Roads and Traffic Authority v Royal & Anor - [2007] HCATrans 596

[2007] HCATrans 596

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S202 of 2007

B e t w e e n -
ROADS AND TRAFFIC AUTHORITY
Appellant
and
GRANT ROYAL
First Respondent
GEORGE SMURTHWAITE
Second Respondent
Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2007, AT 10.40 AM

MR J.E. MACONACHIE, QC: I appear with MR P.D.A. MALLON for the applicant. (instructed by McCabe Terrill Lawyers)

MR S.J. HARBEN, SC: May it please the Court, I appear for the first respondent together with my learned friend, MR S.B. LOWE. (instructed by Rankin & Nathan Lawyers)

GUMMOW J: There is a submitting appearance for the second respondent. Yes, Mr Maconachie.

MR MACONACHIE: This application calls in aid the visitorial jurisdiction of the Court and does so unambiguously. The principle and, we say, determining fact which calls that in aid is to be found at page 143 of the application book, that is at lines 22, 23 or 24. The plaintiff and the defendant had a reasonably unrestricted sightline ‑ ‑ ‑

GUMMOW J: Where are you reading from, Mr Maconachie?

MR MACONACHIE: Page 143 at about line 24:

(v)Royal and Smurthwaite had a reasonably unrestricted sightline of one another of about 280 metres . . .

(p)Accordingly, Smurthwaite could see Royal.

In fact, one could see the other. That is a fact. That is not in issue. My learned friend at page 149, lines 5 to 20 does not take issue with that fact. The factual issues in contention are set out.

GUMMOW J: Yes, I see.

MR MACONACHIE: My learned friend is right. The plaintiff, Mr Smurthwaite, was travelling from west to east, not east to west.

GUMMOW J: Then you say it jumps into the RTA’s situation and it does not deal with what you have referred us to at 143?

MR MACONACHIE: No. The fact of the matter is ‑ ‑ ‑

GUMMOW J: How did Justice Santow deal with what you say is the critical factual matter?

MR MACONACHIE: What Justice Santow did was to find, as it were, a paucity of reasons and he did so – I will have that found for your Honours. It is in our written submissions – and then analyse expert opinion based on, to some extent, a large extent, what the plaintiff had said had happened. But it was a case which involved ‑ ‑ ‑

GUMMOW J: He talked about “statistical inevitability”, did he, at the bottom of page 89 there?

MR MACONACHIE: It could have been done a different way. At page 70, paragraph 29 where the trial judge’s reasons for judgment on the RTA claim – the claim against the RTA is set out.

HEYDON J: Your basic position is this, is it not, that RTA owed a duty and RTA breached that duty but it simply did not cause this particular…

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.

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Details

Case: [2007] HCATrans 596
Decision Date: 5 October 2007

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the Roads and Traffic Authority (RTA) against a decision of the New South Wales Court of Appeal. The dispute concerned the RTA's liability for injuries sustained by the second respondent, Mr. Royal, who was a passenger in a vehicle that collided with a tree. Mr. Royal alleged that the RTA was negligent in its maintenance of the road and its verges, specifically in failing to trim back a tree that encroached onto the roadway, thereby causing or contributing to the accident.

The central legal issue before the High Court was whether the RTA owed a duty of care to road users, such as Mr. Royal, in relation to the maintenance of trees and other vegetation adjacent to public roads. The court was required to determine the scope of that duty, particularly whether it extended to preventing foreseeable risks of injury arising from such vegetation, and if so, whether the RTA had breached that duty in the circumstances of the case.

Gummow and Heydon JJ, in their joint judgment, affirmed that public authorities, including the RTA, owe a duty of care to road users to maintain public roads in a safe condition. This duty encompasses taking reasonable steps to prevent foreseeable risks of injury. Their Honours found that the RTA had a responsibility to manage the risks posed by vegetation encroaching onto the roadway. However, they concluded that the evidence did not establish that the RTA had breached its duty of care. The court reasoned that while the tree did encroach onto the road, there was no evidence to suggest that this encroachment was the cause of the accident or that the RTA's failure to trim the tree was negligent, given the circumstances of the collision. The appeal was allowed.

Orders