Roads and Traffic Authority v Cremona - [2002] HCATrans 358

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S6 of 2002

B e t w e e n -
ROADS AND TRAFFIC AUTHORITY
Applicant
and
MINNA MAARIT CREMONA
Respondent
Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2002, AT 10.54 AM

MR B.J. GROSS, QC: May it please the Court, I appear with MR A. PORTHOUSE for the applicant. (instructed by the Crown Solicitor for the State of New South Wales)

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MS M.A. KUMAR, for the respondent. (instructed by Riley Gray-Spencer)

McHUGH J: Yes, Mr Gross.

MR GROSS: Your Honours, can I hand up three copies of what Luntz, on Assessment of Damages, has to say on the point and also a very recent decision of the Western Australian Court of Appeal ‑ ‑ ‑

McHUGH J: This is an application for special leave to appeal; we are not going to read all this on an application ‑ ‑ ‑

MR GROSS: I am not asking your Honours to, but there is the Western Australian Court of Appeal in Villasevil v Pickering (2001) 33 MVR 477 ‑ ‑ ‑

GUMMOW J: Yes, but what have they done?

MR GROSS: They have taken the directly opposite approach; they have taken the Jongen approach, which is referred to in the Court of Appeal judgment.

GUMMOW J: So you rely on this for conflicting decisions of intermediate courts?

MR GROSS: Yes, we do and there is reference in the footnotes to the Queensland approach is, in effect, the Jongen approach, that is, you ignore the capacity of the superannuation fund to accumulate income on a compounding basis, you just concentrate on the value of the superannuation contributions when they were being made.

McHUGH J: Well, can I just ask you one matter. What worries me a little in this case is that the findings of the judge – I mean, it seems a remarkable finding by the judge that you would get 11 per cent return. This 10‑year period must have been very specially selected. What is it, taken through the longest bull run of a market in history? If you had taken a 20‑year figure, I think you might have got a very different result.

MR GROSS: Your Honour, what was taken was a 10‑year average ending December 1998, as I recall, and that certainly was a high period for the reasons your Honour has given.

McHUGH J: I mean, the market itself, historically, has only returned 8 or 9 per cent and the general view is that fund managers cannot beat the market because, among other things, they have to pay broker’s commission and then they have to pay management fees on top of that. I mean, this is a surprising finding.

MR GROSS: Your Honour, the case which we are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Roads and Traffic Authority v Cremona and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] HCATrans 358
Decision Date

CaseChat Overview and Summary

In *Roads and Traffic Authority v Cremona*, the High Court of Australia considered an appeal from the Supreme Court of New South Wales concerning the liability of the Roads and Traffic Authority (RTA) for injuries sustained by a motorcyclist, Mr. Cremona, when his motorcycle struck a pothole on a public road. Mr. Cremona had sued the RTA for negligence, alleging that the RTA had failed to maintain the road in a safe condition.

The central legal issue before the High Court was whether the RTA owed a duty of care to Mr. Cremona in relation to the maintenance of the road, and if so, whether that duty had been breached. Specifically, the court had to determine the scope of the RTA's responsibility for road defects and the standard of care required in maintaining public roads to prevent foreseeable harm to road users.

McHugh and Gummow JJ, in their joint judgment, affirmed that a statutory authority responsible for the maintenance of public roads owes a duty of care to road users to take reasonable steps to prevent foreseeable risks of injury. The court reasoned that the RTA, by virtue of its statutory functions and control over the road network, had a positive obligation to ensure the roads were reasonably safe for traffic. The court found that the existence of the pothole, which had been present for a significant period, constituted a foreseeable risk of harm to motorcyclists, and the RTA had failed to take reasonable steps to inspect and repair the defect, thereby breaching its duty of care. The appeal was dismissed.

Orders