Roads and Traffic Authority v McGregor - [2005] NSWCA 388

No judgment structure available for this case.

CITATION:
Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388

HEARING DATE(S):
30/06/05

JUDGMENT DATE:

11 November 2005

JUDGMENT OF:
McColl JA at 1; Campbell AJA at 2; Bell J at 176

DECISION:
Appeal allowed in part. Set aside the verdict and judgment against the appellant and in lieu thereof order verdict and judgment against the appellant in the sum of $178,941. Cross appeal allowed in part.Set aside the verdict and judgment against the cross-appellant and in lieu thereof order verdict and judgment against the cross-appellant in the sum of $178,941. Confirm the orders of Bishop DCJ as to apportionment. In default of agreement the parties to file written submissions as to costs of the appeal, cross appeal and trial within seven days.

CATCHWORDS:
Appeal - Negligence - Personal injury - Damaged pavement- Obvious danger in daylight not at time of injury - Apportionment - Damages - Construction of subs 15(3) of Civil Liability Act 2002.

LEGISLATION CITED:
Civil Liability Act 2002
Motor Accidents Act 1988
Motor Accidents (Amendment) Bill 1993

CASES CITED:
Wyong Shire Council v Shirt (1979-1980) 146 CLR 40
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Maviglia v Mavaglia [1999] NSWCA 188
Fox v Percy [2003] 197 ALR 201
Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241
Van De Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Fairfield City Council v Cheryl Petra [2003] NSWCA 150
Oxley County Council v Macdonald & Ors [1999] NSWCA 126
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Ltd (2001) 53 NSWLR 626
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Coultin & Ors v Holcombe & Ors (1986) 162 CLR
Geoghan v D'Aubert [2002] NSWCA 260
Lennon v Gibson and Howes Ltd (1919) AC 709
McConachie v Pack [2004] NSWCA 148

PARTIES:
Roads and Traffic Authority - Appellant
Anne McGregor - First Respondent
Woollahra Municipal Council - Second Respondent

FILE NUMBER(S):
CA 40277/04

COUNSEL:
Mr G M Watson SC with Mr A J McInerney - Appellant
Mr M L Williams SC with Mr I A Newbrun - First Respondent
Mr D L Davies SC with Mr N J Polin - Second Respondent

SOLICITORS:
McCabe Terrill - Appellant
Carroll & O-Dea - First Respondent
Phillips Fox - Second Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2941/02

LOWER COURT JUDICIAL OFFICER:
Bishop DCJ

CA 40277/04
DC 2941/02

McCOLL JA
M W CAMPBELL AJA
BELL J
Friday 11 November 2005

ROADS & TRAFFIC AUTHORITY v ANNE McGREGOR & ANOR

Judgment

1 McCOLL JA: I agree with Campbell AJA.

2 CAMPBELL AJA:

Introduction

3 Cross claims resulted in the judgment being apportioned as to sixty percent to the Council, the first defendant below, and forty percent to the RTA, the second defendant below.

4 The RTA appeals against the verdict and, in a limited respect, the quantum of damages.

5 The Council has cross-appealed against the verdict, the apportionment and, in a limited respect, the quantum of damages.

6 Although the RTA is the appellant and the Council a cross-appellant it is convenient to deal with the issues arising on the appeal and the cross appeal under the following headings:

The Council’s appeal against the verdict.

The RTA’s appeal against the verdict.

Apportionment.

Damages.

The Council’s Appeal Against the Verdict.

The Circumstances

7 On 31 December 1999 Mrs McGregor, who was 58 years old at trial, was staying at a unit in Darling Point Road. With members of her family she visited friends at 21 Thornton Street Darling Point.

8 After the New Year’s Eve fireworks were over she decided to go down the hill in Thornton Street to a park by the water to see how her daughter, who had gone there earlier, was getting on.

9 To make that journey she went down the driveway of the unit at 21 Thornton Street and turned right into the street.

10 As she did so she saw three pedestrians quite close to her and went close to a metal street sign to allow them to pass. As she did so her heel became caught in the footpath. She felt her leg rotate and heard a crack after which she lowered herself to the footpath.

11 Mrs McGregor had suffered comminuted compound fractures of the right lower tibia and fibula. The limited nature of the appeal on damages makes it unnecessary to consider further the serious consequences of those injuries.

12 It was not disputed that at all relevant times the Council had the care control and management of the footpath in Thornton Street Darling Street.

The Primary Judge’s Reasons

13 After referring to Mrs McGregor’s account as noted above and to her evidence that she did not recall any nearby streetlight Judge Bishop continued:

14 The Judge said that Mrs McGregor was an acceptable witness who gave her evidence in a very straightforward fashion. He did add that she did “appear to be a little evasive as to the effect of her back surgery and her bowel cancer problems on her need for domestic assistance”.

15 Judge Bishop said:

16 Mr Barry Tozer, an engineer, had inspected the galvanised steel post on 18 April 2001 and found it fitted with a “No Standing/Bus Zone” sign. The Judge summarised his report as follows:

“13. ….He described how the post was positioned in the hole filled with concrete, the level of which was lower than the adjacent footpath. Part of the adjacent footpath concrete had been cracked and broken during the construction of the post. As a result of this there was some subsidence. The work of installation of the post in Mr Tozer’s view had not been performed in a manner which left it in a safe condition for pedestrians. In more detail in his report he indicated that the damage to the paving slab in which the post was positioned was as a result of poor installation work and that subsequent subsidence had occurred in part of it due to an ingress of water beneath the slab. In particular he indicated an awareness of the RTA’s specifications for installation of posts such as this and considered that the installation was not in accordance with those specifications.”

17 The Judge summarised Mr Tozer’s oral evidence as follows:

“15. In his evidence he indicated that he had made no assumption about when the post had been installed. The hole in the slab in his opinion had been created in the demolition process prior to its installation by a pneumatic or hydraulic hammer. He was doubtful about any contribution by postulated motor vehicle collisions with the post. He thought it was just possible that such a collision could have contributed to the cracks in the slab, but the variety of different levels demonstrated in the photographs were not likely to be due to a motor vehicle accident. He confirmed that water ingress could contribute to the overall picture. The cracking around the base of the post resulted from the installation and had been left there in the witness’s opinion. He felt that examination of the photographs tended to argue against any collision having occurred because of a line of weathering in the galvanising. He had however, done some calculations with regard to a motor vehicle impact which he explained and felt that such a collision would have been very unlikely. The idea of some good Samaritan having straightened the post after a collision he rejected as such straightening would leave some signs of kinking. For a collision to cause the damage there would need to be a very heavy vehicle causing, in his opinion, a substantial upwards pressure.”

18 Mr Jackson Clark, an engineer, gave evidence for the RTA. Whilst his evidence was primarily directed to the case against the RTA it also has relevance to the case against the Council and I refer to it now.

19 The judgment noted that Mr Clark’s inspection took place on 29 October 2003 by which time the base of the post had been repaired. It went on:

“16. He did not agree with poor installation as the cause of the damage, nor was he happy with the arguments from Mr Tozer about subsidence. He was shown Exhibit B, which will be dealt with hereunder, with its reference to a 1974 motor vehicle accident. The witness considered that impact damage from such an accident could have caused the damaged concrete around the base of the pole. He rejected the idea of poor workmanship and thought that even subsequent motor traffic accidents could have contributed to the overall position. It was also possible that somebody else might have straightened the pole after a collision but he conceded that when he saw the post there was no sign of any damage. He agreed on looking at the photographs from the time of shortly after the accident that the damage on the footpath should have been repaired. He could think of no explanation other than motor vehicle impact.”

20 Judge Bishop observed that of the two experts he preferred the opinions of Mr Tozer. He noted that he was impressed by his demeanour and gave other reasons to which it is unnecessary to go.

21 Before dealing with the contentious issue of who installed the post, to which I shall come later, Judge Bishop then referred to a number of exhibits being documents tendered in Mrs McGregor’s case, which bear upon that issue and also upon the issue concerning the Council’s knowledge or opportunity for knowledge of the damage about the base of the post. I should set them out:

“20. Exhibit B was a copy of a letter from a Mr Arnold of 21 Thornton St to the Council. This referred to a car accident that had occurred some months earlier outside Thornton Place where a “No Standing” sign had been demolished and replaced. The date of that letter was 3 May 1974. Exhibit F was a request from the Council to the predecessor in title of the RTA (the DMR) for work on No Standing signs on the northern side of Thornton St near Yarranabbe Road. The request was dated 11 December 1978 and on its face the work was completed on 8 November 1979.

21. Exhibit G was an agenda item in a Traffic Committee meeting of the Council in October 1983 involving the extension of the No Standing area around the Bus Zone in front of Number 23 Thornton St on the north side. This was adopted by the Council and the necessary instructions for signposting issued to the RTA as in Exhibit H.

22. Exhibit I was a letter from a managing agent complaining about the state of the footpath in Thornton St near Number 13. This was dated 27 June 1990 and the correspondence indicated it was acknowledged and referred for action.

23. Exhibit J was a letter from a resident of Thornton St dated 26 May 1997 in connection with damage to the edge of the roadway outside Number 15.

24. Exhibit K was a Traffic Committee recommendation endorsed by the council on 10 June 1997 for the change of bus signs in Thornton St from part- to full-time. The request for the work to be done was sent in to the RTA and the documents indicated completion on 11 August 1997. The work was expressed to be required in Darling Point Road, Thornton St and New Beach Road. The attached documents, however, appear incomplete. There is reference to the re-erection of a steel post and the restraightening of a post without a clear indication as to where these posts were. There are no specific details enclosed in this exhibit with regard to Thornton St.

25. Exhibit L was a detailed plan for upgrading kerbing and guttering in Thornton St in the relevant area. This plan appears to have been approved by the Traffic Committee early in 1999.

22 Judge Bishop then referred to the evidence of a number of witnesses called by the RTA. I shall deal with that evidence later in considering the appeal by the RTA, however, some of it was also relevant to the case against the Council.

23 The Judge referring to the evidence of Mr William Lindsay (who the evidence shows to have been a traffic services manager with the RTA) observed:

“29… When shown some photographs of the footpath in question he said that the RTA would not leave a footpath like that. It should have been reported or fixed immediately as it represented a danger. He would not concede poor workmanship as a cause of the damage and was really unable to offer any explanation. He felt that a truck could, at some stage, have backed up on to the footpath.”

24 His Honour noted that Mr Tobin, a retired leading hand with the RTA, conceded that the state of the footpath around the post, of which he had been shown photographs, “might be due to poor workmanship”.

25 Of Mr Polizois, a work supervisor with the RTA, the Judge said:

“32. With regard to the Exhibit A photographs he confirmed that there is a written standard for the installation of these sorts of posts. He was not prepared to concede poor workmanship at the base of the post but appeared somewhat unwilling to try to postulate any explanation.”

26 Judge Bishop then dealt with his conclusion as to the RTA installing the post to which I shall come later. He went on:

27 At this point his Honour under the heading “Legal Principles” reviewed a number of relevant cases commencing with Ghantous v Hawkesbury City Council (2001) 206 CLR 512 and commented that he had been referred to and considered many others.

28 I do not consider that the judgment revealed any error on the part of his Honour in formulating the principles he was to apply.

29 It is relevant to note that after referring to the duty of a pedestrian the Judge went on:

Wyong Shire Council v Shirt

‘In deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.’ “

30 The Judge then stated his conclusions from the evidence as follows:

“44. A number of facts clearly emerge from the evidence. The first of these is that at the date of the plaintiff’s accident the footpath surrounding the base of the steel post just west of the entrance to 21 Thornton St was in a damaged condition. It is also clear that on the date of injury the plaintiff caught her heel in the damaged slab, causing a rotational injury to her right leg. Various suggestions that she may have tripped rather than caught her heel are, in my view, not made out.

45. The damage in the footpath had been in existence for at least six years and probably longer going back to the mid 1980’s.

46. The evidence establishes that the damaged section of the footpath was clearly visible to pedestrians in daylight. I find, however, that at night it was less visible because of the absence of any nearby street lighting. At the time of injury visibility was further adversely affected by strong wind and leaves blowing about.

47. The plaintiff was not familiar with the area where the accident occurred, the day of injury being her first time in Thornton St. She had walked past the subject post on one prior occasion, being about 10.30 pm on the evening of the injury. There is no evidence of her walking past it in daylight. The plaintiff’s reference to the damage being clearly visible I interpret as being an assessment after the event. I further accept that immediately before the injury the plaintiff’s attention was on the oncoming pedestrians as she approached the post.

48. The combination of the plaintiff’s unfamiliarity with the area, and the lighting conditions together with the weather, leads to the conclusion that the plaintiff was taking reasonable care for her own safety. There may have been an element of inadvertence in concentrating on the oncoming pedestrians in the unusual circumstances of that evening. Any such inadvertence, in my view, falls way short of the establishment of contributory negligence.

49. The damage to the footpath, as I have found, was plainly visible in daylight. It ought to have identified and attended to. The only costs estimates in evidence were either a few hundred dollars or something approaching $2000. This would not seem to create a problem by way of expense or difficulty and, in fact, by the time the second expert inspected the scene, the footpath had been repaired.

50. In my judgment it was reasonably foreseeable on the part of both defendants that the damage to the footpath posed a risk particularly at night in an area with a high density of home unit occupation together with the fact the post was adjacent to a bus stop.

31 It is relevant to note that in dealing with the issue of apportionment the Judge said:

“57. The above verdict is against both defendants. Each defendant has cross-claimed against the other. The liability of the second defendant rests as I found on poor workmanship. The liability of the first defendant rests on a failure to identify the damage on the footpath over a long period of time and take steps to have it rectified. In my view an appropriate apportionment, taking into account all the evidence, is sixty percent to the first defendant (the Council) and forty percent to the second defendant (the RTA).”

The Council’s Grounds of Appeal

32 The Council’s grounds of appeal as to the liability to Mrs McGregor are as follows:

“1. His Honour erred in finding the Cross-Appellant owed to the First Cross-Respondent a duty of care.

2. His Honour erred in finding the Cross-Appellant was in breach of any duty of care.

(a) the obviousness of the risk to pedestrians exercising reasonable care for their own safety (ie a 20mm to 30mm crack in the pavement);

(b) the First Cross-Respondent had walked past the subject sign post earlier the same evening without incident;

(c) the low risk of injury where there had been no recorded reports of injury in respect to, or complaints about, the damaged footpath adjacent to the subject sign post.

6. His Honour erred in failing to find that the First Cross-Respondent’s’ claim against the Second Cross-Respondent failed for want of proof as to the existence of and inadequacy of such system of inspection as might have detected the ‘dangerous’ state of the footpath.

Ground 1

33 Counsel for all parties took the Court to a considerable number of recent authorities of the High Court and this Court dealing with, amongst other things, the duty of care owed to pedestrians by authorities having the care control and management of the relevant pathway or other service.

34 Whilst the expositions were erudite and interesting the principles extracted from those cases do not, in my opinion, assist the appellant on this issue whilst the findings of Judge Bishop that the danger was not, under certain to be expected circumstances, obvious and that Mrs McGregor did not fail to exercise reasonable care for her own safety stood.

35 Substantially for the reasons given by Judge Bishop, I accept that these findings were reasonably open to him on the evidence. He dealt with the admitted obviousness in daylight and the different circumstances because of darkness, wind and leaves at the time of the fall. He referred to the presence of other pedestrians and consideration of their position. That is an objective circumstance, not a subjective one, as I rather think Mr Davies at one stage was putting. The location of the relevant footpath was such that it would be used in darkness as well as in daylight and in all manner of weather conditions.

36 This last mentioned circumstance was, clearly enough, a factor considered by Judge Bishop in his application of the “Shirt calculus” to the facts of this matter considered prospectively.

37 I appreciate that the submissions put that Judge Bishop’s reasons were inadequate, however I do not consider that contention to be made out. Certainly that is so when the observations of Mason P in Mavaglia v Mavaglia [1999] NSWCA 188 at [1]:

“…. and appropriate allowance should be given for the pressures under which Judges of the District Court are placed by the volume of cases coming before them.”

38 Mrs McGregor did give evidence in cross-examination that the broken area of concrete was obvious in broad daylight. She also gave evidence that she went back and looked at it after the accident. Judge Bishop observed:

“The plaintiff’s reference to the damage being clearly visible I interpret as being an assessment after the event.”

39 Whilst not inconsistent with the literal language as it appears in the transcript such a conclusion is the stronger when reached by a Judge having the advantage of following the flow of the evidence and observing the witness at the time the evidence is given. (Fox v Percy [2003] 197 ALR 201 at [23]).

40 I do not consider this ground to be made out.

Grounds 2, 3, 6 and 7

41 The Council’s written submissions deal with these grounds together and it is convenient to adopt the same approach.

42 The written submissions commence with the proposition that the precise finding of the breach of duty is elusive. I do not agree. Where, as Judge Bishop found, the failure established was to detect and rectify, referring to time frames rather than specific dates does not mean a lack of appropriate identification of the breach. Here the time frame was at least six years.

43 The passages from the judgment set out above [30] show that the Judge duly considered and applied the “Shirt calculus”.

44 The principal thrust of the Council’s submissions is directed at the following passage from the judgment:

“51. I also find from a consideration of the documentary exhibits that the Council’s officers had been in the relevant area of Thornton St on a significant number of occasions before the accident occurred. The damage to the footpath ought in my view to have been observed by the Council’s officers.”

45 Mr Davies of Senior Counsel, who appeared with Mr Polin of Counsel for the Council, extracted from the documentary exhibits five documents which appeared to be relevant to this issue. Mr Williams of Senior Counsel, who appeared with Mr Newbrun of Counsel for Mrs McGregor, did not challenge the selection.

46 The first document to which Mr Davies referred was a letter from the Managing Agent of 13 Thornton Street dated 27 June 1990 to the Town Clerk of the Council it said:

“I have been instructed by the Council for the Body Corporate “Hopewood Gardens”, 13 Thornton Street, Darling Point 2027 to draw your Council’s attention to the dangerous state of the footpaths in Thornton Street in the vicinity of their building.

Several people have been observed to trip and fall on the uneven paths including a member of the Council.

Should physical harm result from such a fall then a claim for damages would certainly be made.

It is requested that repair of the footpaths be done as a matter of urgency.”

47 A reply from the Town Clerk of 2 July 1990 was in the following terms:

“I thank you for your letter dated 27th June, 1990 regarding the dangerous state of the footpaths in the vicinity of 13 Thornton Street, Darling Point.

The matter has been referred to the Council’s Municipal Engineering Department for appropriate action.

48 Mr Davies put and Mr Williams did not challenge, that No 13 was conservatively 70 metres from No 21. He submitted that “it would be a pretty tall order” to suggest that a complaint there should bring Council workmen “all the way down just to see if there is anything else at another place.”

49 However, No 23 and No 13 are on the same side of Thornton Street, and there is no cross street between them and the bus stop is near No 23.

50 It is, no doubt, a matter of degree for the trial judge, however, Council workmen were to be sent, according to the letter of 2 July 1990, to work on the footpath of Thornton Street in the same block as No 21.

51 The second document referred to by Mr Davies is a handwritten letter of 26 May 1997 from a Mr Hill, who apparently resides at No 13, to the General Manager of the Council in the following terms:

“I would be grateful if the Council would carry out a small repair to edge of Thornton Street North Side at the entrance to 15 Thornton Street.

…..

The bitumen has broken away exposing a round concrete item plus either side is broken and rough. We have had a number of people tripping over when alighting from a taxi in particular plus dangerous when walking out of the entrance.

52 The letter contains a sketch which shows the area requested to be repaired. That area is only separated from Thornton Place by the property at No 17.

53 The letter carried a notation, clearly enough by a Council Officer, “Please arrange necessary repairs”.

54 Mr Davies submitted that the point of this repair would be “around the corner” from No 21 as the photographs demonstrate. Nonetheless, it is on the same side of Thornton Street and in the same block.

55 The third document referred to by Mr Davies is a recommendation to the Woollahra Traffic Committee dated 2 February 1999. It reads:

“Y25. THORNTON STREET, DARLING POINT – KERB AND GUTTER WORKS.

A plan has been designed for the upgrading of the kerb and gutter in Thornton Street, Darling Point from Hampden Avenue to Bennett Avenue. This work is part of Council’s ongoing Maintenance Program. The plan is attached as Annexure 1.

The chevron marking shown on the plan currently exists but will be redone as part of kerb and gutter upgrading. The parking lane and blister is to be installed to channelise the traffic along Thornton Street. The marking of the parking lane is also intended to line up with the kerb in Thornton Street on the other side of Bennett Avenue where the road narrows significantly.

THAT the Traffic Committee approve Plan 14727 for the proposed kerb and gutter works in Thornton Street, Darling Point.”

56 Plan 14727 is a detailed plan of the proposed work. Mr Davies agreed that it was “opposite the post” albeit on the southern side of the road. He relied upon this fact and the specific nature of the work. On the other hand the preparation of the plan would have involved work within an area no more than the width of the road from the obvious, in daylight, danger.

57 The next document referred to by Mr Davies was a letter of 7 July 2003 from a Mrs Bingham to the Manager of the Council in the following terms:

“On Sunday, 6th July, 2003, I suffered a fall on the footpath outside Thornton Place, at 21 Thornton Street, Darling Point. The fall was caused by the state of the footpath. The corner of one of the slabs of concrete in the path is approximately 2cm higher than it should be. This spot is also a bus stop.

My fall was very heavy and affected me generally. I hit my face, knees, hands and ribs very heavily and have yet to have the damage assessed. But my reason for informing you of this situation is that there is at least three points at this spot, which is incidentally a bus stop, quite badly raised or cracked. In the last three years I know of three such falls – one result is in the courts at the moment, and in another the gentleman concerned suffered a broken hip and shoulder damage, causing him to be hospitalised and much pain and suffering.

May I suggest that because of the usage given to this part of the footpath your Council should immediately make some repairs to prevent further harm. It is on a very well used bus stop and walking path. It seems just a matter [of] time before another incident occurs.

The citizens in this precinct are generally elderly and use the public transport and the footpath for walking a great deal.

58 A further letter by Mrs Bingham on 3 August 2003 is in the following terms:

“May I express my sincere appreciation of your efforts in having the poor pavement repaired outside these units.

The well used bus stop is now safe and sound. The work was completed within a few days.

59 I agree with Mr Davies’ submission that the first letter does not lead to an inference as to any of the falls referred to taking place before January 2000. However, the second letter does show that such defects can be readily repaired.

60 The last document to which Mr Davies referred was a letter of 2 February 1993 from Mr Neville Gruzman, an Architect and Councillor to the Chief Engineer of the Council. The letter, so far as relevant, reads:

61 Mr Davies put that this letter was concerned with the road surface and raised no problem as to the footpaths.

62 Whilst this may be so, it does suggest that an inspection of Thornton Street take place. In fact this was done. A Mr Sung reported to the Municipal Engineer on 6 May 1993 in the following terms:

“Greg Stewart and I inspected Thornton Street in relation to point 4 in the attached letter from Mr Gruzman.

Some longitudinal cracking along the southern side of the street was found. This appear (sic) to run along the edge of a gas main trench, and would most probably be caused by trench backfill consolidation, combined with the brittleness of the asphalt as a result of long term oxidation. Some minor ‘crocodile’ cracking was also found, confirming that a resurfacing of the wearing course should be considered in about 12 to 18 months time.

On the whole, the condition of the pavement may be considered as sound and do[es] not warrant immediate attention given that there are other streets within the Municipality that require urgent attention.

63 Mr Davies did submit that the report suggested inspecting only the southern side of the street, however, there are stone and brick walls on the northern side and, to my mind, the report refers to an inspection of Thornton Street on both sides.

64 At the least it seems to me that the report places Council Officers inspecting the area within which the post was even if their specific attention was directed to other matters.

65 In my view it was open to Judge Bishop to draw from the documents tendered the inference he did as to the opportunity for Council Officers to observe the obvious danger in the footpath outside No 21 and to do so at a time which would have allowed a reasonable time for repairs to have been carried out before January 2000. It was, I consider, open to him to conclude that Council Officers ought, exercising reasonable care, to have observed the defect and to have undertaken or arranged its repair.

66 In my view the documents support the inference the Judge has drawn from them. Particularly is this so in the absence of any evidence from the Council other than medical reports.

67 I should mention that at one point in the written submissions it was put:

“This seems to be a finding of a negligent inspection by Council officers. This is confirmed by reference, when dealing with apportionment by the trial Judge in paragraph 57, to the fact that the liability of the Council rested on ‘…a failure to identify the damage on the footpath over a long period of time and to take steps to have it rectified.’ (Red AB 38U-W). This in context can only be a finding of a failure to adequately inspect, accompanied by a causal link that had it been adequately inspected the footpath would, prior to the plaintiff’s accident, on the probabilities, have been repaired.”

68 The judgment is clearly founded upon not only a failure to detect but a failure to rectify. It is not necessary to support the verdict that there should be a conclusion that more probably than not prior to the accident a repair would have been effected.

69 What is required is no more than had the defect been identified the exercise of reasonable care would have resulted in it being repaired before the injury. (Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241). That is, a different thing to a finding that “the footpath would, prior to the plaintiff’s accident, on the probabilities, have been repaired”.

70 In regard to the Judge’s view that Councill officers ought to have observed the damaged footpath it is material to note the following evidence of Mr Clarke. Whilst Judge Bishop preferred the evidence of Mr Tozer to that of Mr Clarke, there was no dispute between them on the matters now mentioned. It was clearly open to Judge Bishop to accept Mr Clarke’s views. In cross-examination Mr Clarke said:

71 I should add in respect of ground 6 that it is not incumbent upon Mrs McGregor to erect a windmill to tilt at. If the Council had seen fit to provide evidence as to its system of inspection questions might have arisen for Mrs McGregor as to its adequacy. However, the Council did not call such evidence.

72 In respect of ground 7 I am content to say that there is ample evidence upon which his Honour could determine the cause of the damage to the footpath adjacent to the subject signpost. He accepted Dr Tozer’s views and there is other evidence to which it is unnecessary to go. In any event the verdict against the Council, as found, did not depend upon the cause of the initial damage to the footpath.

73 In my view it was open to Judge Bishop to find breach of duty as he did and I am not persuaded that he was wrong to do so. These grounds are not made out.

Grounds 3 and 4

74 The written submissions as to these grounds put, amongst other things:

Van der Sluice v Display Craft Pty Limited

Phillis v Daly

Tomlinson v Congleton Borough Council

75 The grounds were not expressly relied upon in the oral submissions.

76 I think it is clear from his judgment that Judge Bishop considered that to do nothing by way of repair was not an option. He considered that the damage should, in the exercise of reasonable care, have been repaired and there is abundance evidence to support that view. (See, for example [70] above).

77 In Van De Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at 83 Heydon JA, as he then was, made the point that the “Shirt calculus” leaves open the possibility that the response of a reasonable person may be to do nothing.

78 In my opinion the nature of the damage to the footpath and the virtually unanimous view of the witnesses with relevant qualifications as to what should be done with it takes such a response out of consideration. It was certainly open to Judge Bishop to so regard it.

79 It was further put in the written submissions that the length of time over which pedestrians had crossed the area without evidence of any previous accident or complaint made it “hard to see that a failure to repair (as opposed to avoiding the damage in the first place) was causative of the plaintiff’s injuries.”

80 The accident resulted, the Judge found, from the condition of the footpath. There is no valid distinction, relevant to the issue of causation, between negligently causing the damage to the footpath and negligently failing to rectify it. So far as causation of Mrs McGregor’s injury was concerned it was the state of the footpath on the night of the injury that was relevant.

81 The absence of previous injuries at the site whilst, no doubt, relevant on a number of aspects is not determinative (Fairfield City Council v Cheryl Petra [2003] NSWCA 150 at [21] [34]. It is apparent that the abundant evidence as to the dangerous nature of the damage overweighed the absence of history of injury.

82 I do not consider that the Judge was called upon to explain more fully than he did the conclusion he reached on these aspects.

Conclusion on Liability of the Council.

83 In my view the challenge as to the finding of liability against the Council is not made good.

The RTA’s Appeal against the Verdict.

84 Mrs McGregor’s case against the RTA was put in two ways. The first was that the RTA had negligently installed the post, the second was that having the opportunity over a considerable time, to observe, through its officers, the damaged state the footpath had been left in, it took no action to warn of or rectify that state.

85 Having found for Mrs McGregor upon the first way her case was put Judge Bishop did not find it necessary to deal with the second.

86 My view of this appeal permits me to adopt the same approach. It is thus unnecessary for me to consider an argument raised by Notice of Contention as to the second basis and a challenge to the Judge’s decision to refuse leave to amend the Statement of Claim in relation to that basis.

The Primary Judge’s Reasons

87 I shall not, so far as practicable, repeat material I have set out earlier in this judgment.

88 Under a heading “The post that nobody installed” Judge Bishop observed that “a great deal of time was spent on the question of who installed the post.” It was a live issue at the trial and at the forefront of the RTA’s case on appeal.

89 As I have mentioned [21] the Judge set out relevant documents and then [22] reviewed the evidence of a number of witnesses called by the RTA.

90 His Honour in respect of a witness Ms Lewis said:

“A number of lay witnesses were called by the RTA. The first of these was Ms Lewis who was, for a period, employed on contract by the RTA as a risk manager. She was the author of a letter to the plaintiff’s solicitors from the RTA. I accept her evidence that she wrote that letter simply on behalf of her superior, Mr Lewis, and that she had no independent input into it. Mr Lindsay later conceded that the letter involved some mistaken assumptions. I do not consider it is necessary to go any further into the evidence of Ms Lewis and that the letter in question should be set to one side.”

91 I have mentioned part of the judgment referring to Mr Lindsay [23]. Judge Bishop noted that Mr Lindsay indicated that the RTA records had been on a data base since 1994 and that he had been unable to find any documents prior to 1994 and did not know where they might be.

92 The Judge said:

“He confirmed that he had been in the service of the RTA or its predecessors for over 30 years and had been about ten years in his present position. He was not sure if all records were destroyed after ten years. In the last ten years he said the RTA was essentially a contractor and would require, on a local road such as Thornton St, a council request before anything would be done. He discussed the maintenance requests in Exhibit K and said he would have spoken to Mr Polizois about it.

………..

93 Judge Bishop also said that Mr Lindsay was a straightforward and very experienced bureaucrat.

94 I have mentioned part of the judgment referring to Mr Tobin [24]. Of his evidence the Judge said:

95 I have mentioned part of the judgment referring to Mr Polizois [25]. Of his evidence the Judge said:

96 Judge Bishop then set out his summary of this issue as follows:

“Counsel for the RTA, in a very careful and methodical submission, analysed all the evidence and submitted that it leads to the conclusion that it has not been established that the RTA installed the subject post. With respect to counsel’s industry I am not of this view.

The postulated consequences of a motor vehicle collision with a post in 1974 based solely on the short letter from Mr Arnold in Exhibit B are a little too speculative. I consider it is very likely that the installation of the subject post took place somewhere around the end of 1983 pursuant to the documentation in Exhibit G relative to the extension of the No Standing area at the Bus Zone in front of number 23 Thornton St. The apparently missing documents in Exhibit K suggest the existence of the post at least by that time. It is also interesting that in Exhibit M, which is the letter to the plaintiff’s solicitors referred to earlier, the RTA had no difficulty with the concept that they had done work on the post by inspection and replacement of signs in 1997. Most importantly Exhibit R comprises a very large bundle of documents constituting instructions for work from councils to the RTA during the relevant years.

97 His Honour dealt with the other issues relevant to the claim against the RTA in paragraphs 49, 50 and 51 of his judgment which I set out at [30]. See also [31].

The RTA’s Grounds of Appeal

98 Mr Watson of Senior Counsel, who appeared with Mr McInerney of Counsel, for the RTA, in address founded the appeal of the RTA as to liability on three matters. It is convenient to deal with the appeal on that basis. I shall deal with them seriatim.

99 The three matters are:

(b) A challenge to the way in which the evidence was used to found a finding of negligent installation by the RTA.

(c) An issue as to the duty of care of the RTA and breach of that duty if there was one.

The Installation

100 Apart from the general submission that the evidence did not establish that more probably than not the RTA had installed the post Mr Watson took issue with a number of aspects of the judgment dealing with the topic.

101 He submitted that there was a “little inconsistency” between Judge Bishop’s view that “it is very likely that the installation of the subject post took place somewhere around the end of 1983” and his statement “the exact date when the post was installed is not totally clear.”

102 To my mind the latter passage, particularly when read in its context, conveys the notion that the Judge was not limiting his conclusion that the RTA more probably than not installed the post to the correctness of his most likely date of 1983.

103 As it happens I agree with Mr Watson’s submission that an examination of Exhibit G does not support the view that the post was installed in 1983. The subject post is shown as “existing” on the plan in Exhibit G and the recommendation made in the Exhibit appears to refer to the addition of a new post 21 metres to the west of that post to indicate the commencement of the bus zone. I should perhaps add that Mr Tozer gave evidence that the post shown as “existing” was in the location of the post he later photographed and examined.

104 Judge Bishop had rejected as a “little too speculative” reliance upon a letter written in May 1974 by a Mr Arnold which contained the following passage:

“Some months ago there was a car accident outside Thornton Place and soon thereafter the “No Standing” metal sign which was demolished was replaced.”

105 The purpose of the letter was to request attention to a wooden post which had been damaged at the same time and remained lying on the pavement.

106 It was put that regard to the topography and other matters should have led Judge Bishop to accept that the destroyed and replaced post was the one involved in this matter and thus accept that the relevant post was installed in 1974.

107 I am not persuaded that it was not reasonably open to Judge Bishop to take the view that he did of this letter.

108 Judge Bishop said in his judgment:

“However, the surrounding documentation to which reference has been made establishes as I consider Mr Jackson Clark conceded that it is more probable than not that the installation of the post was done by the RTA.”

109 Apart from contending that the documentation did not expressly show installation by the RTA of the relevant post, which is correct, Mr Watson challenged the assertion that Mr Clark made the concession relied upon.

110 I agree with the RTA’s written submissions that the only part of Mr Clark’s evidence that could arguably found the suggested concession is his evidence in cross-examination as follows:

“Q. Coming back to my question, I want you to assume there are hundreds of this type of document in existence over the past 20 years, passing between the council and the RTA covering removal, installation and the movement of the safety signs, does that not suggest to you that Woollahra Council, was a council that invariably followed the practice of requesting to the RTA to carry out such works.
A. Removal and installation. These documents we’ve been looking at concern installation, I don’t think removal’s mentioned but I think it’s said that the documents certainly describe a practice of installation.

111 I also agree, with respect to the trial judge, that this passage does not contain the concession relied upon by the Judge.

112 Further, the question relied upon an assumption that was not, in the event, established albeit many documents were tendered. The period referred to went back only to 1984 and had little, if any, probative value as to the position before that time.

113 Mr Watson seized upon the passage in the judgment:

“There is no evidence to suggest that it was installed by the Council. Nor is there any suggestion of work in the area done by developers or other statutory authorities.”

114 As I understand his submission he took the last sentence to mean that there was no evidence against the RTA that it installed the post. I agree that if that there were so the claim would fail, however, this passage does not refer to the RTA, or any predecessor, but to statutory authorities other than the parties to this case.

115 In response to the challenge on this issue Mr Williams and Mr Davies, their interests being the same on this issue, relied upon certain evidence given by Mr Lindsay to which I shall come. Mr Watson, for his part, sought to “destroy” that evidence.

116 Mr Lindsay gave the following evidence in cross-examination by Mr Polin, who appeared for the Council at the trial:

117 Mr Lindsay had been employed for many years in senior positions with the RTA and its predecessors (nothing turns upon the changes in responsible entity) having responsibility for the erection of signs and posts such as that involved in the present matter.

118 Mr Watson, after the submissions to which I have referred, put that the finding in question should be overturned. He went on:

119 Before going to those references it is relevant to note that Mr Watson did not submit that Mr Lindsay was not qualified to express a view on this matter.

120 The first reference was to the cross-examination leading up to the passage I set out in [110]. I should set it out:

Q. That is right, but generally speaking where a council had not taken up the block agreement, 99 out of 100 signs put up in that particular council area could have been done by the RTA.

OBJECTION. OVERRULED

121 Mr Watson then went to earlier passages of cross-examination where Mr Lindsay gave the following evidence:

“Q. For 30 years or more municipal councils in Sydney have had road safety signs on footpaths installed by the RTA?
A. Yes.

Q. There is no exception to that rule is there because the RTA has the statutory authority to erect the posts, is that right?
A. Yes.

Q. So the only body that would erect a sign containing a road safety post in a footpath in the Sydney area in the last 30 years is the RTA?
A. No that’s incorrect.

Q. Who else would?
A. Councils.

Q. When would council do it?
A. All the time.

Q. Why?
A. Because they do their own work. That’s happening all the time, I mean it could have been done by a developer, I’m not quite sure, it could have been anybody, Telecom or anything could have done something up there.

Q. Why would, for example, a telephone --?
A. Could have been a plumber putting a line in, there could have been a drain there, I’m not quite sure. There are numerous people who work on the footpaths.

…………

Q. You cannot point to any sign on the footpath having been broken up in a manner consistent with anyone working on a utility, can you?
A. I can’t say that either. I don’t know who broke up a footpath like that. It could have been numerous people that broke it up.”

………….

Q. Neither can you find a record that your crews installed the post, is that what you say?
A. That’s correct.

Q. It is extremely likely, is it not, that one of your crews did install this post?
A. I can’t say that.

………..

Q. You have no doubt, do you, that those bus zone and no standing signs and the posts upon which they sit would have been erected by the RTA, do you?
A. They could have been.

………….

Q. It is almost certain, is it not, that bus zone and no standing zone signs and posts were erected by the RTA in that location, is it not.

OBJECTION.

HIS HONOUR: Noted.

?

122 To my mind these passages do not “destroy” the effect of the passage relied upon by Mr Williams and Mr Davies. The effect is that of a witness not prepared to make further concessions against the interests of his employer than were necessary, but willing to truthfully answer the questions put to him even though such a question might involve a clearly significant concession. Ultimately Mr Polin asked the right question and it seems to me clear enough that Mr Lindsay answered it truthfully. I note that Judge Bishop observed that he was a straightforward man. The Judge also said that he was an experienced bureaucrat and such a description is not inconsistent with the way in which Mr Lindsay dealt with the matters put to him.

123 It is not clear why Judge Bishop did not refer to this evidence. He may have preferred to deal with the issue on the particular basis which he considered was made out rather than a more general approach based upon Mr Lindsay’s evidence. There is no indication that he regarded Mr Lindsay as an unsatisfactory witness, indeed quite to the contrary.

124 It has occurred to me that it may be that Judge Bishop referred to Mr Clark in error. To speak of a concession would seem more appropriate to a senior manager of the RTA than the expert witness Mr Clark. On the other hand, the reference to documentation suggests, although not conclusively, association with the cross-examination of Mr Clark to which I have referred earlier [110].

125 The possibility was not referred to in address and I proceed on the basis that the Judge’s view is as set out in the judgment.

126 A further matter not raised in address but which I consider requires consideration is whether the passage in Mr Lindsay’s evidence is limited as to time and therefore of reduced assistance.

127 As expressed the passage refers to “prior to that period” that is, prior to the Council taking up the block grant agreement “in the last year or two”. It is unnecessary to go to a description of that agreement other than to note that it was adopted after any relevant event and produced a change in the RTA’s work for the Council.

128 However, when Mr Williams cross-examined Mr Lindsay he referred to periods of time albeit in broad terms. The following evidence was given:

…..

129 There were further references in the cross-examination by Mr Williams to periods of thirty years and twenty-five years. There was reference to work by developers in periods of thirty or forty years.

130 In re-examination, after an overnight adjournment, the following evidence was given:

131 However, despite the reference to Mr Polin referring to “developers” there was no reference in his cross-examination to periods of time other than the “last year or two” or “prior to”.

132 The periods of time of the order of twenty-five to thirty and forty years referred to during cross-examination by Mr Williams and in re-examination were periods put by the cross-examiner. They were not limitations expressed by Mr Lindsay. In my view the answer he gave to Mr Polin should be accepted as applying to all relevant times even if that went back beyond thirty or more years. He was in a position to know from his own experience and from the records of the section within which he worked of the matters referred to in his answer.

133 It is material to note that in re-examination no questions were directed to limiting the period over which Mr Lindsay’s clearly material answer applied. An objection was taken and overruled. It does not appear what the ground of objection was, however, there is no ground of appeal directed to it.

134 I consider that Mr Lindsay’s evidence leads to the conclusion that 99 out of 100 signs of the traffic control signs (which would include bus stops) in the Council’s area at the time of Mrs McGregor’s accident had been installed by the RTA or its predecessor. It is to be remembered that the alternative installers were not at large, they were developers or the Council.

135 In my opinion the evidence of Mr Lindsay is such that it could not properly be said that the conclusion reached by Judge Bishop on this issue was not reasonably open to him.

136 The RTA has submitted that this Court should set aside the finding on this issue and determine it afresh for itself. If this course were followed I would arrive at the same conclusion as Judge Bishop. I would do so substantially on the evidence of Mr Lindsay.

137 I am satisfied that more probably than not the RTA installed the post.

Negligent Installation

138 Mr Watson put that there was no evidence that the way in which the post was installed, whether it be in 1983, 1974 or some other time, was inadequate according to the standards of that time.

139 I will not revisit the evidence I have discussed earlier as to the expert view of the installation. However, I consider that there was ample material from which the trial judge could infer that the installation was defective at the time at which it was done whenever that was.

140 Mr Watson drew attention to the absence of an estimate of cost to rectify the damage at the time the installation was done and to evidence as to deterioration since that time.

141 However, Mr Tozer gave evidence that there would have been little deterioration and that what there was would have been caused by the defective work allowing the intrusion of water. I do not consider that these matters establish that Judge Bishop was wrong in finding that the original installation was negligently carried out.

Duty of Care and Breach of Duty

142 Mr Watson raised an issue as to whether the RTA owed Mrs McGregor a duty of care or, if it did, whether it had breached that duty, particularly having regard to the “effect of many long years since the absence of an accident, and the accident only occurring under what seemed to be difficult conditions.”

143 In his judgment Judge Bishop reviewed a number of the leading cases dealing with pedestrians and quoted the passage from the judgment of Mason J in Shirt which I have set out above at [29].

144 It is, I consider, clear that his Honour applied the “Shirt calculus” in arriving at the verdict against the RTA. There is ample evidence to support the conclusion he reached and I do not think that there is call for an examination of authority to take the view that he has not been shown to be in error in his conclusion.

145 It may be accepted that the passage of time is relevant to apportionment but I do not consider, on the facts of this matter, that it goes to liability.

Other Grounds

146 The RTA’s written submissions raise other matters, particularly in relation to the finding that Mrs McGregor did not fail to take reasonable care for her own safety. These matters, I consider are sufficiently dealt with for the purposes of this appeal in my discussion of the issues in respect of the appeal by the Council.

Conclusion on Liability of the RTA

147 In my view the challenge as to the finding of liability against the RTA is not made good.

Apportionment

148 Having earlier dealt with the manner of the post’s erection and the condition of the footpath thereafter Judge Bishop set out his views on the issue of apportionment quite shortly. They appear at [31] above.

149 In its written submissions the Council put:

“The apportionment was erroneous. At best if there was a breach of duty by both RTA and the Council, the RTA ought [to] have borne the greater majority to a significant extent, it is suggested 80% with the Council bearing no more than 20%. That is, in short, because the RTA created the danger at the time of installation of the post, it undertook the workmanship which was inappropriate, it made no attempt, on the evidence, to alert the Council to the potential danger and failed to check for any danger having regard to its workmanship, and the only failure on the part of the Council was, at best, a failure to inspect, then it is submitted that by far the greater proportion ought to be borne by the RTA.”

150 The RTA did not seek to interfere with Judge Bishop’s apportionment albeit Mr Watson did observe that this was not because it thought it had “a good deal from his Honour.”

151 Rather the RTA put that the apportionment was not unreasonable or plainly unjust and was reasonably open on the material before him.

152 In Oxley County Council v Macdonald & Ors [1999] NSWCA 126 the trial judge had not explained his apportionment decision. Sheller JA, with whom Priestley and Powell JJA agreed, said at [55]:

House v The King

153 It may, I think, be properly inferred from his short remarks that Judge Bishop attached real significance to the “long period of time” to which he referred as opposed to the single act of bad workmanship.

154 In any event I do not think that the matters urged in the Council’s submissions weigh against the long period of time that the obvious (in daylight) damage remained in place so as to establish that the Judge’s decision was unreasonable or plainly unjust.

155 As was observed by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493:

British Fame (Owners) v Macgregor (Owners)

156 In Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Ltd (2001) 53 NSWLR 626 Fitzgerald AJA said at 653:

“It is insufficient for an appellant to persuade an appeal court that, when all material factors are considered, the trial judge’s apportionment is different from that which the appeal court would have decided. An appeal court is not entitled to interfere if the trial judge’s apportionment was reasonably open.”

157 I consider that Judge Bishop’s apportionment was reasonably open and that the challenge to that apportionment should fail.

Damages

158 The only challenge as to quantum relates to the award of future domestic assistance in the sum of $56,016. The challenge is not based upon the calculation but rather upon a contention that, having regard to the terms of subs 15(3) of the Civil Liability Act 2002 (the Act), no damages should have been awarded for future “gratuitous attendant care services”.

159 Section 15 relevantly provides:

“ Damages for Gratuitous attendant care services

(1) - - - -

(2) - - - -

160 Judge Bishop, having dealt with an argument based upon another requirement of s 15, which has not been relied upon in the appeal, summarised the view he took as to both past and future care as follows:

Matchan v Lyons

161 The contention that a future allowance of four hours a week would attract the prohibition contained in ss 15(3)(a) was not raised before Judge Bishop. However, Mr Williams, correctly, did not submit that it was not available on the appeal. (See Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Coulton & Ors v Holcombe & Ors (1986) 162 CLR1).

162 However, Mr Williams did submit that, in the events that had happened in respect of past entitlement to care expenses, the prohibition has no application to Mrs McGregor’s situation. She had, he submitted, passed the “threshold” provided by the subsection and was accordingly not prohibited from recovering in the future for assistance of less than six hours per week.

163 In Geoghan v D’Aubert [2002] NSWCA 260 Stein JA, with whom Handley JA and Foster AJA agreed, considered the proper construction of s 72(2) of the Motor Accidents Act 1988. That subsection is in identical terms to subsection 15(3).

164 In Geoghan Stein JA accepted that “a strict legal construction would likely produce the answer that no compensation is payable if the services are provided for less than six hours and for less than six months. However, if services are provided, for example for five hours but for more than six months, that is no bar to recovery.”

165 However, he preferred an alternative construction that no compensation is recoverable if the services are provided for less than six hours per week and no compensation is recoverable if the services are provided for less than six months.

166 His Honour preferred that construction on extrinsic material be considered, the legislative history of s 72 and the object provisions of the Motor Accidents Act 1988.

167 Whilst not all those features apply identically to the Act the purpose of limiting damages clearly does and the section should be given the same construction in the Act. (Lennon v Gibson and Howes Ltd (1919) AC 709 at 711-12).

168 Mr Williams did not submit otherwise. Indeed he drew attention to the circumstance that the Premier in his second reading speech introducing the Act merely observed that this provision was drawn from the motor accidents and health liability schemes. (Hansard Parliamentary Debates Legislative Assembly (2085).

169 Further, Mr Williams expressly did not contend that Geoghan had been wrongly decided but submitted that it could be distinguished in that in that case the plaintiff had not received relevant assistance which had crossed the “threshold”.

170 Mr William’s concept of a “threshold” is drawn from references in Parliamentary speeches relating to the Motor Accidents (Amendment) Bill 1993. The material is collected and the point made in the second reading speech of the Attorney-General when he said:

“In this respect I note the amendment to proposed section 72 to which I have adverted. Section 72 of the Act currently provides that compensation provided by family members in the form of home care services is payable only after these services have been provided for six months and then only where the services exceed six hours. This provision was found to be counter-productive, as claimants tend to engage commercial services for which the full costs may be claimed. The Motor Accidents (Amendment) Bill removes the six-hour six-month barrier. The increase in premiums arising from this change was originally estimated at $1 per vehicle. However recent actuarial estimates indicate that this figure could be as high as $11 per vehicle. Coupled with the increase in premiums of $10 per vehicle resulting from the change to the verbal threshold in section 79 (1), a further increase of up to $11 is considered to be unacceptable. In the circumstances, it is proposed to restore the six-hour six-month threshold. However, I wish to emphasise that the proposed amendments would still entitle claimants to compensation for the whole period, including the first six hours six months, provided they meet the six-hour six-month threshold. With those comments I commend the bill.” (Hansard Parliamentary Debates Legislative Council (4501).

171 Mr Williams put that Judge Bishop’s findings established that in respect of past assistance Mrs McGregor had clearly crossed the “six-hour six month threshold” and that having done so the prohibition no longer applies.

172 In my view this concept requires a construction of ss 15(3) which sets aside the provision for “services which are provided” on the one hand and “are to be provided” on the other. I do not consider such a construction to be open on the clear words of the section.

173 Mr Watson, whose arguments Mr Davies adopted, referred to McConachie v Pack [2004] NSWCA 148 and to Matchan v Lyons [2003] NSWCA 386 as cases which referred, impliedly at least, to a six hour threshold. I do not consider the references to be specific enough to provide assistance in considering the argument that Mr Williams has advanced.

174 However, as I have indicated, I do not consider that his argument, attractive though it is in some respects as to long-term assistance needs, can prevail having regard to the terms of the subsection. The RTA and the Council are entitled to succeed on this point. I propose that the verdict sum be reduced by $56,106.

Orders.

175 I propose the following orders:

(a) Appeal allowed in part.

(b) Set aside the verdict and judgment against the appellant and in lieu thereof order verdict and judgment against the appellant in the sum of $178,941.

(c) Cross appeal allowed in part.

(d) Set aside the verdict and judgment against the cross-appellant and in lieu thereof order verdict and judgment against the cross-appellant in the sum of $178,941.

(e) Confirm the orders of Bishop DCJ as to apportionment.

(f) In default of agreement the parties to file written submissions as to costs of the appeal, cross appeal and trial within seven days.

176 BELL J: I agree with Campbell AJA.

**********

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Citations

Roads and Traffic Authority v McGregor [2005] NSWCA 388

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CITATION:	Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388
HEARING DATE(S):	30/06/05
JUDGMENT DATE:	11 November 2005
JUDGMENT OF:	McColl JA at 1; Campbell AJA at 2; Bell J at 176
DECISION:	Appeal allowed in part. Set aside the verdict and judgment against the appellant and in lieu thereof order verdict and judgment against the appellant in the sum of $178,941. Cross appeal allowed in part.Set aside the verdict and judgment against the cross-appellant and in lieu thereof order verdict and judgment against the cross-appellant in the sum of $178,941. Confirm the orders of Bishop DCJ as to apportionment. In default of agreement the parties to file written submissions as to costs of the appeal, cross appeal and trial within seven days.

CATCHWORDS:	Appeal - Negligence - Personal injury - Damaged pavement- Obvious danger in daylight not at time of injury - Apportionment - Damages - Construction of subs 15(3) of Civil Liability Act 2002.
LEGISLATION CITED:	Civil Liability Act 2002 Motor Accidents Act 1988 Motor Accidents (Amendment) Bill 1993
CASES CITED:	Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Maviglia v Mavaglia [1999] NSWCA 188 Fox v Percy [2003] 197 ALR 201 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 Van De Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Fairfield City Council v Cheryl Petra [2003] NSWCA 150 Oxley County Council v Macdonald & Ors [1999] NSWCA 126 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Ltd (2001) 53 NSWLR 626 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Coultin & Ors v Holcombe & Ors (1986) 162 CLR Geoghan v D'Aubert [2002] NSWCA 260 Lennon v Gibson and Howes Ltd (1919) AC 709 McConachie v Pack [2004] NSWCA 148
PARTIES:	Roads and Traffic Authority - Appellant Anne McGregor - First Respondent Woollahra Municipal Council - Second Respondent
FILE NUMBER(S):	CA 40277/04
COUNSEL:	Mr G M Watson SC with Mr A J McInerney - Appellant Mr M L Williams SC with Mr I A Newbrun - First Respondent Mr D L Davies SC with Mr N J Polin - Second Respondent
SOLICITORS:	McCabe Terrill - Appellant Carroll & O-Dea - First Respondent Phillips Fox - Second Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2941/02
LOWER COURT JUDICIAL OFFICER:	Bishop DCJ