Smith v Edward

[2006] NFSC 4

SUPREME COURT OF NORFOLK ISLAND

Smith v Edward [2006] NFSC 4

NEGLIGENCE – Motor accident – Plaintiffs were run down by a motor vehicle driven by first defendant – Whether accident was caused by the negligent driving of first defendant – Whether negligence of plaintiffs contributed to the accident – Whether Administration of Norfolk Island, the second defendant, owed a duty of care to plaintiffs to provide a constructed footpath and/or street lighting – Whether Administration breached any such duty – Liability established against first defendant, with no contributory negligence, but not against second defendant.

PATRICK THOMAS SMITH v JOHN GEORGE EDWARD and ADMINISTRATION OF NORFOLK ISLAND
SC7 of 2004

LORRAINE RUTH SMITH v JOHN GEORGE EDWARD and ADMINISTRATION OF NORFOLK ISLAND
SC8 of 2004

ANDREA LEANNE SMITH v JOHN GEORGE EDWARD and ADMINISTRATION OF NORFOLK ISLAND
SC9 of 2004

WILCOX J
22 MARCH 2006
SYDNEY (HEARD IN NORFOLK ISLAND)

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC7 of 2004

BETWEEN:

PATRICK THOMAS SMITH
PLAINTIFF

AND:

JOHN GEORGE EDWARD
FIRST DEFENDANT

ADMINISTRATION OF NORFOLK ISLAND
SECOND DEFENDANT

JUDGE:

WILCOX J

DATE OF ORDER:

22 MARCH 2006

WHERE MADE:

SYDNEY (HEARD IN NORFOLK ISLAND)

THE COURT ORDERS THAT:

1.Within 21 days, the parties file draft orders giving effect to the Reasons for Judgment published today and the agreement between them concerning the quantum of the plaintiff’s damages.

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC8 of 2004

BETWEEN:

LORRAINE RUTH SMITH
PLAINTIFF

AND:

JOHN GEORGE EDWARD
FIRST DEFENDANT

ADMINISTRATION OF NORFOLK ISLAND
SECOND DEFENDANT

JUDGE:	WILCOX J
DATE OF ORDER:	22 MARCH 2006
WHERE MADE:	SYDNEY (HEARD IN NORFOLK ISLAND)

THE COURT ORDERS THAT:

1.Within 21 days, the parties file draft orders giving effect to the Reasons for Judgment published today and the agreement between them concerning the quantum of the plaintiff’s damages.

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC9 of 2004

BETWEEN:

ANDREA LEANNE SMITH
PLAINTIFF

AND:

JOHN GEORGE EDWARD
FIRST DEFENDANT

ADMINISTRATION OF NORFOLK ISLAND
SECOND DEFENDANT

JUDGE:	WILCOX J
DATE:	22 MARCH 2006
PLACE:	SYDNEY (HEARD IN NORFOLK ISLAND)

THE COURT ORDERS THAT:

1.Within 21 days, the parties file draft orders giving effect to the Reasons for Judgment published today and the agreement between them concerning the quantum of the plaintiff’s damages.

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC7 of 2004

BETWEEN:

PATRICK THOMAS SMITH
PLAINTIFF

AND:

JOHN GEORGE EDWARD
FIRST DEFENDANT

ADMINISTRATION OF NORFOLK ISLAND
SECOND DEFENDANT

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC8 of 2004

BETWEEN:

LORRAINE RUTH SMITH
PLAINTIFF

AND:

JOHN GEORGE EDWARD
FIRST DEFENDANT

ADMINISTRATION OF NORFOLK ISLAND
SECOND DEFENDANT

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC9 of 2004

BETWEEN:

ANDREA LEANNE SMITH
PLAINTIFF

AND:

JOHN GEORGE EDWARD
FIRST DEFENDANT

ADMINISTRATION OF NORFOLK ISLAND
SECOND DEFENDANT

JUDGE:	WILCOX J
DATE:	22 MARCH 2006
PLACE:	SYDNEY (HEARD IN NORFOLK ISLAND)

REASONS FOR JUDGMENT

WILCOX J:

1. These three actions arise out of an accident that occurred on 29 June 2003.  On that evening, the plaintiffs (Patrick Thomas Smith, his wife Lorraine Ruth Smith and their daughter, Andrea Leanne Smith) were walking in Taylors Road, Norfolk Island when they were run down by a motor car driven by the first defendant, John George Edward.  Each plaintiff was injured.  Each of them sued the same three defendants, the basis of their claims being identical in each case. 

2. The case against Mr Edward was that the accident was caused by his negligent driving.  The second defendant, the Administration of Norfolk Island, was sued on the basis that it controlled roads on Norfolk Island, including footpaths and grass verges contained within the road reserves; in particular that part of Taylors Road on which the plaintiffs were walking when the accident occurred.  The plaintiffs said the Administration negligently exercised its power of control.  The claim against the third defendant, Norfolk Island Leagues Club Limited, maintained that it, by its staff, was negligent, first in serving alcohol to the first defendant to the point that he became intoxicated and, second, in failing to take reasonable steps to prevent him then driving his vehicle.  Before trial, an agreement was reached between the plaintiffs and the third defendant for settlement of all claims against the third defendant.  The plaintiffs then discontinued their actions against this defendant.

3. I was informed by the legal representatives of the remaining parties that they had agreed as to the quantum of damages that should be awarded to each plaintiff, if he or she is successful against either or both of the remaining defendants.  The amount presumably takes into account whatever money is payable to each plaintiff pursuant to the agreement between that plaintiff and the third defendant.  However, that is not a matter about which I need be concerned.  I will adopt the figures the parties have agreed, when I am informed of them.

   The facts

4. The remaining parties are in substantial agreement about the circumstances of the accident.  Before recounting those circumstances, I mention that Mr Smith was the only plaintiff who gave evidence.  I was told that, because of the injuries she sustained in the accident, Lorraine Smith (‘Mrs Smith’) is not fit enough to travel from her home on Bribie Island, Queensland to Norfolk Island.  Ms Andrea Smith is ordinarily able to travel but was ill at the time of the trial.  The solicitor for the first defendant, Mr W Richards, tendered a statement about the accident that she made to the police on the day after it occurred.

5. The plaintiffs arrived on Norfolk Island on Saturday, 28 June 2003.  This was their first visit to the Island.  They intended to stay for one week.  They were accommodated at Hibiscus Aloha, a lodge situated at Burnt Pine.  Burnt Pine contains the main business area on the Island, most of which fronts Taylors Road.  Partly because of this, and partly because it is the major traffic route to and from the airport, Taylors Road is one of the busiest roads on the Island.

6. On the day after their arrival, Sunday 29 June 2003, the plaintiffs took a half-day Island tour.  They booked a table for dinner that evening at Sea World Restaurant, which is located in Ferny Lane, close to its intersection with the western end of Taylors Road.  As the restaurant is situate only a few hundred metres from Hibiscus Aloha, the plaintiffs decided to walk to and from the restaurant.

7. It was still daylight when the plaintiffs departed for the restaurant.  However, realising it would be dark when they returned, they took torches. 

8. There is a minor issue as to how many torches the plaintiffs carried.  Mr Edward said he saw only one torch, after the accident.  Mr Smith said all three plaintiffs carried a torch.

9. I do not think it matters how many torches were carried, but I prefer the evidence of Mr Smith on this point.  He gave a detailed description of the torches themselves and the manner in which they were carried.  Under extensive cross-examination, he was very sure about those matters and I formed the view that he was a person who would not be likely knowingly to mislead the Court.  By contrast, the evidence of Mr Edward suffers from two significant disadvantages.  First, Mr Edwards did not see any of the plaintiffs before the accident; the first thing he noticed was a bump.  So he missed even the one torch that he now concedes was carried.  The fact that he did not see any of the plaintiffs before the accident can probably be attributed to his state of inebriation.  That is the second disadvantage.  It is agreed between the plaintiffs and Mr Edward that, at the time of the accident, Mr Edward had a blood alcohol reading of 0.276g/100ml.  This is some 5.5 times the permissible blood alcohol limit for drivers in most Australian States.

10. In order to reach Sea World Restaurant from Hibiscus Aloha, it was not necessary for the plaintiffs to cross Taylors Road.  Hibiscus Aloha is on the north side of Taylors Road.  It was possible for the plaintiffs to walk along this side of Taylors Road, crossing the intersection with Grassy Road, then to proceed around the bend in Ferny Lane, crossing the airport road (Douglas Drive) and on to reach Sea World.

11. This was the route taken by the plaintiffs.  During the first part of their journey, they were able to walk along a concrete footpath, built by the Administration as part of a project described in evidence as Stage 1 of the Burnt Pine Strategic Plan.  This Stage involved road carriageway improvements, including the construction of kerbing and guttering, the provision of marked car parking spaces and concrete footpaths, and beautification works (garden beds, shrub and tree planting).  The works embraced both sides of the more heavily developed portion of Taylors Road.

12. As the plaintiffs proceeded in a westerly direction towards the restaurant, they reached the end of the concrete footpath.  Beyond that point, there was a grassy bank, perhaps eight to ten metres wide.  The bank was then in the same condition as at the date of trial.  At its closest point to the northern boundary of the road reserve, the bank is fairly flat.  However, three or four metres from that boundary, it commences to fall towards the bitumen carriageway.  At this point, Taylors Road has no concrete kerbing and guttering, merely a gravel strip, perhaps 20-30cm wide, between the bitumen and the toe of the grassy bank.

13. Mr Smith gave evidence that, after the ‘sealed’ (concrete) footpath finished, he and his wife and daughter walked along the flat top of the grassy bank.  He said the grass was about six inches long.  They saw ‘quite a few cow droppings’ that they were careful to avoid.

14. The party reached Sea World and had their meal.  When they emerged from the restaurant at about 8pm, Mr Smith saw the grass was damp.  He inferred there had been rain while they were dining.  The night was dark.  So all three plaintiffs turned on their torches.  They set off back along the same route as they had come.  After crossing Grassy Road, they considered going over to the southern side of Taylors Road, in order to avoid the cow pats.  However, there was a stream of cars coming from the airport, so they continued along the northern side of Taylors Road.

15. The party traversed a concrete driveway.  They again considered going over to the southern side of Taylors Road but cars were still coming, so they continued along the northern side.

16. An electricity box stands on the grassy bank about five metres in from the gravel edge of the road.  Before the plaintiffs reached that box, they moved down the bank, closer to the road.  Mr Smith said in evidence: ‘We didn’t continue up on the top of the path, that was because of the cow patches’. 

17. There is an issue between the plaintiffs and Mr Edward as to whether the plaintiffs moved onto the bitumen carriageway.   In the statement he made to the police, Mr Smith said:

    ‘We were walking on the grass but it had been raining and was quite slippery.  We moved down to the edge of the road.

    We were walking in single file on the grass at the edge of the road slightly off to the left.’

18. In her police statement, Ms Andrea Smith said:

    ‘We were walking along the grass on the left hand side.  As it had been raining, the grass was slippery and we moved down the edge of the road where it was level.

    We were walking in single file, I was in front, Dad was in the middle, and Mum jaws [sic] at the back.  We were certainly off the edge of the road, just onto the grass shoulder.’

19. As I have indicated, Mr Edward said he did not see any of the plaintiffs before his vehicle struck them.  He said that, after the accident, he stopped his vehicle and came back.  Mr Smith was sitting on the bank.  Mrs Smith was ‘laying on the tar seal near the grass’.  In response to a suggestion from Mr K Wilson SC, counsel for the plaintiffs, that he did not know where the plaintiffs were when he struck them, Mr Edward said:

    ‘I only know, of course, they were there, right where it is, and I wouldn’t have pushed them far.’

    Mr Edward said he was travelling at about 30-40km per hour.  There is no other evidence as to his speed.

20. It is an agreed fact between the plaintiffs and the Administration that the ‘point of impact was on the grass area approximately 1 to 2 metres from the edge of the bitumen road surface’.  I must apply that agreement, to the extent of its relevance, in considering the plaintiff’s case against the Administration.  However, Mr Edward is not a party to that agreement.  For the purpose of my considering the case against him, he is entitled to my own determination of the point of impact.

21. On the evidence, I cannot accept that, at the moment of impact, the plaintiffs were walking one to two metres from the edge of the bitumen surface.  I inspected the bank, in company with the parties’ representatives, before commencement of the trial.  The evidence includes several photographs of the bank.  It is agreed that the point of impact was slightly west of the electricity box.  At that point, at a distance of one to two metres from the edge of the bitumen, the bank is quite steep.  Particularly after rain, when the grass would have been slippery, this would have been an uncomfortable place to walk.

22. During the course of Mr Smith’s evidence, I raised this difficulty with him.  Mr Smith had pointed out, on a photograph, his version of the point of impact.  I had this exchange with him:

    ‘Q.      That is a very steep section.  I am putting this to you because I am puzzled about it and it seemed only fair to you to raise my problem so you can deal with it while you are in the witness box?
    A.       Right.

    Q.       If that is so, the car must have come off the bitumen and ploughed right up the bank?
    A.       Yes.

    Q.       Is that what in fact happened?
    A.       Yes.’

    There is no evidence of damage to the bank or the finding of tyre marks on it.

23. The two statements given to the police suggest the plaintiffs were close to the bitumen pavement at the moment of impact, but not actually walking on it.  It will be recalled that Mr Smith said the plaintiffs ‘were walking in single file on the grass at the edge of the road slightly off to the left’.  Ms Smith said they were ‘just onto the grass shoulder’.  I accept these accounts of the matter.  It is unlikely that the plaintiffs were walking as far as one to two metres off the carriageway, or that Mr Edward’s car left the bitumen and ploughed up the bank.  At the same time, I see no reason to believe the plaintiffs were walking on the bitumen itself.  Mr Edwards did not give evidence to that effect; he did not see the plaintiffs before impact.  And such a conclusion would conflict with the statements made to the police by both Mr and Ms Smith.  Moreover, it would have been foolhardy for the plaintiffs to walk on the bitumen on a dark night with their backs to oncoming traffic.

24. Mr Edward gave evidence that, immediately before the accident, he saw an oncoming vehicle.  If that was so, it would have been natural for him to move to the extreme left hand side of the bitumen, with the nearside of his vehicle perhaps protruding over the gravel strip; or even onto the gravel strip, with the vehicle perhaps protruding over the edge of the grassy bank.  I think the plaintiffs were walking in that area, possibly partly on the gravel strip, possibly wholly along the first few centimetres of grass.

    The case against the first defendant

25. Although the first defendant did not formally concede his negligence, Mr Richards said he was unable to put any submission against a finding that his client had been negligent.  I think this reaction was correct.  As is illustrated by the recent High Court decision in Manley v Alexander [2005] HCA 79, only in the rarest of circumstances will a driver who runs down a pedestrian succeed, in a civil action, in escaping a finding of negligence.

26. In the present case, I am satisfied the plaintiffs were all carrying torches.  Even allowing for the effect on Mr Edward’s vision of the lights of an oncoming vehicle, he ought to have seen the plaintiffs at least 50 metres before impact.  The road was completely straight for at least that far.  The plaintiffs were not dressed in dark clothing.  So far as the evidence reveals, Mr Edward was travelling at a modest speed.  Had he then seen the plaintiffs, and absorbed the implications of their presence, Mr Edward could easily have stopped his car before he reached them.  The accident would not have occurred.

27. No doubt the reason why Mr Edward did not see the plaintiffs, or – if he did – his brain did not absorb the implications of their presence, was that he was heavily affected by alcohol.  Mr Edward gave evidence that he had gone to the Norfolk Island Leagues Club that afternoon to watch the Sydney Rugby League football on television, ‘and having a couple of beers as well’.  He said he was at the Leagues Club ‘two hours, two and a half’.  Plainly, he understated both the number of beers and the number of hours.  Nobody could get a blood alcohol reading of 0.276 g/100 ml on a ‘couple of beers’.  Sydney Rugby League games generally start about 3pm.  The accident occurred shortly after 8pm.  The better view is that Mr Edward was driving home after a heavy drinking session that lasted at least five hours.  There must be a finding of negligence against Mr Edward.

28. The real issue in relation to Mr Edward’s liability is his claim that each plaintiff negligently contributed to his or her damage.  The claim rests on the contention that the plaintiffs were walking on the bitumen at the time of impact.  I have already indicated my rejection of that contention.  Accordingly, I reject the claim of contributory negligence.

29. There should be judgment in favour of each plaintiff against Mr Edward in the amount of the agreed damages of that plaintiff.

    The case against the second defendant

30. In para 1(b) of their Amended Statements of Claim, each of the plaintiffs pleaded that:

    ‘the second defendant was and remains:

    (i)       a body corporate having perpetual succession;

    (ii)responsible for the construction, maintenance and upkeep of public land on Norfolk Island;

    (iii)in control of the roads and public footpaths on Norfolk Island and in particular, Taylors Road between the Norfolk Island Leagues Club and premises known as “Land and Sea” and “Hibiscus Aloha”.’

31. In paras 6 and 7 of their Amended Statements of Claim, each of the plaintiffs said:

    ‘6.By virtue of the matters set out in paragraphs 1(b), 2(b) and 3 herein, the second defendant owed to the plaintiff, as a pedestrian using infrastructure controlled by it, a common law duty to take reasonable care to provide him with a safe path to walk along when walking along public land near to and in the direction of Taylors Road and within 330 m of the club, and a duty to take reasonable care that the exercise or failure to exercise its powers did not create a foreseeable risk of harm to a class of persons, namely pedestrians, which included the Plaintiff.

    7.Negligently and in breach of that duty the second defendant:

    (a)caused or allowed the conditions set out in paragraph 3 herein;

    (b)failed to have in place a footpath or designated pedestrian walkway a distance away from Taylors Road sufficient to have prevented the plaintiff from being run over by the first defendant;

    (c)failed to install barriers or such other obstructions sufficient to prevent the first defendant’s vehicle from striking the plaintiff when it left Taylors Road;

    (d)permitting the grass verge between Taylors Road and the residential property boundary thereto to be so steep as to cause pedestrians walking there to walk near to the edge of Taylors Road rather than near to the property boundary;

    (e)failing to illuminate the area where the accident occurred sufficiently well to have enabled the first defendant to have seen and able thereby to avoid the plaintiff;

    (f)failed to construct a sealed footpath beside Taylors road which was safe for pedestrians to use, including at night;

    (g)failed, within a reasonable time, to address the risk created by the absence of a sealed footpath and lighting along Taylors Road between the Norfolk Island Leagues Club and premises known as “Land & Sea” and “Hibiscus Aloha”.’

1. The second defendant’s response to para 1(b) of the each plaintiff’s Amended Statement of Claim was in these terms:

   ‘As to paragraph 1 of the Amended Statement of Claim, the Second Defendant:

   (a)admits that it was and is a body politic with perpetual succession pursuant to section 5(2) of the Norfolk Island Act 1979 (Cth);

   (b)denies that it is the donee and/or recipient of any statutory power, duty or obligation to control or manage roads and footpaths on Norfolk Island;

   (c)denies that Taylors Road between Norfolk Island Leagues Club and premises known as “Land & Sea” and “Hibiscus Aloha” is public land on Norfolk Island, but says that it is Crown land;

   (d)denies that it is a body which is, or represents, on Norfolk Island, the Crown in the right of Commonwealth of Australia;

   (e)otherwise does not admit the contents of the paragraph.’

2. In response to paras 6 and 7 the second defendant said:

   ‘5.As to paragraph 6 of the Amended Statement of Claim, the Second Defendant:

   (a)denies that it owed to the Plaintiff a common law duty to take reasonable care to provide a safe path to walk along, in and about the location of the accident;

   (b)denies that it owed a duty to take reasonable care that the exercise or failure to exercise its powers did not create a foreseeable risk of harm to a class of persons, namely pedestrians, including the Plaintiff, in the circumstances pleaded;

   (c)otherwise does not admit the contents of the paragraph.

   6.As to paragraph 7 of the Amended Statement of Claim, the Second Defendant:

   (a)denies that it was in any way negligent in the manner pleaded or at all;

   (b)denies that it was in breach of any duty alleged to be owed to the Plaintiff;

   (c)denies that the absence of a sealed footpath and lighting along Taylors Road at or about the location of the accident created any risk of a kind which required remedy;

   (d)admits that there was no sealed footpath or street lighting on either side of Taylors Road at or about the location of the accident;

   (e)denies that the absence of such sealed footpath and/or artificial street lighting was in any way causally connected to the Plaintiff’s injuries, loss and disabilities; and

   (f)otherwise denies the contents of the paragraph.’

3. Aspects of the second defendant’s defence are curious.  The second defendant denied a number of allegations that had not been made by the plaintiffs.  However, at the trial, it became apparent that the concern of the Administration was to deny it had any obligation, as distinct from an entitlement, to upgrade Taylors Road.  This denial was apparently intended partially to rest on the contention that the owner of the Taylors Road reserve is the Commonwealth of Australia, rather than the Administration.  However, nobody adduced any evidence about ownership.

4. The denial was also intended to rest upon the application of principles enunciated in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512. In that case the High Court, by majority (Gaudron, McHugh, Gummow and Kirby JJ, Gleeson CJ, Hayne and Callinan JJ dissenting), swept away the long-standing, and difficult, distinction between misfeasance and nonfeasance by a road authority. It may be useful to set out a pivotal passage at [102]-[106] of the joint judgment of Gaudron, McHugh and Gummow JJ. Their Honours said:

   ‘Whatever may be the general significance today in tort law of the distinction between misfeasance and non‑feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care.  This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger.  In this regard, the factor of control is of fundamental importance.

   It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury.  Authorities having the control of highways are in a different position.  They have physical control over the object or structure which is the source of the risk of harm.  This places highway authorities in a category apart from other recipients of statutory powers.

   The postulate that, without the "highway rule" and with the principles of negligence, statutory authorities will be subjected to fresh, indeterminate financial hazards which the common law will ignore should not be accepted.  First, as has been pointed out earlier in these reasons, expenditure of public funds on litigation turning upon indeterminate and value‑deficient criteria is encouraged, indeed mandated, by the present state of the law.  Secondly, financial considerations and budgetary imperatives may fall for consideration with other matters when determining what should have been done to discharge a duty of care …

   Evidence respecting funding constraints and competing priorities will be admissible.

   The public resources in question are, as indicated earlier in these reasons, provided in part by government grants; the prospect of irate ratepayers left to shoulder the apprehended increased burden is conjectural.  Further, it is implicit in the submissions for the interveners that highway authorities carry insurance in respect of their liability for misfeasance and other acts or omissions falling outside the "highway rule".  The Attorney-General for Victoria submitted that it should not be assumed that road authorities would be able through insurance to “transfer … the financial burden of increased exposure to claims for compensation if their immunity for non‑feasance is removed”.  Nor should it be assumed that they will be unable to do so.

   Appeals also were made to preserve the “political choice” in matters involving shifts in "resource allocation".  However, citizens, corporations, governments and public authorities generally are obliged to order their affairs so as to meet the requirements of the rule of law in Australian civil society.  Thus, it is no answer to a claim in tort against the Commonwealth under s 75(iii) of the Constitution that its wrongful acts or omissions were the product of a "policy decision" taken by the Executive Government; still less that the action is “non‑justiciable” because a verdict against the Commonwealth will be adverse to that “policy decision”.  Local authorities are in no preferred position.  Yet it is submitted that those bodies which answer the description “highway authority”, distilled from the case law, merit and require a special consideration which only statute may displace.  That submission should be rejected.’  (footnotes omitted)

5. In the present case, Mr P Garling SC, counsel for the second defendant, called evidence concerning the work in Taylors Road that had been carried out by his client, in the years 1997-1998, as Stage 1 of the Burnt Pine Strategic Plan (‘the Burnt Pine project’). Evidence was also given concerning planning for Stage 2.  The envisaged Stage 2 work included a westerly extension of the Stage 1 concrete footpath system in Taylors Road, although on the southern (rather than the northern) side of that roadway.

6. It is apparent from the evidence that the only reason why the Stage 2 work has not been carried out is lack of money.  In carrying out Stage 1, the Administration did not encounter any problem of insufficient control of the roadway, nor was there any suggestion that this might be a problem in respect of Stage 2.  Regardless of the identity of the owner of the land contained within the Taylors Road reserve, and whatever the nature of any existing arrangements between the Administration and the Commonwealth of Australia, it is apparent that the Administration has all the control it needs in order to carry out whatever works are necessary to avert danger to road users.

7. As is made apparent in the passage from Brodie set out at para 35 above, the issue of control is of central importance in determining whether a road authority has a duty of care to road users. In this case, having regard to the evidence to which I have referred, I am of the opinion that the Administration had such a degree of control, in a practical sense, of the relevant portion of Taylors Road as to cast upon it a duty of care to road users, including pedestrians. The critical question is whether the Administration breached that duty.

8. Even if Stage 2 of the Burnt Pine project had been constructed before 29 June 2003, there might remain an issue as to whether the accident would have occurred.  The Stage 2 plans did not propose prolongation of the northern footpath in Taylors Road.  They did propose a concrete footpath, well away from the bitumen strip, on the southern side of Taylors Road.  The footpath was proposed to be constructed from a point approximately opposite the western end of the northern concrete footway to a point in Ferny Lane beyond Sea World.  In order to use this concrete footpath, the plaintiffs would have needed to cross Taylors Road twice on each journey.  Whether they would have chosen to do so rests in the realm of speculation.  As Mr Garling pointed out, the plaintiffs twice considered crossing Taylors Road on their return journey from the restaurant to their accommodation but were deterred by the number of cars coming from the airport.

9. There is a large element of assumption in concluding, as is a necessary step in the plaintiffs’ case, that the allure of a concrete footpath would have been sufficient to cause them to make a different decision about crossing the road.  However, I am content to deal with their case on the basis that it would have been sufficient.  On this basis, it can be reasoned that the accident would not have occurred if Stage 2 of the Burnt Pine project had then been constructed.  On that basis, the plaintiff’s case against the Administration turns on the question whether the Administration breached its duty of care to road users, including pedestrians, by failing to undertake Stage 2, or at least to build the proposed concrete footpath, before 29 June 2003.

10. It is clear that, at all material times, the relevant Administration officials (including Ministers) favoured construction of Stage 2.  The Burnt Pine project seems always to have had widespread public support.  It has been seen as adding to the attractiveness, efficiency and safety of the commercial heart of the Island.  The impediment has always been lack of funds.

11. The evidence does not suggest the Administration lacked the money necessary to fund Stage 2 in an absolute sense; rather that the Minister for Roads, and perhaps also the Legislative Assembly, has always chosen to spend available road works funds in other ways.  In particular, it appears that, in 2000, the Minister made an important choice between funding Stage 2 of the Burnt Pine project and carrying out reconstruction of J E Road.  The Minister had available to him, over the following couple of financial years, sufficient money to fund either of these projects, but not both.  Upon the recommendation of Michael Johnston, Manager of Public Works, the Minister chose to spend the money on J E Road.

12. Mr Johnston has lived on Norfolk Island for about 30 years and has been employed by the Administration, in various public works positions, for about 26 years.  He had supervised construction of Stage 1 of the Burnt Pine project in 1997-1998.  He had supported the implementation of Stage 2.  However, he had thought J E Road should take priority.  In answer to a request by Mr Garling to describe J E Road, he said:

    ‘JE Road is opposite the police station and basically goes up towards Mt Bates, the second big hill on the island.  It also allows traffic to go a circular route around past Prince Phillip Drive coming out by Cascade down near Cascade Pier.  It is one of the busier roads on the island, there as [sic] a children’s crèche halfway up the hill so between the hours of, or the hours of 9 o’clock in the morning and 3 o’clock in the afternoon, you have mothers taking kids up there, and it is also one of the tourist buses, or not one of tourist buses, but tourist buses use this route to get round the Prince Phillip Drive, so it’s quite a high-use road area.’

13. Mr Johnston said J E Road is a ‘very hilly section of road’ and needed ‘major upgrade works’.  He said that, after the Minister’s decision, there were delays in getting the work underway but it was now proceeding well.

14. Mr Wilson did not challenge Mr Johnston’s evidence about J E Road.  It followed that he was not able to contend that the Administration was negligent in giving priority to J E Road over Stage 2 of the Burnt Pine project.  However, he suggested it might still have been possible to fund the construction of a concrete footpath, if nothing more, in the Burnt Pine Stage 2 area.  He made two comments about what had been done.  First, he criticised the decision to carry out the whole of the Stage 1 work, including beautification works, rather than to give priority to the provision of footpaths throughout the whole area ie. the Stage 1 and Stage 2 sections.  Second, Mr Wilson questioned a 1999 decision to withdraw from allocated road funds a sum of $90,000, being money left over from the Burnt Pine Stage 1 works.  The money was apparently reallocated to non-road purposes by the Finance Minister.

15. There was no evidence as to the reason for the Finance Minister’s reallocation decision or as to the use to which the $90,000 was put.  Accordingly, I do not have the information that would be necessary before I could hold that the decision represented a breach of the Administration’s duty of care to the plaintiffs.  Moreover, and more generally in regard to the suggestion that the Administration should have constructed concrete footpaths in advance of other roadworks, it is necessary to note the following evidence of Mr Johnston:

    ‘Q.      You were asked a question about whether any request was ever made for funds for the construction of just a footpath with lighting or just a footpath without lighting, and you said no?
    A.       That’s correct.

    Q.       Why not?  That is a footpath in the Stage 2A area?
    A.       The area in Burnt Pine has a suitable walking track, if you want to call it.  It’s at the present time adequate for pedestrians.  At the time there was priorities for other works.

    Q.       What other works are you referring to?
    A.       Other reconstruction works on roads, depending on which roads we were undertaking at the time.  There was high priority to put a concrete footpath through town.

    Q.       You told the court that part of the extra works involved in Stage 1 was ensuring, by the lowering of cables and the like, that the surveyed level of the road and the parking areas and the footpath all came together?
    A.       That’s correct.

    Q.       As a matter of works procedure, in other words, once you get on the ground technically and you’re doing your surveys of your levels and the like, could you see any reason why you would first do a footpath and then later do roads and parking areas between the footpath and the road?
    A.       No, you do your road first and build everything else off that.

    Q.       Why is that the approach that you would take?
    A.       The survey gives you your proper heights.  The difference between your road level and at some places your boundary or fence or shop fronts could vary between a metre or a metre and a half in stages.  If you put a footpath in first and then try to marry it to the road, you could end up with banks that are over 45 or unsuitable for parking.  It’s just common practice to go from the road and work outwards.’

16. Mr Wilson did not challenge either of the key propositions in this evidence: first, at the present time, the relevant area in Burnt Pine ‘has a suitable walking tack … adequate for pedestrians’; and, second, that the proper and usual practice is to build the ‘road’ – that is, the bitumen carriageway - and work outwards from it.

17. If, in a particular case, pedestrians are being exposed to danger, it may be necessary, in order to avoid breach of the road authority’s duty of care, for a road authority to depart from usual practice and urgently build a footpath, leaving until later the remainder of the road works; even if this will ultimately be a more expensive course of action.  However, that was not the situation in this case.  It might have been more comfortable for pedestrians to traverse the Stage 2 area on a concrete footpath.  But Mr Johnston was correct to say that the existing route, along the top of the northern bank of the road, is ‘adequate for pedestrians’.  The top of the bank is relatively flat.  Leaving aside possible cow pats, it seems to be hazard-free.

18. The only problem encountered by the plaintiffs, in using the top of the bank on their outward journey, was the presence of some cow pats.  They avoided this hazard without difficulty.  It was dark when the plaintiffs returned.  However, they each carried a new, relatively large, torch.  The torches surely would have illuminated, and enabled the plaintiffs to avoid, the cow pats.

19. Of course, even a concrete footpath would not necessarily have been free of cow pats.  According to the evidence, cows are not usually present in this area, but sometimes they stray into it.  Unless the Stage 2 works involved removal of all the grass, which seems never to have been contemplated, straying cows might still linger sufficiently to leave cow pats on the footpath.

20. Having regard to the whole of the evidence, it seems to me impossible to find the Administration breached its duty of care to the plaintiffs in any of the ways pleaded by the plaintiffs in paras 6 and 7 of their Amended Statements of Claim.  The plaintiffs’ claims against the second defendant must be dismissed.

21. I am conscious of the dire consequences of this conclusion, from the plaintiffs’ point of view.  Each of the plaintiffs was injured by the impact of Mr Edward’s car.  I understand the injuries sustained by Mrs Smith to be extensive and continuing, possibly permanent.  Norfolk Island law does not require motor vehicle owners to be insured against third party claims and I gather Mr Edward was not so insured.  Although the plaintiffs will each have a legal right to collect their damages from Mr Edward personally, in evidence he gave his occupation as ‘pensioner’.  From this fact, and the decision of the plaintiffs’ advisers to join the second and third defendants, I infer that Mr Edward is not a man of financial substance.  So it seems doubtful that the plaintiffs will recover much money from him.

22. This likely situation points up the unsatisfactory nature of a legal regime that fails to include a compulsory motor accident compensation scheme.  I understand that Australians and New Zealanders constitute the overwhelming majority of Norfolk Island’s tourists.  In both Australia and New Zealand, there are schemes for ensuring payment of compensation to all victims of motor accidents, or at least those who can prove negligence.  So I think most visitors to Norfolk Island would be surprised and alarmed to learn they are at risk of being left to fend for themselves if they are unfortunate enough to be injured in a motor accident caused by the negligence of somebody else, even though they are not themselves at fault.  This case vividly illustrates the desirability of the Administration and Legislative Assembly giving attention to the establishment on the Island of a compulsory third party insurance scheme.

    Disposition

23. The parties suggested that I hand down my reasons for judgment and direct them to bring in short minutes of orders designed to reflect my conclusions.  I will take that course.  There seems to be no reason why costs should not follow the event in relation to each claim.  However, I express the hope that the Administration will give consideration to the possibility, in the special circumstances of this case, of not enforcing its costs orders against the plaintiffs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            22 March 2006

Counsel for the Plaintiffs:	Mr K Wilson SC
Solicitor for the Plaintiffs:	O’Reilly Lillicrap
Solicitor for the First Defendant:	Mr W Richards
Counsel for the Second Defendant:	Mr P Garling QC
Solicitor for the Second Defendant:	Phillips Fox
Dates of Hearing:	8, 9 and 10 February 2006
Date of Judgment:	22 March 2006