Ryan v Pledge

[2001] NSWSC 259

CITATION:	Ryan v Pledge [2001] NSWSC 259
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20099/95
HEARING DATE(S):	29 January - 13 February 2001
JUDGMENT DATE:	10 April 2001
PARTIES :	Nadia Catherine Ryan by her tutor Heather Ryan (Plaintiff) Jack Pledge (First Defendant) Blue Mountains City Council (Second Defendant) Roads and Traffic Authority (Third Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :	A Morrison SC / S Torrington / J Walsh (Plaintiff) PR Garling SC / JM Morris (First Defendant) M Windsor / G Gemmell (Second Defendant) D Davies SC / S Woods (Third Defendant)
SOLICITORS:	Stacks - The Law Firm (Plaintiff) Abbott Tout (First Defendant) Phillips Fox (Second Defendant) IV Knight, Crown Solicitor (Third Defendant)
CATCHWORDS:	NEGLIGENCE - pedestrian struck by motor vehicle - liability of driver - liability of highway authorities - misfeasance/non-feasance rule - contributory negligence of 9 year old pedestrian - CONTRIBUTION BETWEEN TORTFEASORS - damages against one tortfeasor capped by Motor Accidents Act 1988 - damages against other defendants uncapped - how contributions apportioned.
LEGISLATION CITED:	Motor Accidents Act 1988 Damages (Infants and Persons of Unsound Mind) Act 1929 Roads Act 1993 Workers Compensation Act 1987 Railways Acts 1914 to 1955 (Q) Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 (Q) Law Reform (Miscellaneous Provisions) Act 1946
CASES CITED:	Buckle v Bayswater Road Board (1936) 57 CLR 259, Gorringe v Transport Commission (Tas.) (1950) 80 CLR 357, Webb v State of South Australia (1982) 56 ALJR 912, Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232, Lake Macquarie City Council v Bottomley [1999] NSWCA 28, Donaldson v Municipal Council of Sydney (1924) 24 SR 408, Turner v Ku-ring-gai Municipal Council (1990) 12 MVR 321, 72 LGRA 60, Gloucester Shire Council v McLenaghan [2000] NSWCA 208, Perre v Apand Pty Ltd (1999) 198 CLR 180, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, Sutherland Shire Council v Heyman (1985) 157 CLR 424, Pyrenees Shire Council v Day (1998) 192 CLR 330, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Stovin v Wise [1996] AC 923, McHale v Watson (1964) 111 CLR 384, Figueroa v NSW Insurance Ministerial Corporation (unreported - Simpson J - 18 March 1998), Roads and Traffic Authority v Scroop (1998) 28 MVR 233, Rouse v Shepherd (1994) 35 NSWLR 250, Bitupave Ltd v Bollington (1998) 28 MVR 223, Lanza v Codemo [2001] NSWSC 72, Unsworth v Commissioner of Railways (1958) 101 CLR 73, Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199, O'Sullivan v Thai Airways International Ltd (1998) 28 MVR 469.
DECISION:	Judgment for plaintiff against each defendant. Proposed orders for contribution indicated.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Tuesday, 10 APRIL 2001
20099/95 Nadia Catherine RYAN by her tutor Heather RYAN v Jack PLEDGE & ors
JUDGMENT

1    HIS HONOUR. On the afternoon of 9 July 1994, the plaintiff, Nadia Ryan, then aged 9½ years, suffered serious injuries including brain damage when she was struck by a motor vehicle being driven by the first defendant on a service road adjoining the Great Western Highway at Blaxland after stepping off the nature strip dividing the highway from the service road. She has therefore brought these proceedings against the first defendant alleging that he was negligent in the driving of his motor vehicle, and against the second defendant, the Blue Mountains City Council, and the third defendant, the Roads and Traffic Authority, alleging that each of them, or in the case of the third defendant, its predecessors, were negligent in the design, construction, management and maintenance of the service road and of the nature strip.

2    The proceedings against the second and third defendants are proceedings at common law whilst those against the first defendant are governed by the provisions of the Motor Accidents Act 1988 ("MA Act"). Each of the defendants has brought cross-claims against each of the other defendants claiming contribution or indemnity, and there were formerly cross-claims by the first defendant against the plaintiff's father, Gregory Neil Ryan and by him against each of the second and third defendants. The cross-claim by the first defendant against the plaintiff's father was dismissed on the third day of the hearing, 31 January 2001, and the cross-claims by him against the second and third defendants went with the dismissal of the cross-claim against him (see my separate judgment of 31 January 2001).

3    In answer to the plaintiff's claim each of the defendants, apart from denying negligence on their part, allege contributory negligence on the part of the plaintiff. Subject to my finding a judgment or judgments in favour of the plaintiff, and subject to my approval pursuant to the Damages (Infants and Persons of Unsound Mind) Act 1929, the amount of damages has been agreed between the parties.

4    Although the Great Western Highway runs in a generally east/west direction, in the area where the accident occurred its direction is actually north/south and for this reason the traffic travelling towards Sydney is sometimes referred to in the evidence as the southbound traffic and at other times as the eastbound traffic, with the traffic headed towards Katoomba described in a corresponding manner. The area is not far to the west of the Blaxland Shopping Centre and is almost directly opposite Coughlan Road which forms a T-intersection with the highway. In the area the highway caters for two lanes of traffic in each direction with an additional lane in each direction for breakdown and/or parking, whilst in the direction of the Sydney bound traffic there is an additional lane for traffic wishing to make a right hand turn into Coughlan Road. The highway is divided by a concrete median strip on which is erected an arc weld mesh fence about 5 feet high, preventing pedestrian access across the highway, except at the Coughlan Road intersection where the arc weld mesh fence comes to within about 2 feet from the end of the median strip. About 50 metres south of Coughlan Road is a pedestrian crossing controlled by traffic lights.

5    On the eastern side of the highway is the service road where the plaintiff sustained her injuries. This road is about 7.2 metres wide and runs from Kidman Street at its south end, north to and beyond Haymet Avenue. On its eastern side there are near Kidman Street a number of business premises including a restaurant and as one proceeds further north a number of houses until, virtually opposite the Coughlan Road intersection, is a large store known in 1994 as the "Highway Home Hardware Store", now the "Highway Hardware Store", in front of which is a parking bay providing spaces for 12 vehicles to park at 90° to the kerb, and around this area there is on the kerb a concrete footpath, although the rest of the kerb is unsurfaced.

6    Between the service road and the highway is a nature strip approximately 3.4 metres wide on which there was a considerable amount of vegetation by way of trees and shrubs, but since then the trees and shrubs have been reduced considerably, both in quantity and density.

7    On the highway side of the nature strip there was a post and rail fence less than 1 metre high with gaps between each of the rails. This post and rail fence was sufficient to prevent motor vehicles moving out of the breakdown lane of the highway onto the nature strip but permitted pedestrians access onto and through the nature strip towards the service road. The main entrance to the hardware store was at the time in the centre of the building, described by some of the witnesses as under the "O" of "Home" as shown in the photographs, and almost directly opposite this was what was described in the evidence as a "well trodden track" across the nature strip through the vegetation.

8 The entrance to the hardware store has now been moved further to the south, the post and rail fence has deteriorated and some of the rails are missing, although most of the posts remain, and the "well trodden track" is no longer identifiable as well trodden. Further descriptions of the site appear from the various experts' reports and a view was held on site on the second day of the trial when the various features were pointed out. This view not only enabled a better appreciation of the evidence that was subsequently given but itself constituted evidence pursuant to s 54 of the Evidence Act 1995. Between the eastern end of the controlled pedestrian crossing on the highway and the service road there was a break in the shrubbery with asphalt surface and with a higher post and rail fence where pedestrians could wait. There was no pedestrian crossing marked on the service road.

9    The area and relevant features are depicted in the various photographs particularly Ex. C, consisting of photographs taken by police on the day of the plaintiff's accident and therefore showing the condition of the area and the vegetation in particular at that time, also Ex. D taken some weeks thereafter, whilst the photographs in Ex. 10 taken almost 3 years later give some idea of the view across the highway from the north western kerb of the Coughlan Road intersection, but do not show the vegetation or the post and rail fence in the condition it was in at the time of the plaintiff's accident. The distance from Kidman Street to the scene of the accident is approximately 180 metres.

10    Gregory Ryan, the plaintiff's father, made two statements to police relating to the accident on 20 July and 5 October 1994 respectively (Exs. J & K) and gave evidence. He said that at about 2.15 pm on Saturday 9 July he was travelling along the highway with his wife and two daughters, the plaintiff and her sister, Danielle, he parked the car in the breakdown lane on the western side of the Great Western Highway just north of Coughlan Road intending to go to the hardware store on the other side of the road. His daughters both wished to come with him so he took their hands, they crossed the western carriage way of the highway from the northern kerb of Coughlan Road to the median strip where they stopped momentarily, checked the traffic and then proceeded across the balance of the highway then onto the nature strip dividing the highway from the service road.

11    He said that Nadia was the first to pass through the post and rail fence, followed by himself and then Danielle and they came across the nature strip in the area marked by the red line joining the two red circles on Ex. D3. He was holding the hand of each of them and they were on what has been described as the "well trodden track" leading through the post and rail fence and across the nature strip. He said they moved across the nature strip until they were approximately 18 inches to 2 feet from the kerb which he marked on Ex. C13 with Nadia on his left and Danielle on his right, see also Ex. C1 where the "well trodden track" appears clearly.

12    He said that at this stage he became aware of movement of a vehicle in front of the parking area of the hardware store and on turning his head to the left noticed there was another vehicle approaching from that direction as well. Having stopped, he released the pressure on the children's hands and Nadia withdrew her hand from his. He turned down to see if Danielle was all right, lifted his head and noticed that Nadia took a step away from him. From the corner of his eye he saw a red object moving through some shubbery to his right. He screamed out because he realised it was a vehicle moving at speed, but Nadia was on the road and she was hit. He tried to grab her but she was just out of reach. He heard no sound of braking or anything of that sort before the impact. On being hit by the vehicle Nadia was thrown in the air for about 5 to 6 metres before she hit the ground and then she travelled a further distance on the ground, 1½ to 2 metres before coming to rest.

13    When police attended the accident scene they made a number of marks on the road, which are still there, and are shown in Ex C. The police witnesses could not positively identify what the left of the two arrows shown in Ex. C1 represented, but it is consistent with Mr Ryan's evidence of where the family came through the post and rail fence and where Nadia was struck by the vehicle. The right hand arrow is consistent with a piece of headlamp debris found on the nature strip and the circles indicate other debris and blood stains. The small oblong marks another piece of debris from the defendant's vehicle (Ex. 7 and T 27).

14    In cross-examination of Mr Ryan it was suggested that the family went through a gap in the post and rail fence further to the north than the one he claimed, which corresponds with the rectangular marking (referred to in the evidence as the western gap) and that such markings corresponded to the point of impact. He agreed that such would have been a more direct route to the hardware store, although this is not the impression which I got from standing at the Coughlan Road intersection at the view, but he insisted (T 168) that they went through the eastern gap because it was easier for the three of them to walk across the nature strip at that point as it was not as heavily wooded as at the western gap. He marked on Ex. X3 what he recalled as being the point of impact (T 182). There was affidavit evidence from the mother, admitted by consent, to the effect that both girls were wearing their netball uniforms on the day in question, consisting of bright yellow coloured tops.

15    I formed a favourable impression of Mr Ryan as a witness. Although obviously genuinely concerned for his daughter and the injuries she had suffered, and apparently feeling some degree of guilt on his own part for letting her hand go when he did, he appeared to be trying to tell the truth as best as he could recall; and notwithstanding his obvious desire to help his daughter, was at times prepared to make concessions which may not have helped her case. In addition he was not prone to guess or make assumptions in respect of matters which he could not clearly remember. I accept him as a truthful and reliable witness.

16    The first defendant, Jack Pledge, said that on the day of the accident he turned into the service road at Kidman Street, heading north and as he proceeded along the service road he saw a number of cars parked in the parking bay outside the hardware store and a car coming along the service road from the opposite direction towards him. He said that one of the cars was backing out of the parking bay so he slowed down immediately by taking his foot off the accelerator as he could see a potential traffic hazard developing between the car backing out and the one coming rather quickly down the service road towards him. He said that at the point prior to him taking his foot off the accelerator he was not going very fast, "around 50 kph, between 50 and 60 kilometres perhaps" (T 356). He said that where he took his foot off the accelerator was in the vicinity of the pedestrian crossing across the highway. He saw the car backing out, stop and the other car coming towards him slowing down, at which stage he started to accelerate again, being then about level with the hardware store, and then he heard a bang and saw the plaintiff bounce off his car. He stopped immediately, got out of the car, saw what had happened and ran inside the hardware store and asked them to call the ambulance.

17    He said that when he took his foot off the accelerator his vehicle was close to the imaginary centre line but to the left of it, but at the time his vehicle came into contact with the plaintiff he was much further to the left because he was giving the vehicle backing out and the vehicle coming towards him as much room as he could. He estimated that his speed at the time he collided with the plaintiff was around 40 kph, although in his statement to police (Ex. E) he said "slower than 60". He said that prior to the collision he did not see the pedestrian and did not see any person coming across the nature strip in the approximate location of the plaintiff, and that on the day of the accident, the plants and shubbery on the nature strip were very full, very bushy, hanging over the kerb up to 300 or 400 millimetres.

18    Although in a statement made to police immediately after the accident, he said that immediately on the impact he pulled over to the right and stopped, when giving evidence he had no recollection of veering to the right as he applied his brakes after he hit the plaintiff, but he finished up past her (T 372).

19    He conceded that if he had seen the plaintiff he would not have had to swerve very far to his right to miss her, and that given the presence of shops, the pedestrian crossing, the narrowness of the service road and the overhanging vegetation, it was an area which required particular care for a motorist on the day of the accident (T 389). He agreed that his attention was distracted by the traffic on the road (T 391), that he was looking at what was transpiring to the right in front of him and that it was as he glanced back to look directly in front of him that he first saw the plaintiff at the same time as the collision occurred (T 372). Until then he had not seen anyone coming across the nature strip towards the hardware store (T 359), and I am satisfied that because his attention was distracted by the traffic on the road to his right ahead of him he was not watching to the left nor directly in front of him, and it was as he glanced back to look directly in front of him that he first saw the plaintiff contemporaneously with the collision.

20    Mr Pledge also struck me as an honest witness, doing his best to recall events as he remembered them, but the sum effect of his evidence was that his attention was distracted by the other vehicles to his right, he was not watching to his left and he did not see the plaintiff until he hit her. My only reservation about his evidence is as to his speed and I consider that, as he is not likely to have overestimated his speed at the time, it was probably closer to 60 kph than to 50 kph or lower.

21    Police attended the accident scene on the day of the accident and caused the photographs which constitute Ex. C to be taken by the Crime Scene Unit. They also marked on the roadway a number of features including bloodstains and debris which was apparently from the first defendant's vehicle. Having regard to the whole of the evidence I am satisfied that the left of the two arrows shown in Ex. C1 is the most accurate determination of the point of impact.

22    On the whole of the evidence I am satisfied that the plaintiff together with her father and sister went through the gap of the southern or eastern most passage and not through the north or western one as suggested by senior counsel for the first defendant. This brought them out south east of the tree opposite the left arrow marked on Ex. C1. My reasons for this conclusion include,

(a) Mr Ryan's evidence, including the photographs marked by him;

(b) The left arrow marked on the roadway for which no-one could suggest any explanation other than as the point of impact as indicated to police on that day;

(c) They were more likely to use the "well trodden track" than go through a heavy wooded area, where they would have to have gone single file instead of abreast (T 178); and

(d) The perspective I formed at the time of the view, having regard to the then location of the front door of the hardware store.

23    When one looks at Ex. C7, it can be seen that immediately south of that little shrub shown in the picture, which I am satisfied is where the plaintiff, her father and sister came across the nature strip, 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 which corresponds to the "well trodden track", see also Exs. C8 and C9 and the police in Ex. C11 are at the extremity of the "well trodden track".

24    I am 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. When he became concerned about traffic in the area of the parking bay he took his foot off the accelerator, although I am not satisfied his speed was reduced significantly, and he directed his attention in that direction instead of keeping a proper look-out in front of him on both sides.

25    He also moved close to the left of the carriageway, thereby reducing his visibility of persons who might be on the nature strip. Then when he perceived the danger from the parking bay to have passed he started to again apply the accelerator, but without first checking to the left in front of him. I am satisfied that if he had 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 in the light of the road conditions to which I have referred. In these respects the first defendant was negligent and his negligence was a cause of the plaintiff's injuries.

26    I turn now to the plaintiff's case against the second and third defendants. As already observed, the vegetation on the nature strip was wooded in varying degrees by a number of shrubs and trees. These in places extended up to the kerb of the service road, in places overhanging it and in other places actually extending into the gutter. Such shrubs are depicted in a number of photographs, particularly Ex. C taken on the day of the accident, and 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.

27    It was also submitted that, having regard to the surrounding features, steps should have been taken to restrict or prevent pedestrians crossing the service road except at the continuation of the pedestrian crossing of the highway where motorists would be more likely to expect them, that the construction of the 90° angle parking bay outside the hardware store in a place where the service road was too narrow for that purpose created a potential hazard which distracted drivers from keeping a proper lookout, and finally, that taking all these considerations into account, signs should have been erected to warn drivers and/or pedestrians of the danger.

28    In relation to these matters a number of witnesses gave evidence, namely Mr Wingrove (consultant transport engineer), Mr Grewcoe (horticulturist / arborist), Mr Winning (traffic engineer), and in addition there were the reports of Mr Richmond (highway engineer) (Ex. G). Mr Richmond's were admitted over objection (see my judgment of 31 January 2001) but it later appeared that the third defendant's solicitors had given notice to the first defendant's solicitors that he was required for cross-examination whereupon Mr Garling, senior counsel for the first defendant, said he would not be submitting that Mr Richmond's opinions were not challenged by the third defendant.

29    Ultimately this appears to me to make no significant difference as there was little, if any, disagreement between the various experts on what constituted acceptable road construction and maintenance practice in relation to the matters relevant to the case.

30    Some issue was raised as to whether it was foreseeable that pedestrians would cross the nature strip and the service road in the area that the plaintiff and her father did on the day in question when there was the controlled pedestrian crossing of the highway located some 40-50 metres south of Coughlan Road with the paved area of the nature strip on its eastern extremity and the high post and rail fences at that point which had the purpose and capacity of "storing" pedestrians there, so that they would tend to cross the service road at that point.

31    However, bearing in mind that the Blaxland High School was located on the northern side of Coughlan Road, it could be anticipated that at times students and others would cross the highway form the northern kerb of Coughlan Road, through the gap in the arc weld fence on the highway median strip at the intersection across the eastern side of the highway, through the low post and rail fence at the western edge of the nature strip, across such strip and then across the service road, particularly if heading to homes on the eastern side of the service road. See also Mr Wingrove's report para 19.

32    In addition it could be foreseen that the hardware store would generate customers and not all would arrive by car and park in the 90° angle parking bay. There was no restriction on parking on either side of the highway in the breakdown lane (as the Ryan family did on the western side) and persons parking in that area would be unlikely to walk to the controlled crossing. Indeed in the case of those who might park their cars on the eastern side of the highway they would have no reason at all to walk down to the crossing and the gaps in the low post and rail fence invited them to walk across the nature strip to the service road. Such forseeability is confirmed by the existence of what was described as the "well trodden track".

33    Having regard to the problem of headlight glare from oncoming traffic, particularly on the left hand side as between Sydney bound traffic on the highway and north bound traffic on the service road, it was appropriate and necessary to provide some form of screening, and vegetation is a generally acceptable form of such screening. However, the Guidelines (Exs. 17A and 17B) as well as the expert opinions of Messrs Richmond and Winning make it clear that such vegetation screening should not extend up to, or over the kerb as this did, but should be set back so that pedestrians intending to cross the road are clearly visible to drivers of approaching vehicles and are not obscured by the foliage, and likewise approaching vehicles are visible to the pedestrians. 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.

34    The plans prepared by the Department of Main Roads (Ex. N1) in fact showed the foliage overhanging the carriageway of the service road. Whilst these may have been intended to represent trees overhanging at a considerable height above ground, there is no border back from the kerb so as to provide a proper sight line of and for pedestrians. Mr Winning, formerly employed by the Roads and Traffic Authority, described such plans as "inadequate" and potentially dangerous. He said that no traffic authority would plant vegetation intending it to grow over the carriageway or to reduce the sight distances on the carriageway (T 482). He said that if he had been presented with such a plan he would have rejected it; and he agreed that when vegetation was planted on a nature strip it should be planted so as to ensure that either at maturity or by means of pruning there should be left a clear space between the vegetation and the kerb (T 483).

35    Although the Guidelines Exs. 17A and 17B (1987 and 1982) specify 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.

36    Moreover, as Mr Grewcoe the horticulturist explained, the types of shrubs used were in many cases such as would grow and thicken up, and consequently a proper program of maintenance and pruning was required. There was apparently no such program and they were not pruned until after, and almost certainly as a result of, the plaintiff's accident.

37    It was submitted that there should have been some form of barrier type fencing to prevent pedestrians crossing the nature strip except from the holding bay at the eastern extremity of the controlled crossing. I do not consider this would have been necessary if the vegetation necessary to prevent the headlight dazzle had been planted an appropriate distance back from the kerb and been properly maintained; but as an alternative a solid screen type fence 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 similar to that on the highway median strip could have been erected along the nature strip and vegetation planted as was in fact done to limit the headlight glare.

38    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, 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. Accordingly I am satisfied that the public authorities responsible for the design and construction of the nature strip and the planting and maintenance of the vegetation on it were guilty of negligence which contributed to the plaintiff's accident.

39    The other major matter of contention in relation to the road design was the provision of the parking bay providing parking for vehicles at 90° outside the hardware store on the eastern side of the service road. Australian Standard 1742, Part 2-1978 (Ex. P) provided that a relevant consideration for the provision of 90° angle parking was the width of the carriageway (Clause 14.3.3 and Fig. 14.6) and the 1993 standard was in similar terms.

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° 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 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.

41    Having regard to the likelihood of pedestrians crossing the service road from the nature strip in the vicinity of the hardware store, the density and closeness to the kerb of the foliage on the nature strip and the location of the 90° parking bay on the narrow service road, I am also satisfied that there was a need of warning signs or a notice limiting the speed of vehicles (or directing them to proceed slowly) etc.

42    Although a highway authority is not liable for mere failure to repair or maintain the highway (non-feasance), it is liable if it does work and such work is done negligently so as to create a danger which did not previously exist and which results in injury to a plaintiff: Buckle v Bayswater Road Board (1936) 57 CLR 259, Gorringe v Transport Commission (Tas.) (1950) 80 CLR 357 at 363, Webb v State of South Australia (1982) 56 ALJR 912, Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232, Lake Macquarie City Council v Bottomley [1999] NSWCA 28. The construction of the service road, including the 90° angle parking bay road, and the planting of trees and shrubs on the nature strip were all instances of misfeasance and consequently the public bodies who carried out such work are liable for any consequences arising from any negligence in the carrying out of such work.

43    Moreover the immunity for non-feasance does not apply to the non repair of artificial structures, including trees, planted near the highway but not forming part of the road surface itself which because of lack of maintenance become dangerous with the passage of time: Donaldson v Municipal Council of Sydney (1924) 24 SR 408, Hughes v Hunters Hill Municipal Council at 236; such failure constitutes misfeasance, so the second and third defendants cannot claim immunity in respect of the failure to prune and maintain the shrubs and trees on the nature strip.

44    It was submitted that the non-feasance immunity only extends to a public authority acting as highway authority exercising its powers as such to build, maintain and repair roads, and does not extend to a public authority acting as traffic authority: Turner v Ku-ring-gai Municipal Council (1990) 12 MVR 321, 72 LGRA 60 but that exception seems to apply only in respect of mandatory speed signs and not in the case of advisory speed signs (which is what is in issue here) where the ordinary misfeasance/non-feasance rule applies: Gloucester Shire Council v McLenaghan [2000] NSWCA 208 at [72].

45    It was submitted on behalf of the second defendant that because councils have limited funds it was necessary to consider the resources it had to determine whether it was reasonable to spend money on this service road and nature strip, but as the Court of Appeal pointed out in Hughes v Hunters Hill Municipal Council at 236-7, although the limited resources of public authorities may have been the rationale for the immunity for non-feasance, the authorities have clearly established liability for misfeasance without regard to an examination of resources - contra Powell JA, dissenting, in Gloucester Shire Council v McLenaghan.

46    The second and third defendants also sought to avoid liability on the ground that they owed no duty to the plaintiff because of their failure to exercise the statutory powers vested in them by the Roads Act 1993, ss 145 and 146, or as occupiers of the roadway; and reference was made to cases such as Perre v Apand Pty Ltd (1999) 198 CLR 180, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, Sutherland Shire Council v Heyman (1985) 157 CLR 424, Pyrenees Shire Council v Day (1998) 192 CLR 330, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Stovin v Wise [1996] AC 923. But none of these cases concerned the liability of highway authorities for the condition of the highway, which is different to, and is not based on, the duties of occupiers to persons entering on land, and the extent of their duty in relation to the exercise of their statutory powers as highway authorities is defined by the misfeasance/non-feasance rule: Buckle v Baywater Road Board per Dixon J at 280-4. In Stovin v Wise the bank which constituted the danger by obscuring the view was on adjoining private land, and not on the highway itself.

47    For these reasons I am satisfied that each of the second and third defendants are liable to the plaintiff as they were both concerned in bringing about the circumstances which, together with the negligence of the first defendant, led to the plaintiff's injuries.

48    The plaintiff was 9½ years old at the time of the accident and should have been aware of the need to be careful when, and to look both ways before, crossing a road, and indeed she had been taught to do so. A child is guilty of contributory negligence if she fails to take such reasonable care for her own safety as is appropriate for an ordinary child of that age and understanding: McHale v Watson (1964) 111 CLR 384, affirmed 115 CLR 199, Figueroa v NSW Insurance Ministerial Corporation (unreported - Simpson J - 18 March 1998).

49    The plaintiff did not give evidence, but on the whole of the evidence I am satisfied she left the grip of her father's hand when he released the pressure and stepped out onto the service road (I am not satisfied she was running) without looking. On the other hand, she probably did not realise that because of the trees and shrubs, the density of the foliage and the narrowness of the service road there was a need to pay even more attention to looking than in the ordinary case. In all the circumstances I assess her responsibility for her injuries at 10%.

50    As between the defendants I consider that the first defendant as the driver of a motor vehicle who failed to keep a proper look-out when he should have averted to the possibility of a pedestrian emerging from the shrubs on the nature strip and who was travelling at a speed which was excessive in all the circumstances must bear the largest share of responsibility for the accident, but both the second and third defendants must bear some share of the blame.

51    The provision of the service road and nature strip was part of the widening and upgrading of the Great Western Highway and the design of the service road and the nature strip, including the tree planting plan, was the work of the third defendant or its predecessor, the Department of Main Roads. On the other hand, the design of the parking bay which contributed to the problem was the work of the second defendant.

52    In addition, by agreement between the second and third defendants the responsibility for maintaining the nature strip designed and planted by the third defendant as part of the widening and reconstruction of the highway was after a six month period entrusted to the second defendant which carried out some maintenance and pruning (Ex. M) but failed to do it properly or adequately. On the other hand, having created the danger against which the nature strip was directed (headlight glare) the third defendant was not able to avoid liability therefor by delegating its responsibility for the maintenance of the nature strip: Roads and Traffic Authority v Scroop (1998) 28 MVR 233.

53    In these circumstances I consider that responsibility for the plaintiff's injuries should be apportioned between the defendants as 50% to the first defendant, and 25% to each of the second and third defendants.

54    Subject to the plaintiff recovering a judgment and my approval, the parties have agreed on the assessment of damages namely $3,250,000 for damages under the MA Act and $4,125,000 for damages at common law. I have read the material relating to the plaintiff's injuries and disabilities (Ex. X) and am satisfied that such amounts are reasonable.

55    On behalf of the second and third defendants it has been submitted that damages against them should be assessed in accordance with the MA Act and not as at common law, and they rely on s 69(1) which is as follows:

"This Part applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle."

But the award of damages against the second or third defendants does not relate to an injury to a person caused by the owner or driver of a motor vehicle, but to an injury caused by their negligent acts and omissions in the course of carrying out road design, construction and maintenance: Rouse v Shepherd (1994) 35 NSWLR 250 at 253, Bitupave Ltd v Bollington (1998) 28 MVR 223 at 229. The liability of the first defendant does, however, arise out of his fault as driver of a motor vehicle and accordingly Part 6 of that Act applies to the assessment of damages against him. There will therefore be judgment for the plaintiff against the respective defendants for these amounts less 10%; namely $2,925,000 against the first defendant and $3,712,500 against each of the second and third defendants.

56    There are also cross-claims by each of the defendants against each other defendant and some dispute how these should be resolved, having regard to the different rates of damages, the first defendant submitting that he can only be liable to the other defendants for the relevant proportion of the MA Act assessment, whilst the others claim that they can recover from the first defendant the relevant proportion of common law damages; and each party points to the anomalies which they claim will flow if their submissions are rejected.

57    In Lanza v Codemo [2001] NSWSC 72, Wood CJ at CL considered a similar question where damages were assessed against two defendants at common law and against another under the MA Act. However, the defendant whose damages were assessed under the MA Act was also the employer of the plaintiff and so s 151Z of the Workers Compensation Act 1987 ("WC Act") applied. After referring to Unsworth v Commissioner of Railways (1958) 101 CLR 73 and Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199, his Honour expressed the view that any apportionment calculation should be based on the liability of the common law (uncapped) defendants with the MA Act defendant's maximum exposure being limited to its capped liability under that Act, but his Honour reserved the making of final orders in respect of the cross-claims to allow further submissions in that regard.

58 In the present case none of the defendants was the employer of the plaintiff and so s 151Z of the WC Act has no application. Moreover the agreed assessments of damages have both been reduced by 10% on account of the plaintiff's contributory negligence, so that, as I have already held the amounts for which the defendants are liable to the plaintiff are $2,925,000 and $3,712,500 respectively.

59    In Unsworth v Commissioner of Railways there were two defendants both of whom where held liable to the plaintiff whose damages were assessed at 5,615 pounds, and their respective responsibility was determined at 15% and 85%. The defendant whose responsibility was assessed at 85% was the Commissioner for Railways who had the benefit of the Railways Acts 1914 to 1955 (Q), s 121(1) which capped his liability for damages in such cases at 2000 pounds. The trial judge had entered judgment for the plaintiff against Unsworth (the uncapped defendant) for the full amount of 5,615 pounds and against the Railway Commissioner (the capped defendant) for 1,700 pounds (being 2000 pounds less 15% on account of the contributory negligence of Unsworth, who at the relevant time was driving as agent for the deceased husband of the plaintiff). On the apportionment claim by Unsworth against the Commissioner, he entered judgment for 1,700 pounds. Unsworth appealed claiming that he was entitled to receive by way of contribution from the Commissioner not 85% of 2,000 pounds (1,700 pounds) but 85% of 5,615 pounds (4,772 pounds, 15 shillings). His claim failed, although on the plaintiff being joined as a party to the appeal it was held he was entitled to contribution from the Commissioner to the full extent of the 2,000 pounds.

60    In dealing with s 5 of the Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 (Q), the equivalent of our Law Reform (Miscellaneous Provisions) Act 1946, Fullager J said at 87:

"But it is, in my opinion, clearly implicit in s. 5 (c) that the amount of the liability to pay contribution cannot be greater than the amount of the primary liability. Contribution can only be recovered from one who "is, or would if sued have been, liable" to pay damages to the person injured. A person cannot be said to be so liable except to the extent to which damages can be recovered from him at law. In any case, I do not think that it could be lawfully held to be "just and equitable" within the meaning of s. 6 of The Law Reform Act that a person should be ordered to pay by way of contribution to another tortfeasor a larger amount than he could be compelled to pay to the person injured."

and Taylor J said at 93:
"It is true also that the language of s. 5 (c) has been chosen without regard to the difficulty which arises in the present case. But the right to contribution is dependent upon the fact of liability and it seems reasonably clear that if the plaintiff had recovered judgment against the commissioner for the sum of 2,000 pounds and the commissioner had thereupon paid that sum to her the appellant could not, thereafter, have succeeded in his claim to recover a contribution. In such circumstances it would then have been impossible for the appellant to contend that the commissioner was a person "who is, or would if sued have been, liable in respect of the same damage". If this is so it would be anomalous to a degree to hold that he may now be required to contribute a sum in excess of that amount. This solution of the problem may be regarded as somewhat unsatisfactory but, if it is, it is because the language of the sub-section is obscure and incapable of ready application to the circumstances of cases such as the present. But, on the whole, the provision assumes the existence of a liability in the party from whom a contribution is sought and may fairly be taken to intend that, within the limits of that liability only, he may be called upon to make a contribution to the first tortfeasor."

61    In my opinion Unsworth is authority for the proposition that the tortfeasor(s) whose liability is uncapped cannot recover contribution from the tortfeasor whose liability is capped in excess of such cap and, this was also the view of Wood CJ at CL in Lanza v Codemo. Commonwealth of Australia v Flaviano dealt with a somewhat different issue.

62    In Unsworth the majority held that the effective cap on the liability of the Commissioner for contribution was 2,000 pounds and not that amount reduced by 15% for contributory negligence (1,700 pounds), but in Unsworth the cap was expressed in terms of a fixed sum whereas here the cap is determined by a process of assessment. That process of assessment includes the whole of Part 6 of the MA Act including s 74(3) which requires the plaintiff's damages to be reduced where the Court finds the plaintiff to have been guilty of contributory negligence. I am therefore satisfied that the effective cap on the liability of the first defendant is the amount of damages after the reduction for the plaintiff's contributory negligence, namely $2,925,000. This question did not arise in Lanza v Codemo because there was no finding of contributory negligence.

63    This result, in my view is consistent with the objects of the MA Act which include keeping premiums to an acceptable level by limiting the amount of damages payable under the compulsory third party policy under that Act: see s 2A, O'Sullivan v Thai Airways International Ltd (1998) 28 MVR 469 at 474 and Rouse v Shepherd (1994) 35 NSWLR 250 at 253. Moreover the first defendant is insured under the compulsory third party policy set out in Schedule 1 of the Act - see also ss 9, 17 (now replaced by s 10, Motor Accidents Compensation Act 1999 to the same effect); and that clearly contemplates liability assessed in accordance with Part 6 of the MA Act; and if he were ordered to pay contribution assessed on a common law basis in excess of his liability under the MA Act, he would not be insured in respect of such excess.

64    As I understand the first defendant's submissions, he submits that he should only be ordered to make contribution to the extent of the relevant proportion of the MA Act damages, and not the relevant proportion of common law damages capped by the MA Act damages. Although the matter is not free from doubt, I feel that in this regard I should adopt the position indicated by Wood CJ at CL in Lanza v Codemo and allow the relevant proportion of common law damages capped by the amount of the first defendant's liability under the MA Act.

65    Accordingly, on the Third Cross-Claim (Pledge v Blue Mountains City Council) there will be an order for contribution of 25% of $3,712,500, namely $928,125, and a similar order on the Fourth Cross-Claim (Pledge v Roads and Traffic Authority).

66    On the Sixth Cross-Claim (Roads and Traffic Authority v Pledge) there will be an order for contribution for 50% of $3,712,500 namely $1,856,250 (the cap on the first defendant's liability being in the particular case irrelevant), and on the Seventh Cross-Claim (Roads and Traffic Authority v Blue Mountains City Council) there will be an order for contribution for 25% of $3,712,500 namely $928,125.

67    On the Eighth Cross-Claim (Blue Mountains City Council v Pledge) there will be an order for contribution for $1,856,250 and on the Ninth Cross-Claim (Blue Mountains City Council v Roads and Traffic Authority) an order for contribution for $928,125.

68    I will stand the matter over so that the parties can check my calculations and make submissions as to any special costs orders they may seek, and after that formally approve the assessments, direct the entry of judgments and make orders for investment of the damages.

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Last Modified: 04/27/2001