Duty of Care
37 Although questioned by McHugh J in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449, the fundamental principle which this Court must apply is that stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, where his Honour said at pp 47-48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expenses, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to the ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
38 It could hardly be doubted that by providing a pedestrian crossing outside the Club, the Council created a situation which, unless appropriately designed, posed a risk to safety, especially to children using the crossing. Pedestrians were encouraged to use the facility to cross the road and many would assume that their journey was made safer because of it.
39 It was plainly foreseeable that if adequate sight lines were not provided between drivers of motor vehicles and users of the crossing, the safety of pedestrians would be put at risk. It hardly needed the advice of the Guide to reach this conclusion. The obvious purpose in extending the footpath was to allow pedestrians to move to a point within the roadway where they were visible to cars and could make an informed decision as to whether or not to cross. This required more than a capacity to prop at the edge of the trafficable lane. It required sufficient sight distance to enable the pedestrian to obtain an appreciation of the traffic situation as he or she approached the trafficable lane so that both the approaching car and the pedestrian would be able to view each other and respond effectively to each other's actions.
40 If it was not obvious that effective sight distances were necessary, the position is made plain by the relevant section of the Guide. And, where as here, children are likely to be users of the facility in significant numbers, the Guide makes plain that a more conservative design is required.
41 The evidence disclosed that a simple means of ensuring that satisfactory sight lines were available was to exclude parking in the two bays adjoining the footpath extension. Instead of doing this, the Council provided for the parking of disabled vehicles in these spaces, without any restriction as to length. In this event, it was entirely foreseeable that vehicles using the spaces lawfully may include large wagons, vans or buses parked in a manner which obscured the view of oncoming traffic until the pedestrian was virtually in the trafficable lane. It was also foreseeable that the spaces would be occupied, both legally and illegally, by vehicles of the type which were parked there on the night of the accident. The Council could have excluded parking for the minimum distance necessary to allow satisfactory sight lines. By not doing so, it provided no indication that to park adjacent to the crossing was unsafe and did nothing to alert any driver contemplating using the disabled space, contrary to the notice, that, he or she might be endangering the lives of pedestrians.
42 The common law has in recent years considered the difficulties inherent in the role of highway authorities in providing and maintaining roadways. The decision in Brodie v Singleton Shire Council (2001) 206 CLR 512 removed the distinction between misfeasance and non-feasance which had previously guided the law, and confirmed that the ordinary law of negligence is to be applied in all circumstances.
43 In relation to pedestrians utilising footpaths this Court has recently considered Brodie in Richmond Valley Council v Standing [2002] NSWCA 359; Burwood Council v Byrnes [2002] NSWCA 343; and Roads and Traffic Authority of New South Wales v McGuinness [2002] NSWCA 210. In the context of a user of a footway, it is clear that the duty of the provider of the footway is to make the road safe "for users exercising reasonable care for their own safety." However, as the joint judgment in Brodie makes plain, the nature of the public facility and any particular inadequacy in it, must always be considered when determining the content of a duty of care.
44 In the present case the discussion in the joint judgment of Mason, Brennan and Deane JJ in Webb v The State of South Australia (1982) 43 ALR 465 is of particular relevance, both because of the consideration to be given to the plaintiff's conduct and the circumstances where the road authority has, by its conduct, actually created the danger. Their Honours said:
"The primary judge found that the false kerb and the intervening space was 'a very obvious feature'. And so it was. The primary judge also found that the false kerb was not dangerous. This finding seems to have been based on its obviousness and on the circumstance that in the seven years that elapsed since its construction there was no record of any previous accident. But obviousness and the absence of accident over this period does not mean that the construction presented no risk of injury. As the false kerb was adjacent to a bus stop there existed the distinct possibility that a pedestrian, because he was in a hurry to catch a bus or was intent on observing an approaching bus or because his attention was distracted for some other reason, would fail to take sufficient care to avoid injury to himself. The happening of the accident demonstrated, if demonstration be needed, that the construction had the potential to cause injury.
Of course a pedestrian could avoid the possibility of injury by taking due care. However, the reasonable man does not assume that others will always take due care; he must recognise that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety. It seems to us that the courts below gave undue emphasis to the circumstance that injury could be avoided by a pedestrian who took reasonable care for his own safety.
The question then is: What is the response which the reasonable man, foreseeing the risk, would make to it? Is the risk so small that a reasonable man would think it right to neglect it? In Wyong Mason J said (at p 285):
'The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.'
Here the risk of significant personal injury was obvious; the occurrence of such an injury was a distinct possibility. To determine liability in the present case, one must postulate the reasonable man's response to the risk of occurrence of personal injury arising from the construction and maintenance of the false kerb, a risk which might lead to injury in a variety of ways. It is not necessary to postulate a response to the risk that personal injury would arise in the precise way in which the appellant actually sustained his injury - by jamming his foot in the intervening space.
The risk could have been eliminated without undue difficulty or expense. The primary judge acknowledged as much in his judgment. He referred to the evidence of Mr Dempsey, a civil engineer, who said that the respondent could have eliminated all possible risk by filling the space between the false kerb and the permanent kerb. The witness said that a consequential surface drainage problem would be created by this action. He suggested two alternative means of coping with that problem, both of which he described as 'relatively simple'. It is not necessary to recount those two alternatives here. The primary judge was prepared to assume that either of these alternatives would have been effective. It is sufficient for us to say that each alternative was a satisfactory solution to what was a comparatively simple engineering problem.
One other factor should be mentioned. The respondent created the danger by its artificial construction in the highway. In this situation the application of a reasonable standard of care calls for the elimination of risk of injury to users of the highway presented by that artificial construction, the more so where elimination of the risk can be achieved without undue difficulty and expense. It is well established that it is the duty of highway authorities to keep:
'… the artificial work which they [have] created in such a state as to prevent its causing a danger to passengers on the highway which, but for such artificial construction, would not have existed, or, at the least, of protecting the public against the danger … '
( Borough of Bathurst v Macpherson (1879) 4 App Cas 256, at p 265; Thompson v Mayor, & C., of Brighton , [1894] 1 QB 332, at p 339; see also Buckle v Bayswater Road Board (1936) 57 CLR 259 at pp 283-284). It would not be right or reasonable for a highway authority to ignore a risk of injury which it has created by its artificial construction in the highway, if it entails a possible risk of injury to pedestrians which, though small, is not fanciful or farfetched."
45 It is submitted by the Council that by providing a space between the extremity of the footpath extension and the trafficable lane the Council had discharged its obligation to users of the crossing. However, that space was wholly inadequate. It was less than a metre in width and required any pedestrian who may be infirm, pushing a child in a stroller or, as happened, a child on a bicycle, if a vehicle was parked so as to obscure his or her view, to prop on the very edge of the traffic lane to observe whether there was oncoming traffic. The design of the crossing merely recreated the very situation which the footpath extension was designed to avoid. The pedestrian would be excluded from view by parked vehicles just as he or she would be if no extension had been provided.
46 It is increasingly common to find pedestrian facilities similar to those constructed in this case. It is obviously intended that pedestrians use them in the expectation that a safe road crossing will be available. However, adequate safety levels can only exist if acceptable sight distance is provided - a matter over which the relevant constructing body has control. In most cases, this must mean excluding all vehicles from parking for a minimum distance adjoining the facility. Although not everyone will obey a parking sign it can be expected that most will. Others, who might otherwise breach the regulation, would be unlikely to disregard it when the obvious purpose is to provide for pedestrian safety.
47 By failing to exclude parking adjacent to the crossing, which effectively acknowledged that this was a safe practice, the Council breached its duty of care. It was undoubtedly foreseeable that larger vehicles would park, both legally and illegally, in the space and obstruct the pedestrians' view of oncoming vehicles. Reasonable measures were required to avoid this occurring. In the circumstances of this case it would have been a simple matter to provide a no standing or other sign which excluded parking.