that ought to have been drawn and, particularly, to deal with the fact that the trial judge had never dealt with this position that is discussed in those judgments in Chappel v Hart, what would have been the position if we had not been negligent, and in those ‑ ‑ ‑

HAYNE J:   How do you say that is to be applied where there is more than one actor who has departed from a standard of care owed to others or to herself?  Do you test it successively?  That, I suspect, ends up with nobody responsible for anything, does it not?  You have the plaintiff who failed to take care for her own safety.  You have three defendants, then, each of whom is said to have failed to take care.  Exactly what counterfactual position do you create to test the question of causation in such a case?

MR DAVIES:   Your Honours, if I may answer it in this way:  it is undoubted that the movement in the parking bays was something directly related to this accident in a legally causal sense.  One does not have to go to the trees or the parking bay or the lack of a sign or the lack of attention and deal with each one of them and, as your Honour says, conclude therefore that nobody is negligent.  But in the present case, if the trees had been planted appropriately and this accident would have taken place in the same way, then the legal test of causation is not satisfied and it does not matter whether you take that in addition to the other matters or singly.  You cannot say, for example, about the parking bays, that this accident would have happened in the same way had it not been for them because it was the activity of a truck moving backwards and another car approaching that everybody’s attention was concentrated upon.

Why I cannot give your Honour a clear test to answer that question, the matter will not arise in this case, we say.  The plaintiff will not be left without a remedy, nor for that matter – well, I will not say any more than that.  What is clear is that the driver was negligent and does not come to this Court to say otherwise.  Those are our submissions, if your Honours please.

McHUGH ACJ:   Thank you, Mr Davies.

KIRBY J:   Could I just ask you, there is a mention in some of the submissions - I think this was ruled against you below on the pleadings and on the merits - about the practicalities and the costs of, as it were, supervising the planting and maintenance of the foliage.  Now, you are not responsible for the maintenance, as I understand it?

MR DAVIES:   No.

KIRBY J:   As to the planting, you have conceded that there was a duty of care which you breached?

MR DAVIES:   Yes.

KIRBY J:   So you do not raise any argument on that basis at all?

MR DAVIES:   No, your Honour, we do not raise that.

KIRBY J:   If that is going to be relevant at all, if it can be on the pleadings, that will be Mr Hislop’s argument.

MR DAVIES:   Yes.  May I say, your Honours, that we take the view that if the appeals are successful, that the matter will have to go back to the Court of Appeal to determine a number of matters.  Certainly, Mr Hislop has things to say about that, but also the question of any apportionment based on the view that your Honours come to.

CALLINAN J:   You disagree then with Mr Jackson’s proposition that if the Court of Appeal’s view about the warning sign and the angle parking were to be accepted by this Court but that, for example, the view were taken that the Court of Appeal erred in relation to the foliage, his client’s responsibility should be no more than 50 per cent, should indeed be 50 per cent?  You do not agree with that; you say the whole thing should go back?

MR DAVIES:   We say that the whole thing should go back to the Court of Appeal.

KIRBY J:   You have not responded to the arguments relating to the suggested miscarriage of the discretion on costs.

MR DAVIES:   That is something that does not really concern us, with respect, your Honour.

KIRBY J:   The Bullock order was not sought against your client?

MR DAVIES:   That is really between the driver and the plaintiff in the matter as to who should pay our costs if we are successful.

KIRBY J:   I see.  It is a matter of indifference to you as long as you get your costs?

MR DAVIES:   That is so, your Honour.

KIRBY J:   Very well.

McHUGH ACJ:   Thank you, Mr Davies.  Yes, Mr Hislop.

MR HISLOP   If it please your Honours, unlike Mr Davies, the Council does dispute that it owed a duty of care, that it was in breach.  It does not accept that the RTA’s liability is purely in respect of the planning of the median area, rather, its obligation extended to maintenance, and it was so held in the court below.  Those, and a number of other matters, including the question of apportionment, were the subject of issues which were before the Court of Appeal and which, by reason of the way in which that court decided the matter, it was unnecessary for them to determine. 

They are the subject of a notice of contention here to protect the position but, in our submission, should this Court uphold the appeal, it will be necessary for the matter to be returned to the Court of Appeal for all of those issues to be determined as it may be that, notwithstanding the determination of the matter here, the Council would still be entitled to a verdict in its favour.

KIRBY J:   Do you contend that there was no duty of care?

MR HISLOP   Yes, we do, your Honour, and we would contend there was no breach.  There are a lot of factual issues that involve the non‑handover of the median area to the Council, among other matters.  It was never established that there was any handover, we would say, of the median ‑ ‑ ‑

KIRBY J:   Do you actually send your trucks in with snippers and snip away at the bushes?

MR HISLOP   They did, on occasions, not in this particular part of the strip.

KIRBY J:   You were just doing that as a friendly local council?

MR HISLOP   No, your Honour, but what we say is a quite different matter between doing an occasional work there in response to some particular request or other, as opposed to undertaking an ongoing duty to maintain, including duties of inspection and the like.  As I say, there is also this question of handover, and it was never established that that had occurred. 

There are other issues – I do not want to unnecessarily take the Court’s time up – including questions of resources and the effect of those on both duty, scope of duty and breach, and his Honour the trial judge did not permit those issues to be agitated.

KIRBY J:   He said they were outside your pleading.

MR HISLOP   He said that, your Honour, but we would dispute that.  We would say that can hardly be the case in view of matters which have been permitted since Wyong v Shirt to be agitated on the question of breach.

KIRBY J:   Just explain it to me.  The Court of Appeal did not come to this because of its view that it took on the question of breach, so it did not have to consider the question of causation.  It did not have to consider the other questions in your case.

MR HISLOP   That is so, your Honour, and I was going to go on to say that, indeed, Mr Justice Ipp says as much in his judgment, that for that reason, it was unnecessary to consider these other matters.

CALLINAN J:   Mr Hislop, could you provide us with a list of outstanding issues?

MR HISLOP   What we have done – yes, your Honour, is the short answer, but to a certain extent ‑ ‑ ‑

CALLINAN J:   Is it there already, is it?

MR HISLOP   We have put some already in ‑ ‑ ‑

CALLINAN J:   It would be handy to have a comprehensive list of what you say were the issues before the trial judge, what were the issues before the Court of Appeal and which of them remain to be resolved if this appeal be allowed.

MR HISLOP:   Yes.  We can do that by a further document if it would assist your Honours.  If we could have some little time to prepare that and forward it to the Court.

Might I then turn to the two matters which are directly put against the Council, that is, it would seem the question of signage and, secondly, the question of the 90 degree parking bays.  If I could deal first with the question of signage and if I could take the Court to the judgment of the trial judge in volume 6 of the appeal books at page 1248.

McHUGH ACJ:   We need not hear you on the question of signage, Mr Hislop.

MR HISLOP:   May it please the Court.  I will move then to the question of the parking bay.  In relation to this, it is appropriate to go first to the decision of the trial judge to see on what basis he reached the conclusion that he did and what that conclusion was.  If I could take the Court again to volume 6 and in particular commencing at line 15.  What his Honour did there ‑ ‑ ‑

HAYNE J:   What page?

MR HISLOP:   I am sorry, your Honour, it is at page 1247, at line 15, commencing thereat.  His Honour refers to the parking bay ‑ ‑ ‑

KIRBY J:   Do you accept that you were responsible for the parking?  I mean, you have disputed your responsibility for the foliage but did you dispute – did you reserve the question of your responsibility for the parking or do you accept that you are responsible?

MR HISLOP:   No, we did not.  Yes, your Honour.  We accept that we were responsible for the parking bay being built, if that is the correct word.

KIRBY J:   These – I will not ask you - you accept you were responsible, very well.

MR HISLOP:   We certainly accept it was built by or on behalf of the Council, yes.  What his Honour says in his judgment at the reference to which I have taken the Court at about line 24 is that:

a relevant consideration for the provision of 90^o angle parking was the width of the carriageway –

He makes reference to various clauses in an Australian standard.  He then continues at paragraph 40:

Having regard to those standards and the opinions expressed by the expert witness Mr Wingrove, I am satisfied that, as the service road was only 7.4 metres wide from kerb to kerb, it was negligent design to provide for 90^o angle parking, because in those circumstances vehicles reversing out of the parking bay, even if intending to travel south on the service road, necessarily had to back out onto the northbound (or opposite) side of the service road.  This created a potential hazard –

That seems to be the basis then on which his Honour the trial judge reached his conclusion as to the parking bays, namely, the width of the carriageway made it necessary in all cases that the vehicle would back out onto the incorrect side of the road.

Now, the evidence of Mr Wingrove was relied upon by his Honour, but if we go to that evidence it is apparent that he did not agree or did not have the same view as the trial judge in that regard.  If I could take the Court to the first appeal book at page 250, line 13, where Mr Wingrove is asked a question in relation to the reversing back from the service road parking bay, whether it has to pass to the opposite side of the road, and his answer at line 16 is:

Doesn’t have to, but it’s highly likely it may.  It depends on what’s next to it when it’s parked.

Q.  If the car park was full or substantially full?
A.  If the car park was at capacity or the adjoining parking bays are full, that would be more likely the case, but it doesn’t necessarily have to be that, it goes to the incorrect side of the road.

So what he is saying is even in the event of the car park being totally full, it is still not necessarily the case that the vehicle would go to the incorrect side of the road and less so when the parking lot is not completely full.  So the first and really the only basis for his Honour’s conclusion would not seem to accord with the evidence of the expert upon whom he seeks to rely in this regard.

HAYNE J:   You have to read it in conjunction with his subsequent answers on that page too, I would have thought.  Do not stay to look at them, but there is a whole passage exploring the subject.

MR HISLOP:   Yes, but, with respect, your Honour, I think it still leaves the basic situation as stated, with it not necessarily being the case.  The standard that is referred to is found in volume 3 of the appeal books at 588.  At page 590 at about line 35 one has the reference to paragraph 14.4.3 to which his Honour had made reference when speaking of the width of the carriageway.  One sees there that there are some six matters which are elucidated as being the warrants for angle parking, one of which is the width of the carriageway.  Mr Wingrove’s evidence in this regard is at page 326.

KIRBY J:   Does this have statutory basis, this document?

MR HISLOP:   No, it does not, your Honour, it is purely a guide and that is one of the relevant matters.

KIRBY J:   How does one refer to this document?  It sort of just starts in the middle of page 71 on page 590.

MR HISLOP:   I am sorry, your Honour.

KIRBY J:   The document you just took us to is obviously a longer document.  At 590 it starts with page 71.  What is the proper reference to the document?

HAYNE J:   Is it properly described in the index as being Part 2 of Australian Standard AS1742?

MR HISLOP:   Yes, that is correct, your Honour.

KIRBY J:   Who makes it?

MR HISLOP:   That is not revealed by the document which has been tendered, your Honour.

KIRBY J:   Any old standard will do.  Just throw it in the appeal book.  Put it in before the judge.

HEYDON J:   It must be made by the Standards Association of Australia or whatever the name of the body was in 1978, would that not be so?

MR HISLOP:   Yes, thank you, your Honour.  At page 326 at line 25 Mr Wingrove sets out or deals with the various other matters, or some of them, referred to in the standard.  He indicates that he does not have the traffic volumes or other matters which are referred to there and says at 327, line 5, that he thought:

as a traffic engineer I’ve got a pretty good idea of what sort of activities take place, what are the signs I have observed over a period of time.

He again continues, he did not know the number of people, he did not know how many used the nature strip, and so on.  At 327 at line 35 he said:

it is a service road for people in the immediate locality of the service road?
A.   Yes, it is a service road for the people who live there who probably previously may well have had access straight on to the highway.

So it is purely a local service road.  At page 328 at line 20 to line 45 he said:

that an assessment of whether there has been strict compliance with the standard requires someone to know the width of each parking bay?
A.   Yes.

Q.   And that as a general proposition 90-degree angle parking is permitted in streets which carry predominantly local traffic?
A.   Yes.  I can understand what you’re getting at, yes.

Q.   It is also the case, it is not, that the standard to which you refer and had regard when preparing your report, being the 1991 standard I think – or it might have been the 1989 standard – do you recall which one?
A.   I used two standards.

Q.   And the standard to which you referred was not one that required that the width from the median point on the roadway to the kerb side on the roadway be always complied with, was it?
A.   There’s nothing to say you have to always comply to the standard.

KIRBY J:   Is the standard that you took us to in 590 the earlier or the later standard, the 1991 standard or the 1989 standard?

MR HISLOP:   Well, it is even earlier, your Honour, than either of the standards which he said he was working from.  This was a standard ‑ ‑ ‑

HEYDON J:   In 1978

MR HISLOP:   ‑ ‑ ‑ in 1978, as appears from the top right-hand corner of the pages.  So it was not even the standard which he had purported to have been working from.

KIRBY J:   Why should we be paying any attention to it whatsoever?

MR HISLOP:   Indeed, your Honour. 

HEYDON J:   It seems to have been tendered because the re-examiner was interested in pedestrian and traffic separation, which seems to be quite distinct from this question of the correct angle.  Page 346 was where it was tendered.

MR HISLOP:   Yes, it was tendered in reply.  Mr Wingrove also said in his evidence at volume 2 at 324, line 30 that:

in the absence of a parking apron outside the hardware, persons driving vehicles to the hardware would necessarily have to park on the street; is that correct?
A.   If that’s the only area to park, yes.

Q.   And the fact that people park on the street leads to a conflict between pedestrians, parked cars and moving vehicles.
A.   Yes.

Q.   And outside this particular hardware that sort of conflict was a possible conflict.
A.   It was.  That sort of conflict still existed outside the 90-degree parking area.

Q.   I understand your views on that.  In the absence of that parking apron and assuming that the apron was not in place, if in the circumstances of that hardware shop continuing to operate, your belief is that there would have been the potential for conflict between pedestrians, vehicles parked outside the hardware and vehicles travelling along the service road.
A.   Yes, if the authorities allowed parking to stay, yes.

So he seems to be saying there that even if you had ordinary parallel parking, you would still have that sort of conflict arising.

Q.   And in the circumstances of cars parking, in this instance on the service road, the potential for conflict would be even greater than in other circumstances for this reason, that persons coming from the hardware are likely to be carrying bulky objects.
A.   I suppose I’m trying to quantify the conflict.  The number of vehicles parked outside would be less, so there would not be so many people, but the nature of the business itself is likely to create a problem because of the product that’s sold there, yes.

Q.   And it’s therefore preferable to get people and cars off the street so far as is possible?
A.   It’s always better to get people and cars off the street, if it’s possible, yes.

Q.   And in the circumstances of this case, one of the parameters was the position of the hardware.
A.   Well, to me that was the parameter that controlled the parking.

Q.   That’s right.  The location of the hardware did not allow the creation of a bigger apron to accommodate the cars because the hardware was close up against the front of the apron; is that right?
A.   Yes.  If memory serves me correctly, it took almost all the available verge space between the street kerbing boundary and the property line.

Q.   And the available space remaining was for a narrow footpath - -
A.   Yes.

So what it really came down to was that the standard was in no way binding upon the Council.  It was a matter for it to weigh up many factors which included the public amenity, the need to get the parked vehicles off the streets so far as possible, to weigh all of those matters and then to make a decision balancing all of those.

KIRBY J:   Now, even if it is at an angle parking, there is still a factor that the driver has to pay attention to of a vehicle backing.

MR HISLOP:   Yes.

KIRBY J:   I mean, I suppose it can be said that it marginally reduces the risk of intruding onto the other side of a narrow road.

MR HISLOP:   The margin would be pretty bare, your Honour, and particularly as Mr Wingrove says that even if it is parallel parking you would still have the same sort of conflict situation.

CALLINAN J:   But do you have the same problem?  You have people backing out of 90 degree parking, have you not?

MR HISLOP:   You may if they pull in, your Honour, yes.

CALLINAN J:   That, it seems to me, constitutes a special hazard.  They cannot see ‑ ‑ ‑

McHUGH ACJ:   That is what paragraph 14.3.1 of the standard says, that:

all forms of angle kerbside parking present a greater hazard than parallel parking.

MR HISLOP:   Yes.  But bear in mind that the Council has to provide a sufficient number of parking spots to service this shopping area.  It has to balance that up.  There is no suggestion there has ever been any accident in this place before and the circumstances of this singular accident occurring are quite unique, one would think, in the circumstances, and this type of parking area is not uncommon in many, many areas of Australia.  As we submit, the position remains that it creates an area of conflict whether a vehicle is backing or coming out sideways or if it is on a slight angle.  You still have a conflict which may cause a driver to at least put some of his vision toward that event.

The negligence here of the driver was that he looked totally to the right, thereby taking away any vision to his left in circumstances where his Honour found that was negligent and therefore something that he should not have done.  That conflict situation would arise no matter what the sort of situation.  What we really have here, it was just an ordinary common road activity.  Events occur on the roads where one has to look at what is occurring but while maintaining one’s forward vision.  This man did not retain his forward vision as he drove along and that resulted in the accident which occurred.  The driver was, of course, fully familiar with this area and well knew of all of the circumstances which might arise. 

The Court of Appeal in dealing with the matter, in our submission, were entitled to regard his Honour’s stated reasons as insufficient and in accordance with the requirements of section 75A to consider the matter itself and to reach appropriate conclusions and having reached appropriate conclusions it was bound then to give effect to them in its judgment. The relevant part of the judgment is at page 1285 at paragraph 71. At paragraph 70 he commences to discuss the parking bays. At paragraph 71 he deals with what the trial judge had said in this regard. Then, at 72 he says:

The Standard was not mandatory, but was a guide, only.  Matters such as width of carriageway, abutting land use, speed characteristics and vehicle volumes were all relevant in deciding whether to permit angle parking.  Generally 90 degree angle parking was permitted in streets that carried predominantly local traffic (such as the service road).  Nevertheless, according to the Standard, the width of the service road was such that only parallel parking should have been provided.

Mr Wingrove said:

“There is nothing to say you have to always comply to the Standard”.

This is manifest from the Standard itself.

74  In my view, neither the Standard nor the evidence of Mr Wingrove justified the finding that the provision of 90 degree angle parking on the service road was negligent.

McHUGH ACJ:   That is just an assertion.  If you analyse it, why did not his evidence justify it?  He said that there was a hazard – created a hazard.

MR HISLOP   It was no different a hazard than many others which one would encounter on the road, if you so call it.

McHUGH ACJ:   Why?  If there is a foreseeable risk of injury which can be prevented by the exercise of reasonable care or a reasonably practicable alternative, then there is a prima facie case of negligence.  Here, there was a definite foreseeable risk of injury from vehicles backing out, even though apparently that is the preferred way of parking, better than the alternative, and it could have been avoided by even a degree of angle parking less than 90 degrees, or at least the risk could have been reduced, and you do not need standards, particularly when you have an expert witness like Mr Wingrove.  He has given the evidence about the risk and about the alternatives and the judge said that constituted negligence.  What is the matter with that?

MR HISLOP   The basis for his Honour the trial judge’s finding was the very limited one, as I indicated, the width of the parking area and the fact, he said, that vehicles reversing out of the parking bay necessarily had to back onto the other side of the road.  It was a very narrow basis upon which the trial judge made his conclusion.  It conflicted in relation to Mr Wingrove who said that they did not necessarily have to back out.  If you have vehicles at an angle, you still would have them backing out and causing an activity on the road that regard would have to be had to.

So the court was entitled to reconsider the matter and on doing so reach the conclusions which it did, which were well based, in our submission, when one has regard to the many other considerations that should and were taken into account by the Court of Appeal.

HAYNE J:   Do we therefore read the first line of paragraph 74 as amounting to saying that Justice Ipp preferred the view that the provision of 90 degree angle parking was not negligent?

MR HISLOP   Yes.

HAYNE J:   The reference to “neither the Standard nor the evidence of Mr Wingrove justified the finding” was an unnecessary flourish?

MR HISLOP   It was unnecessary for him perhaps to go that far, but that conclusion was one in any event justified, in our submission.  He was entitled, and indeed bound, to review the whole of the evidence and reach the conclusion which he did.  That conclusion, in our submission, should stand, having regard to the decision in Fox v Percy and the approach required by section 75A. However, in any event, be that as it may, as his Honour Justice Ipp says in his judgment at paragraph 75:

the provision of the parking bays was not causative of the collision.

The matter was a situation with which “He had ample time to take appropriate action.”  It was a matter which was:

experienced in the ordinary course of suburban driving . . . hazard was simply one of a kind that occurs frequently in everyday life.

McHUGH ACJ:   With great respect to his Honour, that is just simply unacceptable.  You are on solid ground in relation to paragraph 74 but I am afraid you will have to talk long and hard to persuade me that what occurs from 75 onwards can be justified.  The fact that there are hazards there does not stop you from being negligent and does not stop your hazard from being the cause of the damage that follows.

MR HISLOP:   Your Honour, there are many things that one encounters as a motorist.

McHUGH ACJ:   Of course there are, but if you create something through negligence, you just do not avoid responsibility by saying “Somebody can come along and avoid my negligence”.

HAYNE J:   Is not what his Honour says in paragraph 75 and following flatly contrary to the holding of the Court in March v Stramare?  If what his Honour says is right there, March v Stramare is wrongly decided, is it not?

MR HISLOP:   We submit not, your Honour, because the mere fact ‑ ‑ ‑

McHUGH ACJ:   You could not get worse negligence than what happened there.  They just left a truck right there in the middle of a busy road and then along comes this driver and he sees it there, or he should have seen it, and he goes ‑ ‑ ‑

HAYNE J:   He saw two of them, that was the difficulty.

McHUGH ACJ:   Yes.  He went straight into it and said nevertheless the original negligence was the cause.

MR HISLOP:   Well, I have already put the proposition that there was no negligence here but, even assuming that there was, I think that although his Honour is framing it as causative in paragraph 75 and continuing, it also has an impact in relation to the question of negligence because it is a failure to take reasonable care and this merely created a necessary activity, namely cars moving in a parking area, no matter how they are parked.  That was what was created and that was purely something encountered in the ordinary course of suburban driving, as his Honour said, and it was simply one of those things, as is made apparent from paragraph 78, that because of its being a normal event should not be regarded as being either negligent or as causative of the collision and he aligns it with the ordinary events which one would come upon in normal driving practice.  So we say that that actually has an impact both upon negligence as well as upon causation.

The other matters which are relevant also is the fact that Mr Wingrove in his report, which was served for the purposes of the case, made no mention of any breach of any standard and there was also other evidence from Mr Winning, another expert in the matter, that there was no breach of the relevant standard.  His report is at volume 5, 1095 at lines 35 to 40.  One sees that he is referring to a different part of the standard than that referred to by Mr Wingrove.  In relation to that ‑ ‑ ‑

HAYNE J:   He is referring in fact to a different standard, is he not?

MR HISLOP:   I think that is so, your Honour.

HAYNE J:   A generation or two generations beyond that which appears at 590,  I think.

MR HISLOP:   Yes, he appears to be referring to the standard that Mr Wingrove had referred to in his evidence, as opposed to the one that was tendered, and he is referring to a part of that standard which would indicate that the minimum width required was reached in the circumstance of this particular service road. 

KIRBY J:   I do not quite know how to put my finger on this because there is a bit of a problem for you in March, but it does seem very remote that a driver is backing from the 90 degree angle parking in a rather ordinary sort of way and that somehow this is supposed to render you liable for an incident that occurs when a little girl moves away from her father and walks onto the carriageway.  I do not quite know how one reconciles March and the feeling that this is too remote or it is not really fault‑based.  It just does not seem – whether you say it is not really foreseeable that this will happen.  It just does not seem to be linked causally.  I suppose, you get no more satisfaction in any issue of causation than talking of commonsense – Justice Gummow’s mantra.  I mean, leaving the car in the middle of a road is one thing, but just backing a car out of a suburban car space, of which ‑ there may not be millions.  I may have overstated it, but there would be hundreds of thousands of them.  It just does not seem to be really a very significant act, from a negligence point of view.

MR HISLOP   Yes, your Honour, the concept that I am trying to get across that, really, it is just such an every day activity and in this case the vehicle ‑ ‑ ‑

McHUGH ACJ:   But it is not an every day occurrence and, with great respect, your argument is overlooking the fundamental point that his Honour fastened onto, namely, that it is in a context where pedestrians are coming across the nature strip and, therefore, it distracted the driver’s attention from the pedestrians.  That was what you should have foreseen and that was what it was open to you to avoid.  That was the way the trial judge found.  He said that it distracted drivers, particularly the possibility of pedestrians moving off the nature strip.  So it was not an every day situation.  You are not in some wide street in a country town in New South Wales where angle parking is very common.

MR HISLOP   Your Honour, at the time the 90 degree angle parking is built, there is no knowledge that anyone is going to come across any median strip.  That is point one.  Point two, on the question of foreseeability, it has to be the foreseeability of the Council.  If one wants to introduce the evidence, there was evidence given by a Mr Dring, who was an employee of the hardware store, who had been there, I think, for some 16 years, and said he had never seen anyone come across that part of the area.

KIRBY J:   That does not seem to square with what you see in the photographs.

McHUGH ACJ:   And what was called the well‑worn path.

MR HISLOP   I know it was called the well ‑ ‑ ‑

KIRBY J:   It looks a well‑worn path.  It looks very well‑worn – very, very well‑worn.

MR HISLOP   It was called that.

KIRBY J:   The man must have been blind.  He was not paying ‑ ‑ ‑

HAYNE J:   He was attending to his duties in the hardware shop and not staring out the window.

MR HISLOP   Well, one would have thought he might have been looking for prospective customers and would have some idea from whence they approached, your Honour.

KIRBY J:   He did not need to.  He was busy. 

HAYNE J:   Come in spinner.

MR HISLOP   So, in our submission, his evidence has to be given weight, so too does the evidence of Mr Pledge, I think it was, who said that he had not seen anyone coming across there on the occasions he had driven along that road or visited the hardware.  The fact is that this particular so‑called well‑worn track was actually an area which was free or clear of scrub and, thus, may have simply been the effects of sun and that coming down, unfiltered by the bushes and the like.  I think there is an adjoining patch that looks somewhat similar, even though it is not on a pathway.

So, when one looks at foreseeability, there is nothing to indicate the Council at the time of putting in this 90 degree angle parking should have foreseen that people would come across, and in this case the act that causes it is the father releasing his hold on the lass’ hand.  It is a unique event, in our submission, that occurred.  The mere fact of putting in 90 degree angle parking at the time it was put in, in our submission, should not be regarded as negligence.  More importantly, it was open to the Court of Appeal to so hold and this Court should not interfere in relation to it.  In any event, of course, foreseeability of harm is not in itself sufficient to give rise to any duty of care.

KIRBY J:   Do you concede that it was foreseeable by the undemanding test of foreseeability?

MR HISLOP:   Not to the Council, your Honour.

KIRBY J:   You are not conceding anything today are you, Mr Hislop, not even the undemanding test of foreseeability?  No foreseeability, no duty, no breach, no causation, nothing but costs.

MR HISLOP:   Your Honour, the concept I am trying to get at is that one must look at it when they were building this 90 degree parking area and, looked at then, why should they foresee that the event such as occurred was likely to occur?  They had to balance up a whole host of matters and in doing so they determined that it was appropriate to put in this area as they did and, in our submission, it just should not be regarded as being negligent to have done so at that time, and it remained there.

CALLINAN J:   Was there any evidence whether it had been land that belonged to the hardware proprietor originally?

MR HISLOP:   The evidence was, your Honour, that it had previously belonged to the hardware ‑ ‑ ‑

CALLINAN J:   And he would have had to have provided it as a condition of development approval probably.

MR HISLOP:   Possibly.  It was actually I think resumed, your Honour.

CALLINAN J:   Resumed?

MR HISLOP:   Yes.  Of relevance in the overall context, is it is being used by local people, it is a local service road and they would have full knowledge of the circumstances arising in relation to that area.  That concludes my submissions, your Honours.

KIRBY J:   Were you going to say anything about the cost issue, or do you accept that that was not pleaded and not properly therefore before ‑ ‑ ‑

MR HISLOP:   Does your Honour mean the Sanderson order question?

KIRBY J:   This is the question of the burden on the Council of having to go around snipping all the trees and ‑ ‑ ‑

MR HISLOP:   Yes, your Honour.  I thought that that was within, and indeed it is, the confines of the matters in contention which were not decided in the Court of Appeal, and that is a matter which we would dispute.

KIRBY J:   Just make that clear for me.  Did the Court of Appeal not decide in your favour on the basis of causation in respect of the foliage?

MR HISLOP:   The Court of Appeal decided in favour of the Council on the question of foliage and, having so decided, Mr Justice Ipp then said in volume 7, page 1287, line 15:

In the circumstances, I consider that the appeals should be upheld.  There is no need to deal with the other issues that arise and the cross appeals fall away.

Then he makes orders.  So, for that reason, your Honours, there are a number of matters which were raised in the Court of Appeal which were not the subject of any determination.  That includes the matter to which your Honour made reference of resources and it is our submission that those matters, in the event that the appeals were successful, should be the subject of determination by the Court of Appeal.

KIRBY J:   Have you said everything you want to say in relation to the issue of foliage so far as it affected your client?

MR HISLOP:   Subject to the matters that are in the notice of contention which would be determined in the Court of Appeal if the appeal was otherwise lost.  We would rely upon our written submissions and adopt what my learned friend Mr Davies said in relation to the question of the foliage.

KIRBY J:   But his client is in a slightly different position.  Subject to these matters in the notice of contention, his client merely placed the trees.  As I understand the plaintiff’s case, it was that you were responsible for trimming the trees and it was the lack of trimming, in a sense, rather than the placement which on one view was the cause and it is the very cause that the father complained of immediately to the police when they came to him in the hospital.  It seems to me, at least on the findings of Justice Dunford, to be the weakness in the case as far as the respondents are concerned, especially you.

MR HISLOP:   Your Honour, the situation is that the issue between the RTA and the Council was determined by Justice Dunford finding that the RTA was liable for the setting up, if you like, of the median area and also for the maintenance of it, that it could not divest itself of that obligation, so it was found liable on both bases.  The Council was found liable on the basis that it had an obligation to maintain.  That obligation is disputed.  It too falls within the area of matters not decided in the court below which, in our submission, would go back because it involves factual and other matters.

Essentially, we rely upon the matters in our notice of contention as being matters not determined in the Court of Appeal which would have to go back in the event that the appeal was a successful one.  On the question overall of the foliage, in our submission, it is quite clear and the trial judge so held in paragraph 25 – this is at 1241, volume 6 at line 45 – that had Mr Pledge:

been keeping a proper lookout on both sides he would, notwithstanding the foliage, have been able to see the plaintiff in sufficient time to stop or swerve to avoid her, at least if he had been travelling at a more appropriate speed –

So there is a clear finding, in our submission, by the trial judge that if he had been keeping a proper lookout the accident would have been avoided, notwithstanding the foliage.  When one looks at photograph C2, in our submission, it is quite clear that there was sufficient stopping distance for him even if the foliage was there to either stop or swerve and thus avoid the collision because the cause of the accident, in our submission, even on Justice Dunford’s findings, was the failure by the driver to keep a proper lookout, notwithstanding the foliage.

HAYNE J:   May I just understand one corollary of your submission, that if the appeal were lost the matters in your notice of contention would go back to the Court of Appeal for determination by that court, is that right?

MR HISLOP:   Yes, your Honour.

HAYNE J:   On the hypothesis we are considering, would that come down to a fight between Council and RTA in which the plaintiff and driver were no longer interested?

MR HISLOP:   I think the driver would have an interest in when the matter goes back, if it should go back, your Honour, on the basis of the assessment of apportionment and on a question under the Motor Accidents Act and whether damages should be determined under that or another Act.

McHUGH ACJ:   The plaintiff would also have an interest, would she not, because you claim no negligence at all, do you not?

MR HISLOP:   Yes, that is so, your Honour.

KIRBY J:   No duty, no foreseeability, nothing.  By “lost”, you took his Honour’s question to mean if you lost the appeal.  If the plaintiff loses the appeal, if the appellants lose, end of story, is that not so?

MR HISLOP:   That is so, yes.

CALLINAN J:   Why would the plaintiff have an interest, do you say?

MR HISLOP:   In a sense she would not because she has a verdict against the driver and she also, if the appeal was lost, would have a verdict against the RTA, so she would have no ‑ ‑ ‑

CALLINAN J:   Her 10 per cent contribution, is that thrown into the melting pot at all?

MR HISLOP:   No, that is not thrown into the melting pot, your Honour.

McHUGH ACJ:   I thought you were saying - I suppose it is what you mean by if the appeal is lost.  I was thinking if it was lost from your point of view but maybe Justice Hayne ‑ ‑ ‑

HAYNE J:   No, no.  If it were found in this Court that the Court of Appeal was wrong on its conclusion about causation ‑ ‑ ‑

KIRBY J:   The appeal is won.

HAYNE J:   So if the appellants succeed in their appeal, you say there are issues raised by the notice of contention that go back to the Court of Appeal.  That I understand.

MR HISLOP:   Yes, that is so, your Honour.

HAYNE J:   In that event, if causation is held in effect to have been established, is it not left for the RTA and the Council to fight out who owed the duty and who is responsible?

MR HISLOP:   Yes, save as to this extent, that we would submit that we had no duty and we were not in breach.

McHUGH ACJ:   But the plaintiff would have an interest in that, would she not?  If the appeal is successful, the plaintiff succeeds, as against you, in this Court, but in the Court of Appeal you would want to say she should not because of ‑ ‑ ‑

KIRBY J:   Your intransigence.

McHUGH ACJ:   ‑ ‑ ‑ the points raised in your notice of contention.

MR HISLOP:   Yes.

HAYNE J:   But she would hold a verdict against the RTA, would she not?

MR HISLOP:   That is as I understand it on the admissions that were made by Mr Davies, yes, your Honour.

HAYNE J:   Yes.

MR HISLOP:   To that extent, she has no pecuniary interest, as we would see it.

HAYNE J:   What is driving it, Mr Hislop, is a concern that any case that yoyos in the appellate system is undesirable.  I understand why you say these things have to go back to the Court of Appeal.  I just wanted to be a bit clearer in my own mind about what consequences might follow if that happened.  I think I understand.

KIRBY J:   The document you have promised Justice Callinan will make all of this crystal clear.

MR HISLOP:   Yes.

McHUGH ACJ:   That is a guarded answer.

MR HISLOP:   We do adopt the submissions in our notice of contention but we will provide a document that sets out what I understand Justice Callinan to want in that regard.  My learned junior points out that in the event the matter did go back to the Court of Appeal the question of costs here should await the determination of, ultimately, the Court of Appeal.

KIRBY J:   I do not see why that would be so.  If you lost here, if the appellants had been justified in coming here, they must get their costs of coming here.

HAYNE J:   It seemed a good idea at the time, the submission, Mr Hislop.

McHUGH ACJ:   It was a very bold submission.  Thank you, Mr Hislop.

KIRBY J:   That is still further indicating that the Council gives no ground in this case.

MR HISLOP:   May it please the Court, they are the submissions.

McHUGH ACJ:   Mr Jackson and Mr Morrison, is there going to be one single reply or are you each insisting on your right of reply?

MR JACKSON:   Well, I think we both want to say something, your Honour.

McHUGH ACJ:   Perhaps, strictly speaking, Mr Morrison should ‑ ‑ ‑

MR JACKSON:   Yes, your Honour, I am happy to do it either way.  It was simply that we are respondent to part of his appeal, that was all, but I do not want to say anything about it.

MR MORRISON:   Your Honours, if the matter were to go back and if the RTA and Council were to continue to maintain the argument which was put below but not determined by the Court of Appeal, namely, that the plaintiff’s damages should as against them be assessed under the Motor Accidents Act, then the plaintiff retains a very real interest in what happens in the Court of Appeal in the order of $1 million.

KIRBY J:   But could that Act apply to the claim that your client has against the two respondents?

MR MORRISON:   Although there is a Court of Appeal decision saying that it cannot and that the scheme is a third party scheme in respect of which the limitations under the Motor Accidents Act and Motor Accidents Compensation Act apply only to owners and drivers of motor vehicles that are negligent in the vehicle’s use, nonetheless they have steadfastly maintained that any motor accident brings the limitations on damages into play and the common law damages awarded by Mr Justice Dunford should not have been.  So my understanding is that they wish to continue to run that argument and the Court of Appeal did not deal with that.  They may strictly need leave because in a case called Scroop the Court of Appeal has already decided this matter adversely to the proposition they wish to put.

Your Honours, just a few other matters.  The fact that the RTA comes here saying that the Council was responsible for the maintenance of the foliage and the Council comes here saying the RTA was responsible for the maintenance of the foliage goes a long way to explaining what went wrong and why this accident occurred.  My learned friend Mr Davies submitted the RTA was not responsible for the maintenance.  Can I simply give your Honours some references.  At 794 the RTA offered to pay the Council to do the maintenance for the first six months after they had put the shrubs and trees in.  There is nothing produced by the Council or the RTA to show that that offer or that request was accepted.  At 492, there is discussion of the lack of a clear handover from the RTA to the Council and apparently that was not the usual practice.  Normally, there would have been a clear handover.

The RTA continued to do work even after the accident occurred.  At 975 they did work on 22 December 1995 and at 976 they did work on 2 January 1995.  The Council says they had no duty of care but they were involved not just in the maintenance of the nature strip but in its planning from the outset.  There was a joint planning meeting between the Council and the RTA, 598.  The Council produced their own plan which included the shrubbery, 1024.  There was evidence that it was usual for the Council ‑ ‑ ‑

McHUGH ACJ:   That shrubbery on 1024, is it in the strip between the service road and the highway, or was the shrubbery only required in respect of the parking area?

MR MORRISON:   No, this showed both the parking area - it was a Council plan and very similar to the RTA plan, produced at about the same time, but it actually showed ‑ ‑ ‑

McHUGH ACJ:   I remember looking at it.

MR MORRISON:   Yes.  The words on the Council plan which, clearly with an arrow, point to the nature strip where the accident occurred, say:

Provide Kerb Only around Garden Bed
Landscape with low shrubs

McHUGH ACJ:   I thought that referred merely to the parking area, but you say it refers to ‑ ‑ ‑

MR MORRISON:   That is on the other side of the road from the parking area.  In addition to that, the Council did work on various areas of the nature strip not very far from this, including at Kidman, the next street up, because of sight line problems there, and that appears between 602 and 612, where the Council sent work orders to their employees to do that work, to lop and trim.  After the accident, the evidence was at 437, line 35 to 438, line 30, that Council workers did the work of trimming which should have been done before the accident.  The Council called no one to say that it was purely a coincidence that that occurred.

Your Honours, my learned friend Mr Davies said that Mr Ryan did not look before the accident occurred.  That is, we would say, just not right.  At 141 in volume 1 of the appeal books commencing at line 45 appears this evidence from Mr Ryan.  Talking about the service road, he said:

At this point it was only a couple of metres.  I had actually stopped with the children to observe the activity in the area.  Once I had stopped I released the pressure on the children’s hand because the children used to tell me every time I crossed the street with them I held a tight firm hold on their hands and they used to complain.  At that point I recollect that Nadia withdrew her hand from mine, but Danielle remained intact with my hand.

Q.  What happened then?
A.  I turned to – as I recollect, I turned down to Danielle to see if she was okay and lifted my head and noticed that Nadia took a step away from me.  From the corner of my eye I saw something moving, a red object, through some shrubbery.

That was the relevant passage, but that was the point at which he had stopped to observe activity in the area.

HEYDON J:   Was not that looking at movements in front of the parking area of the hardware store and a vehicle approaching on the left-hand side?  Is not the issue whether he looked to the right?

MR MORRISON:    That is so, your Honour.  He says expressly that he observed those things.  He does not say that he did not look elsewhere.  It is apparent from the fact that he glimpsed the vehicle to the right that he did in fact look to the right, but nowhere is there evidence that he never looked to the right or failed to look around.  Clearly he had, just like Mr Pledge, some distractions at that point because there were other things to look at apart from the one vehicle which ultimately struck his daughter.

My learned friend, Mr Davies, said that Mr Ryan did not complain of problems with the visibility until court.  That was not so.  The occurrence pad entry, which occurs at 873, on the day of the accident says:

He also told Police that he didn’t see the van until it was near them because of the shrubs on the grass footpath.

KIRBY J:   Yes, we know all that.  You have made that ‑ ‑ ‑

MR MORRISON:    There is a similar statement 11 days later to the police at 666.  Mr Pledge similarly made an immediate complaint, and that appears at 873 and that appears in the same passage in the occurrence pad entry.

In the reference that was given to Justice Deane’s judgment at 522 in March v Stramare my learned friend, Mr Davies, was quoting from a passage in which his Honour was putting forward the arguments in favour of what was in effect the doctrine of last opportunity or the “but for” test and then in subsequent passages he put the contrary argument and ultimately rejected the very proposition that was read to this Court.

Finally, in respect of the RTA, the suggestion was made that people should have used the crossing and that the expectation was that the crossing would be used.  The crossing did not continue across the service road.  It was at the time totally legal for people to park on the Great Western Highway on either side, but in particular on the Sydney‑bound side, in which case there was no rational reason for them to walk 50 metres down to cross through the shrubbery at a different point when there was no pedestrian crossing to follow it across the service road.  It is apparent from the photographs, and indeed from the evidence I took your Honours to earlier, that it was at least as dangerous at that point for pedestrians as it was at the point at which the accident occurred.

In respect of the Council and the suggestion of no duty of care, I have dealt with the evidence on that, but as to parking, there was at 346 at line 35 evidence from Mr Wingrove that the 1978 standard was in effect at the time of this accident, and that evidence was not challenged.  That is, that the subsequent standards adopted the same diagram which appears at 593.  It might be helpful, and I will not take up your Honours’ time now, but to look at that diagram which has – perhaps it is worth looking at just very briefly, because your Honours will see that this road, in fact, did not justify parallel parking, let alone 90 degree angle parking.

McHUGH ACJ:   Yes, we were taken to that this morning.

MR MORRISON:   Yes.  “Carriageway width” is shown on the left from “separation line or median to kerb line”; that is, it is the distance of a single carriageway.  In order to justify parallel parking for average speeds of 50 kilometres an hour or less, each lane had to be six metres wide.  Then, as the lane width increases, you could justify 30, then 45, then 60 and then 90 degree angle parking.  If the average speed was greater than 50 kilometres an hour, each lane required a further 1.2 metres of additional width.  This road did not justify parking on it at all, let alone the 90 degree angle parking.  So that what was involved was not just a marginal breach of the Australian standard but a gross breach of the standard which had been prevailing since 1978 and which was in force at the time.

Your Honours, the only other matter was foreseeability.  We just draw attention to the matters set out in our written submissions on that issue.

McHUGH ACJ:   Thank you, Mr Morrison.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal with a number of somewhat disparate matters.  First of all, in relation to the question of a view, the only passage to which your Honours have not been referred, I think, is in volume 1 at page 78 where the judge records that he drove along the road at the request of the parties. 

Secondly, your Honours were referred to the photograph which appears as exhibit X2 in volume 5 at page 963.  That was a photograph taken after the accident.  Your Honours, could we say, there had been a heavy cutting back of the vegetation and the extent of the cutback after the accident appears from the evidence in volume 2 at page 437, commencing at about line 24, where Mr Dring said:

The vegetation has been reduced probably by about 40 per cent.

Your Honours will see in what goes through the remainder of that page and to about line 31 on page 438 that they appeared to be persons who were working for the Council.  If one follows that through to page 439, about line 25, he spoke to the leading hand, the Council employee whom he knew, and said the reduction was 30 to 40 per cent.  So that was the position at the time that photograph was taken. 

Reference was made to what Mr Ryan would have seen.  If I could go to volume 1 at page 216.  The passage your Honours were referred to is, I think, about line 21 through to about line 28.  The passage really commences a little earlier and finishes a little later than that.  If one looks at about line 16, he was asked:

It’s clear, isn’t it, Mr Ryan, that if you had looked deliberately at your height to the right where that vehicle was coming from, you would have been able to see that vehicle for some distance coming up the road?
A.   No.

Q.   You could see through the bushes down some distance down the road?
A.   There was two bushes to our right‑hand side if you recall –

and then he described those and said:

there was a taller tree or bush . . . but it actually impeded my immediate view to the right‑hand side.

Then, your Honours, if one goes through to line 40:

Q.   Had you been looking through there ‑

that is through the actual foliage ‑

you would also have been able to see it?
A.   Correct.

So it involved looking through the foliage. 

Your Honours, reference also was made to the height of the vegetation - four feet I think was suggested.  The relevant passage is at page 126 in volume 1.  The passage commences at about line 9 and goes through to line 34.  He was looking at exhibit C7, which is at page 642 in volume 3.  Now, he speaks of two pieces of vegetation and says that the height of those two pieces to the highest point is approximately 1.1 to 1.2 metres.  So he is speaking only of the two bushes to the left of the photographer in C7.  Then your Honours will see about line 24:

Q.   And then there are higher bushes and trees?

Your Honours, in relation to the position of the plaintiff and her father, they were not in effect standing on the edge with their toes hanging over the corner of the gutter.  The position was that there was a finding that they were eighteen inches to two feet approximately from the kerb.  Your Honours will see that in paragraph 11 of the primary judge’s reasons, page 1235.

Now, your Honours were taken to the part of the police occurrence sheet which appears in volume 4 at page 873.  Your Honours, could we say two things about that in relation to Constable Mills’ evidence.  The first is that in the actual notebook that was written at the time, in volume 3 at page 660, your Honours will see some reference to the bushes.  It is relevantly at page 660 in the top of the left-hand column where, having said he had:

pulled over to the right and stopped.  Her father came out of the bushes and ran over to her ‑

So, your Honours, it certainly does not deal dramatically with the issue but it is a reference at that point to the bushes.  The second thing, your Honours, is this, that if one goes to page 86 and 87 in volume 1 where Constable Mills’ evidence actually appears in relation to this issue, your Honours will see that the passage commences, effectively, at page 86, about line 47, and the passage then goes through to page 87 to about line 40, first of all, where re‑examination commences, but then in the re‑examination your Honours will see the question and the answer in the third line:

As best you can recall, and whether it be from any direct connection with that driver or from your understanding of your conversation with another police officer, was what you said there based upon your understanding of his version of events, whether it be in his statement or not?
A.   That’s correct, yes.

Your Honour, it does not take it very far, but the fact of the matter is that the judge did not refer specifically to this aspect of it.  Your Honours, could I refer then to the answer on which some reliance was placed, which appears in volume 2 at page 423 between lines 20 and 25, where our learned friend sought to parse and analyse and interpret the answer that he gave:

Only that my sight was obscured by the foliage.

Your Honours, in our submission, quintessentially, what he meant by saying that was something, in our submission, that was for the trial judge.  He saw him there, he formed a view, favourable to him on credibility except in one aspect, and there is no reason why the judge could not take that answer into account and formally arrive at the conclusion which he reached in paragraph 38 of his reasons, in volume 6 at page 1246, where he said at the bottom of the page:

As it happened, the vegetation . . . significantly restricted the vision of the first defendant, particularly – 

et cetera.  Your Honours, can I turn then to the question of whether there was a need for a glare retardant area.  The need seems to have disappeared, as it were, in that if your Honours look at the photograph in volume 4 at page 885, it is all gone.  Any of the relevant bushes have disappeared and your Honours will see some of the fence has been taken down too, and that is 1997; your Honours will see the date of the photograph.

The second point, your Honours, is that evidence was given by Mr Grewcoe in volume 3 at page 719 about how it could have been done with vegetation.  Your Honours will see at the bottom of page 719 he deals with the question in bold type at about line 40 and your Honours will see that he sets out some answers to that question, so that there was a remedy which was available, or a different way of doing it.

Your Honours, if I turn to the submissions made by my learned friend Mr Hislop, I was going to say these things about them.  First of all, in relation to the question of whether the Council was in fact performing maintenance – I am sorry, your Honours, I had not appreciated the time – I will be five minutes, I think.  In relation to the question of the Council and maintenance, your Honours have been taken to page 698 and some of the material concerning that but could I just say, your Honours will see from our reply submissions in paragraph 9 that we set out the dates on which up to a very short time before the accident there had been work carried out by the Council in the area.

The second thing about it, your Honours, is that if one goes to volume 2 at page 438 - I am sorry, I have already taken your Honours to page 438.  I meant to give your Honours a reference to page 891 in volume 4, where it was admitted that the Council had the relevant powers.

KIRBY J:   I am not absolutely sure where the notice of contention leaves us on these issues. This is really a little unsatisfactory.

MR JACKSON:   Your Honour, that is one matter I wish to mention.  May I come to it in just a moment, because there are some complications with it, because some of the matters that seem to be sought to be raised by the notice of contention are ones that one would have thought are involved in the issues being determined by the Court.

Your Honours, before coming to that, may I mention the question of parking.  Your Honours will have seen that Mr Wingrove’s evidence was accepted by the primary judge in paragraph 40 of his reasons.  Our learned friend referred to some passages there and ultimately one does have the conclusions in his evidence in the passages to which I took your Honours earlier, pages 350 to 351 in volume 2, especially at page 350, about line 50.

Your Honours, no one says that the standard, whatever it may have been, was binding on the Council and it may well be that there are many areas where one sees right-angle parking.  But, your Honours, the position was that the evidence was that it was unsatisfactory to have it in this spot.  It is not part of the ordinary course of events to design roads in this way in this spot - that is Mr Wingrove’s evidence.  Your Honours, could I also say ‑ ‑ ‑

KIRBY J:   But we were told that it was resumed and therefore presumably the road was designed and then the store was put up and then the Council thought we have to have some parking there, off-street parking.

MR JACKSON:   Your Honour, I am not sure who was the motivating person, maybe both sides actually appeared in the evidence, but in any event it became the Council’s and there we are.

Could I say, your Honours, our learned friend said that there is not much evidence at the time this was done of there being usage of the well‑worn track.  Well, on page 143 the plaintiff’s father spoke about it and that he had seen children using the track quite a bit.  I have just forgotten the exact words.  He said about the middle of the page that he had been using the hardware store for over ten years and a little further down the page, down to about line 47, that the area was used quite often for people to cross the road.

Constable Schneiders also at page 106 said he had seen some children crossing.  Your Honours will see from our chronology the construction of the parking bays was approved on 14 November 1985.  The plans were approved - that is in our chronology.

KIRBY J:   What page is that?

MR JACKSON:   That is in our chronology, your Honour, it is 14 November 1985.  The relevant document unfortunately has not got a page number, but it is volume 5, exhibit Y9.  Page 1024, I am told, your Honour.

HAYNE J:   There is a photograph at 1020 as at 3 November 1986 which shows it constructed.

MR JACKSON:   Yes, your Honour, so it is in that period and that is the 10‑year period that he had been going to the shop well covers that.

Your Honours, could I come then to the notice of contention.  What we want to say in relation to that one can see from the submissions in reply, page 6.  What we have done, your Honours, is to set out the various grounds that are relied on.  Could I say in relation to ground 1 that it seems a curious thing, with respect, to see why that issue would go back to be determined because on any view it was a misfeasance case and the fact of the matter was that the Council – this is paragraph 17 – has undertaken the maintenance of it.  The questions about how much money it had or did not have seem entirely irrelevant.  This is something that it has in fact been doing.

KIRBY J:   You say that but the Council says, “We put in issue duty of care and breach and causation and the court only dealt with it on causation, so we are entitled to be heard on the first two issues”.

MR JACKSON:   Your Honour, could I just say, however, that the matter that is raised by ground 1 of the notice of contention seems to be one that really – it is simply a case where the only question is one of pure general negligence and it seems to be covered by the case so far, as it were. 

Your Honours, ground 2 seems to raise the question of foreseeability and, with respect, that seems difficult to see why that issue would now go back to the Court of Appeal.  It seems to be necessarily involved in this case and it is something that has only been – if there was to be an attack on it, this is the place it should have been done, in our submission.

McHUGH ACJ:     We stopped the Council on it.

MR JACKSON:   Your, Honour, I was just going to say there was nothing more I wanted to say about that.  Ground 4, your Honours, it is extraordinary to see that factual issue going back to the Court of Appeal.  It is purely a matter of an inference to be drawn.  Then ground 5, your Honours, that seems to be involved in the case itself in this Court.  Your Honours, ground 6 I have said there everything I want to say about it.  The Council undertook the maintenance of the foliage and was carrying it on before and after.  The same applies, your Honours, to ground 7.

Your Honours, it is difficult, with respect, to see how in the case of the Council the issue raised by ground 8 could now really arise.  Ground 9(a) is something which we accept should go back to the Court of Appeal and ground 9(b) is one which, in our submission, may go back to the Court of Appeal if the Court takes a different view about the negligence of the parties.  We would accept that, I think.

Your Honours, may I say just one other thing before saying this, dealing with the question of costs, and it is simply this, that our learned friend’s submission on behalf of the RTA seem to involve the proposition that it was able to delegate its duty in relation to it.  Now, your Honours, this is a point which was decided against them by the primary judge.  It does not seem to have been necessary for the Court of Appeal to deal with it, but there does seem to us to be a statutory question which arises in relation to it and that is the ability of the RTA to do so in the light of the provisions of the Roads Act. 

Your Honours have no material about that before you at all.  May we, however, if we think there is anything further in the point, give your Honours a note about it in the next few days, and our learned friends of course ‑ ‑ ‑

McHUGH ACJ:   Yes.

MR JACKSON:   ‑ ‑ ‑ being able to say whether the point should be raised and whether there is any substance in it if it is.

CALLINAN J:   Mr Jackson, it might be helpful if you could look at that list, if the parties could agree upon a list of outstanding issues.

KIRBY J:   It does not look as though they are going to be able to.

MR JACKSON:   No, your Honour, we will try.

CALLINAN J:   Well, we should have the parties respective contentions in respect of what is outstanding.

MR JACKSON:   Quite, your Honour.

CALLINAN J:   And that should apply to all of the parties.

MR JACKSON:   Your Honour, I accept that.  Could we also say just in relation to the issue of costs as between ourselves and the plaintiff that we

do not want to add to what is our submission in paragraphs 32 to 35.  I note in passing that we had not referred specifically to what was said by Justice Giles, but it was ultimately to the same effect as Justice Ipp.

McHUGH ACJ:   Yes, thank you, Mr Jackson.

KIRBY J:   You referred to that decision of Justice Davies.  Do you refer in your written submissions to the earlier ‑ ‑ ‑

MR JACKSON:   No, we have not, your Honour.  We simply said that what the Court of Appeal did was within its discretion to do so.  We accept there are cases where it is appropriate to make an order that the unsuccessful defendant pay the costs ‑ ‑ ‑

KIRBY J:   There does seem to be a difference of view between – I mean, I am not saying that they are universal and that they cover the whole universe, but there does seem to be a difference of approach and I must say that I thought Justice Davies’ approach was the one that was normal in these cases, but I may be wrong.  It is not a punitive jurisdiction.

MR JACKSON:   No, your Honour, but what we have said about it is simply that ‑ this is paragraph 34 of our written submission – this is not quite the simple case and the Court of Appeal was correct in saying that there were good reasons for her to pursue proceedings against the RTA and the Council and that being so, then the decision of the costs of the trial was that it was within discretion.

McHUGH ACJ:   Yes, thank you, Mr Jackson.  Mr Hislop, strictly speaking you have a reply on the notice of contention.  Is there anything you want to say in respect of that?

MR HISLOP:   No.  The issues were raised, they were not determined below and we submit that that they are not matters for this Court to determine.  Obviously, Mr Jackson says there is nothing in them.  We submit to the contrary.

McHUGH ACJ:   Thank you.  Very well, the Court will reserve its decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 4.32 PM THE MATTER WAS ADJOURNED