CHOTIPUTHSILPA v. WATERHOUSE & ORS. [2005] NSWCA 295

13 The first respondent estimated that his speed before the accident was 55 to 60km/h. He said that there was a vehicle in lane 2 about 1 to 2 car lengths in front him. He was not aware of vehicles in lane 3. He thought the vehicle in lane 2 was white. He said that immediately before the accident, his attention was focused on the car in front of him. He then described the accident in this way. "We'd got to a point just off the main part of the bridge itself near the bus stop. All of a sudden there was a gentleman who ran out in front of me from the right hand side, lane number 2, and it was almost like he leapt out from the middle lane and into my lane". The first respondent said that as soon as he saw the appellant, he hit his brakes but the car hit him and the appellant hit the windscreen of the car. He described the accident as happening "in an instant"; "a couple of seconds…or a second…it was very fast". He said that there was nothing which had alerted him to anything happening on his right. He said "it was just normal traffic flowing through". In particular, he did not see any of the vehicles to his right apply their brakes, nor did he hear the sound of any braking. 14 The driver of the vehicle immediately behind the first respondent's car gave evidence that he heard the sound of skidding in front of him and a thump and then saw the appellant's body in the air. He did not see the appellant crossing the road before he was struck. 15 The driver of the white van travelling in lane 2 did not stop after the accident, and the vehicle remained unidentified other than by way of its description as a "white van". Liability of the first respondent

16 Senior Counsel for the appellant acknowledged at the outset of the appeal that he could not succeed in establishing, on the appeal, a breach of duty by the first respondent based upon a failure to respond to the appellant's presence on the roadway from the time he appeared from in front of the white van. To that extent, there was no challenge to the trial judge's finding. However, Senior Counsel submitted that the appellant had alleged negligence against the first respondent on the alternate basis that the first respondent had failed to appreciate that the vehicles in the lanes to the right of him were reacting to an emergency of some kind. It was submitted that had he been paying attention, he too would have reacted to the occurrence of some emergency and had enough time to slow down so as to avoid an accident of the severity of that which occurred. To that extent, it was alleged that the first respondent had breached his duty of care. It was submitted that the trial judge had failed to deal with that case. 17 In my opinion, this argument should be rejected. The first respondent was travelling within the speed limit and was keeping a proper look-out. Speeds, distances and braking times involve making precise calculations. As the speed and precise locations of the vehicles on the Anzac Bridge at the time could not be ascertained, there was no basis upon which the inference could be drawn that the first respondent should have seen the brakelights of the white vehicle to his right or the vehicles in lane 3, or have heard the sound of braking of either that vehicle or vehicles in lane 3. Even had he seen or heard something coming from vehicles in either of those two lanes, or should have done so, it would not have been open to the trial judge to conclude that the first respondent showed any breach of care by failing to slow down. As I have already indicated, the presence of a pedestrian on this part of the Bridge would be entirely unexpected. Accordingly, even had there been some braking action by vehicles in lanes 2 and 3, it would have been reasonable for a driver in lane 1 to interpret such activity as a response by vehicles in those lanes to something happening with the traffic in those lanes. As that inference was at least equally likely, if not more probable, the appellant has failed to establish that the first respondent breached his duty of care. 18 I would only add that it is not clear from his Honour's judgment whether his Honour did fail to deal with this part of the case. He certainly mentioned it. The difficulty is knowing whether his Honour resolved it. Assuming, however, that his Honour did not deal with this issue, then in the normal course, a new trial at least on that issue is required. However, the Court is only empowered to make such an order if it appears that some substantial wrong or miscarriage has thereby been occasioned: Supreme Court Rules 1970 (NSW) Pt 51 r 23. As I have said, the appellant has failed to establish any case in negligence against the first respondent. It follows that the appeal against the first respondent should be dismissed.

Liability of second respondent 19 The appellant raised 15 separate grounds of appeal against his Honour's finding in favour of the RTA. Those grounds may be broadly categorised as raising issues relating to: duty of care (Grounds 6 and 7); breach of duty (Grounds 1,2,4,5, and 8); causation (Grounds 9 and 10); the finding that the accident was due to appellant's own fault (Grounds 3,11,12 and 13); bias (Ground 14) and the failure to give adequate reasons (Ground 15). 20 As there was considerable reference in the argument on appeal relating to the expert and other technical evidence, it is convenient to review that evidence at this point. In doing so, it is important to understand how the case against the RTA evolved. The appellant's case was brought on the basis that at the time of the accident, there was a pictorial sign erected at the commencement of the footway/cycleway depicting a pedestrian and a bicycle. Erected immediately above that was a directional sign containing the words "Pyrmont, City" with a pictorial representation of a bicycle. The sign faced towards Victoria Road. Both respondents accepted that to be the case. However, on the 7th day of the hearing, after the close of the appellant's case, the first respondent informed the Court that he had photographic material that showed that in fact no signs were in place at the time of the accident. Senior counsel for the appellant complained that there had been a failure by the RTA in the discovery and subpoena process, to discover or produce documents that would have revealed that changes had been made by way of the erection of signs and a marking on the footway/cycleway. The problem was dealt with by the parties being permitted to recall their experts. 21 The appellant and the first respondent each called expert evidence. The expert evidence given on behalf of the appellant was by Mr Roger Stuart-Smith, Consultant Transport Engineer, and Mr Colin Wingrove, also a Consultant Transport Engineer. The expert evidence given in the case of the first respondent was by Mr William Bailey, a Mechanical and Bio-medical Engineer. The experts gave evidence not only in relation to the liability of the first respondent (as to distance, speed and the like), but also in relation to the signs that might, or should, have been erected to indicate the presence of the subway. The RTA had engaged an expert, Associate Professor Yandell, but did not advance evidence from him. 22 Mr Stuart-Smith considered that the Anzac Bridge was a freeway or expressway standard road. Roads of that standard required pedestrian grade separation (meaning that pedestrian crossings should be at a different level, either by way of an overpass or a subway) according to the design requirement specified by the "Guide to traffic engineering practice", Part 13, Pedestrian, Austroads, 1995. Mr Stuart-Smith considered, therefore, that the subway would have been a design requirement of the construction of the Bridge. He also pointed out that there are Australian Standards that apply to grade separated crossings: see Australian Standards AS 1742.8, Manual of Uniform Traffic Control Devices: Freeways, 1990. Australian Standard AS 1742.10 specified the pedestrian controls that should be applied where there were grade separated facilities. Mr Stuart-Smith expressed the opinion that given the placement of the bus stop a sign directing pedestrians to the subway should have been installed (Blue 43). He noted that the RTA Manual "Interim guide to signs and markings" (DMR, 1978 and amended), which was intended to assist the RTA in the application of Australian Standard AS 1742, specified the signs that should have been provided to direct pedestrians to use the subway when crossing the road. In particular, he stated that 3 signs specified in the Manual should have been present at the bus bay: first a sign stating "No pedestrian access" (sign G6-213) should have been in place in the direction of the freeway; secondly, a sign stating "Use footway" (sign G6-215) was required to direct pedestrians to the footway; and thirdly, a sign stating "Pedestrians must use subway to cross freeway" (sign G6-220) was required to direct pedestrians to the subway. 23 Mr Stuart-Smith pointed out that not only was there no sign present at the bus stop directing pedestrians to the stairs leading to the subway, there was no way for a pedestrian at the bus stop to know that a subway existed at the site. Mr Stuart-Smith added that even the presence of a directional sign such as "To the City" or "To Pyrmont" could have alerted pedestrians to the likelihood of the steps and pathway leading to a subway. Mr Stuart-Smith made extensive reference to the RTA Manual. Section 4.17-15 of the RTA Manual specifically notes that signs stating "Pedestrian subway" (with a directional arrow) should be located at the points of exit from a major roadway such as this which involved a divided roadway and a pedestrian subway. (It should be noted that when this report was prepared, Mr Stuart-Smith believed that the bus stop was in use). The RTA Manual also specifically provides that where a pedestrian crossing is required at a bus bay, then the appropriate sign to use is sign G6-220, which states "Pedestrians must use subway to cross freeway". This is the sign Mr Stuart-Smith said was required. The Manual further provides that the sign is to be repeated or made double-sided if necessary. 24 Mr Stuart-Smith was subsequently requested to review a report prepared by Associate Professor Yandell on behalf of the RTA. In a supplementary report dated 26 April 2002, Mr Stuart-Smith reiterated his view that there were no signs or clues that a subway was available for pedestrians to cross the Bridge from either the southern or northern side to the other side. He did not agree that the stairs which led down from the bus stop provided an adequate visual clue, for two reasons. In the first place, the stairs faced in a southerly direction which was the opposite direction to that which the appellant wished to travel. Secondly, they did not provide any indication to a pedestrian that they were anything more than an exit from the bus stop to the adjacent area. He observed that the other exit from the bus stop, which was the pathway leading to Victoria Road, was also leading in the opposite direction to the appellant's intended direction of travel. He confirmed his opinion expressed in his first report that appropriate signage was necessary. The only qualification he made was that the signage "Pedestrians must use subway" and "Pedestrian subway" (with a directional arrow) were appropriate alternative signs that could have been used. He observed that Australian Standard AS 1742.10 also provided that signs should be erected so as to come to the attention of those for whom they are intended.

25 In another supplementary report dated 22 October 2003, Mr Stuart- Smith also noted that the RTA's own manual made specific provision for children, who were classified as "vulnerable pedestrians". Other RTA material which he viewed acknowledged that "children are impulsive, have less well-developed thinking and sensing skills, do not have the developmental skills to identify safe places to cross the road and do no behave consistently". Interestingly, the RTA material indicated that the highest proportion of accidents involving children involve those aged between 10 and 14 years and that boys were twice as likely as girls to be involved in child-pedestrian accidents. 26 In essence, Mr Stuart-Smith was of the opinion that some signage indicating the presence of the subway and its location was required to alert a person standing at the bus bay that the other side could and should be accessed via the subway. He did not agree that it was sufficient for there to be merely a footway which, if travelled along for a distance of 35 metres, would have revealed that there was a subway underneath the Anzac Bridge. As he said "that's not the rationale behind the requirement for a sign". When asked by senior counsel for the RTA what the rationale was, Mr Stuart-Smith explained: "The rationale behind the requirement for a sign is that when pedestrians are faced with a situation where they want to cross the road - and in this case it's possible to be able to see the footway on the other side of the road, it's known in traffic engineering practice that a certain number of pedestrians, particularly younger pedestrians who may not have the safety skills or experience of older people, that a certain number of those will attempt to cross a road at grade, which means at the surface level." 27 He was also of the opinion that the fact that the bus bay was no longer a designated bus stop did not mean a subway sign should not have been erected.

Colin Wingrove 28 Colin Wingrove provided his first report on 16 February 2001 and a supplementary report on 22 October 2003. In his first report, Mr Wingrove expressed the opinion that although the subway provided the highest degree of protection for pedestrians wishing to cross the Bridge between north and south, it was not readily accessible because of the absence of any appropriate signage. As he described it, "without the appropriate signs directing pedestrians (or passengers alighting from the bus) to use the subway, the subway remained a disjointed entity from the bus stop". He was of the same opinion as Mr Stuart-Smith as to the signs that were appropriate to be used. 29 The purpose of Mr Wingrove's supplementary report was to take account of the fact that the signs depicted in the photographs were not in place at the time of the accident, but had been installed later. Mr Wingrove repeated his conclusion, expressed in his first report, of the need for proper guidance to be given to pedestrians about the availability of, and need to use, the pedestrian subway. He said this was required "so as to avoid the risk that in the absence of that information, they will attempt to cross the trafficable lanes of the roadway. The predictability of such conduct by pedestrians is well-known to those engaged in traffic engineering in its safety aspects, and has been well-known for decades". He concluded: "The [appellant], when he was confronted with the task of completing his journey home, did not have available to him the warning and direction signs which were necessary for his safety. He was at age 16 years and one month, a vulnerable pedestrian. I note that the RTA website…acknowledges that children are vulnerable pedestrians. The bus bay was a location where a variety of pedestrians of differing ages and levels of experience might be anticipated to find themselves for a variety of reasons at all times of the day. Children particularly require the benefit of the type of warning and direction signs, which I have indicated…given their well-known propensity for impulsive action and their diminished appreciation of danger". 30 Mr Wingrove expressed the opinion that it was not sufficient for the RTA to rely upon any apparent risk of injury from crossing a road such as this. He said: "This is because creating awareness by a pedestrian of a potential danger is a separate matter from providing the pedestrian with appropriate directions which will, in a timely and conspicuous manner, inform the pedestrian as to how he or she can conveniently avoid the danger and cross the road safely".

Mr Bailey 31 Mr Bailey provided three reports. In his first report, dated 18 May 2001, he commented upon the views expressed by Mr Wingrove in relation to signage and agreed with Mr Wingrove's comments. Mr Bailey observed that AS 1742.10 (1990): Manual of Uniform Traffic Control Devices, provided a relevant and appropriate standard for road authorities to assess the situation at the bus stop. He added: "It seems remarkable that provision of the underpass, bus stop and protected footpath along the western curb of the Anzac Bridge were not accompanied by adequate signage as the [subway] crossing is potentially the best facility along Victoria Road, an area where many serious pedestrian collision have occurred". 32 In his second report dated 18 September 2003, Mr. Bailey also commented upon the reports prepared by Mr. Stuart-Smith and Associate Professor Yandell. In relation to the signage at the bus stop, Mr. Bailey agreed with Mr Stuart-Smith that the signs at the bus stop provided no effective communication that the stairs and ramp connected to the bus stop on the opposite side of the road and/or that there was an underpass available to cross the traffic lanes. He further agreed with Mr Stuart-Smith that there were appropriate signs within the relevant Australian Standards and RTA Manuals that could be used to indicate that there was an underpass to enable pedestrians to cross to the other side. 33 At the time of his second report, Mr Bailey still believed that the sign which depicted a cycle and pedestrian with the words "Pyrmont" and "City" and a directional arrow down the ramp were in place at the time of the accident, but facing away from the bus stop. He accepted therefore, agreeing with the report of Associate Professor Yandell, that the signage thought to be present at the time of the accident was appropriate for pedestrians walking from the western end of the Bridge (the Victoria Road end) and intending to reach Pyrmont and the City. 34 However, he remained of the opinion that a clear graphic and text sign was needed to identify the subway given that it seemed implied that the designers of the Bridge must have expected that persons alighting at the bus bay would want to cross to the other side. He drew that implication from the fact that steps led directly from the bus stop down to the pathway that eventually led to the subway. Again he expressed the view that a typical sign which would have been appropriate was a "Use subway" sign. As he pointed out, such signs are primarily to inform pedestrians, who are unfamiliar with the area, of the location of entrances to these routes which might escape ready interpretation, even though the ramps were in plain sight. Mr Bailey accepted a comment made in Associate Professor Yandell's report that the appellant's accident was unique in this location. He said, however, that that comment had to be viewed with caution because it was made in the context of a reportedly low usage of the bus stop and its subsequent discontinuation by the State Transit Authority. 35 In a further supplementary report dated 24 October 2003, Mr. Bailey confirmed that the signage "Pyrmont/To City", which he understood was in place at the time of the accident, was inadequate. Mr Bailey confirmed these views in his oral evidence. In particular, he rejected the notion that what signs should be erected was a matter of subjective analysis. He said: "Not wholly subjective; there are principles to do with situations like this. The one that I'm mindful of is that a facility which is not in plain sight can be brought to a potential user's attention by the use of a sign of appropriate configuration, and in a place where it's likely to be seen." 36 Mr Bailey also rejected the notion that the steps clearly indicated where the footway went (or as the question was put "There can be only one answer"). He said: "With respect, I did exactly that and I thought it went down to the waterways. I was surprised when somebody told me there was an underpass. That was only my experience which - you know, whatever that means. But from the steps you don't see directly where the path curves under the bridge. There's no more than that. As you get down the path, you get to a point at which you do."

37 In the early 1980's the Department of Main Roads (DMR) first issued an "Interim Guide" to road signs and markings. Its objective was to serve as a field manual for the DMR and local government personnel involved in the construction and maintenance of roads. Specifically, it provided guidelines with respect to the nature of road signs and markings which should be taken into consideration when planning and constructing areas used by motor vehicles and pedestrians in New South Wales, for example, the shape, colour, and legends of sign-postings. 38 The Interim Guide acknowledged however, that given the multiplicity of road conditions across New South Wales, it was practically impossible to cater for every variable encountered when designing and constructing roads, or to attempt to exhaustively specify the types of traffic conditions encountered by pedestrians and motorists on the roads. As such, the field manual (and subsequent amendments since it was first prepared) simply purported to contain templates of signs and road markings, and attempted to describe, in a general way, the traffic conditions in which the use of particular signs were recommended. 39 A specific section of the field manual is dedicated to the nature of road signs and markings on "freeways". Included in this section are illustrations of signs which state whether there is pedestrian access across the freeway and signs which instruct pedestrians as to how to traverse a freeway. For example, one sign states " Pedestrians must use subway to cross freeway", while another sign provides directions to where the pedestrian subway is located. 40 Similarly, the manual contains a section which deals with road signage and markings in traffic conditions where there are designated access ways for pedestrians to cross the road. The Manual notes that on freeways and other roads characterised by high volumes of traffic, pedestrian access across the roadway is limited, and in some situations, totally prohibited. Rather, pedestrian access is often facilitated through the construction of a pathway under, or a Bridge over, such roads. The Manual not only sets out the markings that are recommended, namely, signs instructing pedestrians that they must use the subway or over-pass in order to cross the road, but also states that "consideration may be given" to fencing areas around freeways in such a way as to "induce pedestrians" to use the subway or overpass. The manual also recommends where such signs and road markings should be positioned in relation to the road and public access ways.

Roads and Traffic Authority 41 The Road and Traffic Authority guidelines require that an audit be undertaken prior to the completion of the construction of roadways. In the present case, an audit of the construction of the 'Glebe Island Bridge' roadways was completed in late 1995. Stage 4 of the Audit Report lists a number of generic matters relating to the site construction that were to be finalised prior to it being open to the public, including drainage, landscaping and adequate road surfacing. The audit report also states that at the "pre-opening" phase an investigation had to be undertaken into whether appropriate provisions have been made for "non-motorised traffic", that is, pedestrians. 42 The issues affecting pedestrians which were to be addressed prior to completion included: the construction of pathways; whether there is suitable access for persons in wheelchairs, the elderly and school children; the quality of the surface of pedestrian pathways, and the adequacy of fencing of partitions to separate pedestrians from the road. Finally, the report noted that signage should be erected which clearly explained how pedestrians could locate and utilise such pathways, including subways and overpasses. 43 With specific regard to pedestrian access and safety around and across freeways, the audit report enumerated that the following considerations were relevant: "Stage 3: Detailed Design 3.5: Special Road Users … 2. Pedestrians, including refuges … 2B. Are pedestrians deterred from crossing at unsafe locations? 2C. Can pedestrians cross safely at · Intersections? · Signalised and pedestrian crossings? · Refuges? · Kerb extensions? · Bridges and culverts? · Other locations?"

Evidence of Luke Morgan 44 The appellant also called evidence from Mr Luke Morgan. Mr Morgan, who is a barrister by profession, maintains an active fitness programme. In 1996, he was training for the Sydney half-marathon that was to be held in May of that year and was on a training jog in the company of two others from the Sydney Football Stadium. Having run through the City, Darling Harbour and the back of Pyrmont, the group ran onto the pathway leading from Pyrmont onto the northern side of the Bridge, running in a westerly direction. They had not run that route before. When they came to the end of the footpath, which he described as "near where there is now a statue" (other evidence locates the statue near to the bus bay on the northern side). Their intention was to "loop back through Glebe Point Road", which is on the southern side of the Bridge. He said that when they reached the point they looked for a way to cross the road. To do so, they crossed the New Jersey barrier in some fashion (either vaulting over it or threading through it). He said that although the traffic was light (it was about 6:30 in the morning), it was "quite a dangerous crossing because we were weaving between cars". 45 Mr Morgan said that before they crossed the road "we milled around for a little while because we couldn't quite work out…". Mr Morgan's answer was interrupted by senior counsel for the State Transit Authority, but his Honour ruled the evidence could continue. However, the answer was not finished. Later, in cross-examination, Mr Morgan gave the following evidence: "Q. …you can't remember seeing the bus shelter. Right? A. No. Q. Therefore, you can't say whether you looked to see whether there were any stairs going in a northerly direction away from the area where the statue was. A. No, that's not right, because we certainly were looking - we didn't elect - running across the road wasn't our first choice. We looked for a way to get over. Q. Did you see any stairs? A. No, that was the weird thing about it, because I've been back subsequently and I've done the run, and there's now an underpass - well, there may have been then, I don't know; but I remember the first time I went under the underpass, and I thought, "we should have taken this the first time because it's obviously much safer." … Q. And the underpass was obvious to you then, was it? A. That's right, yes. As I was under it, I was thinking I must have been crazy to have missed it on the first occasion."

Trial judge's reasoning 46 The trial judge set out his judgment in accordance with the following structure. First, in section 1, he looked at the claim made in the pleadings by the appellant against each specific defendant. He then set out the defences of each. He next referred to the fact that the case was initially conducted on the basis that the sign "To Pyrmont/To City" was in place at the time of the accident. His Honour also observed that the appellant had been cross-examined on that basis. His Honour observed that was erroneous and that it had been formally conceded part way through the hearing that those signs were not in place on the day of the accident. 47 In section 2, the trial judge dealt with the incident itself. In doing so, he set out briefly the facts relating to the appellant's arrival at the bus shelter and his crossing of the road. His Honour again referred to the misunderstanding about the state of the signage and noted that the experts had provided supplementary reports and given further evidence when this had become apparent. In section 3, his Honour dealt with the law. I will return to that shortly. In section 4, he dealt with the submissions of each of the parties. It seems, however, that despite this specific structure, his Honour, during the course of setting out the submissions, made certain findings. I make this observation not only because it is pertinent to an understanding of his Honour's judgment, but because it is also relevant to Ground 15 in which the appellant contends that the trial judge erred in failing to give proper reasons as he failed to sufficiently address the expert evidence and the issues of fact and law as between the appellant and, inter alia, the RTA. 48 In section 5, in the space of a page, his Honour set out his conclusion. 49 In dealing with the law relating to the claim against the RTA, the trial judge referred to the statement by Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459-460 in relation to the statutory duty of public authorities: "Generally speaking, a public authority which is under statutory obligation to exercise a power comes under no common law duty of care to do so". 50 In the present case that statement of principle does not provide any particular assistance as the RTA exercised its statutory power in building the Bridge. Having done so it owed a duty of care to those who were reasonably expected to use the Bridge, including pedestrians. This is apparent from Mason J's further statement in Sutherland Shire Council v. Heyman at 461: "There are other situations in which an authority's occupation of premises … or its ownership or control of a structure in a highway or of a public place … attracts to it a duty of care. In these cases the statute facilitates the existence of a common law duty of care. In the words of Lord Denning MR in Scott v. Green & Sons [1969] 1 WLR 301 at 304: 'The statute does not by itself give rise to a civil action, but it forms the foundation on which the common law can build a cause of action.'" 51 Unfortunately, the trial judge did not consider this additional passage and ultimately resolved the duty question against the appellant. This is discussed further below. 52 The trial judge next set out the passage from the judgment of McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 39 where his Honour posed a series of questions relevant to the determination of whether a statutory authority owed a duty of care in the following terms: "1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty. 2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from risk or harm? If no, then there is no duty. 3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty. 4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty. 5. Would such a duty impose liability with respect to the defendant's exercise of 'core policy making' or 'quasi-legislative' functions? If yes, then there is no duty. 6. Are there any supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty. If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority. 53 Having referred to those two cases, the trial judge then stated that it was the RTA which was given the authority and power to determine whether or not it was appropriate to erect signs, and what signs were appropriate, and their locations. It appears that question was in issue at some time. It is not in issue on the appeal. His Honour did not, however, address the catalogue of questions posed by McHugh J in Crimmins and which he had set out in his reasons. Had his Honour done so, that too would have lead him to the conclusion that the RTA owed a duty of care to the appellant. A consideration of the questions posed in Crimmins reveals the following. There was evidence within the RTA's own documentation that expressway conditions require specific pedestrian facilities by way of overpasses or underpasses/subways. There was also evidence within that material that younger people tend to act impulsively and unpredictably. Although the appellant was outside the age group who were involved in the highest rate of pedestrian accidents, (age group 10 to 14 years) he was not much older. The RTA material did not establish that persons outside the age group were not at risk, only that that was the age group that statistically was most at risk. The material also indicated that there was a higher percentage of male than female child pedestrian accidents. 54 In any event, in the case of a road authority, where there is a highly-managed system for road design, including pedestrian facilities and appropriate signage, the first question posed by McHugh J in Crimmins is almost rhetorical. Both the expert evidence and the RTA Manual, which itself referred to the Australian Standards established that the RTA's own internal procedures demonstrated the necessity for appropriate design of pedestrian facilities including adequate signage. Accordingly, the answer to the first 4 questions posed by McHugh J in Crimmins would be "yes". 55 A decision to erect appropriate signage to indicate the presence of the subway to enable pedestrian access to the northern side of the Bridge is not part of the RTA's "core policy making" or "quasi legislative" functions, nor is there any supervening policy reasons to deny the existence of a duty of care. To the contrary, as already indicated, the erection of appropriate signage was a well established procedure within the RTA's own road design guidelines. It follows that the 5th and 6th questions posed in Crimmins should be answered in the negative. That being so, within the framework posed by McHugh J, the RTA owed a duty of care to the appellant.

56 Leaving aside matters to which his Honour referred in relation to the respondent or the State Transit Authority, his Honour next considered the question of causation. In doing so, he relied first upon the statement in Rosenberg v Percival (2001) 205 CLR 434. That case related to the failure of a medical practitioner to give an adequate warning to a patient. McHugh J said at [45]: "In terms of causation theory, the critical fact is whether the patient would have taken action - refusing to have the operation - that would have avoided the harm suffered. But that fact can only be determined by making an anterior finding as to what the patient would have decided to do, if given the relevant warning…[t]he onus is on the patient to prove that he or she would have decided not to have the operation if given a warning of the risk of harm." 57 The trial judge then referred to the submission that the appellant had given no evidence as to what he would have done had there been the necessary warning signs, and therefore it was impossible for the Court to determine what action the appellant would have taken if appropriate signage had been in place. In this context, his Honour referred to Waverley Council v Lodge [2001] NSWCA 439 where Bryson J said at [35]: "Everyday experience does not support attributing talismanic force to signs as means of averting dangers. It is common place to see warning signs ignored. An attempt to analyse considerations supporting and adverse to erecting warning signs of this kind is made difficult by the obvious nature of the information which they would convey. " (emphasis added) 58 The trial judge then made the comment that there was no evidence given on behalf of the plaintiff as to the actual impact that advisory signs would have had on his behaviour, nor their utility or the extent to which they might be read, and if read, the extent to which the warning would be followed. Presumably, his Honour was thereby making a finding that the appellant had not established that the accident was caused by the negligence of the RTA. 59 There was no further elaboration on this in the trial judge's conclusion, beyond the statement that there was "[n]o basis for suggesting that the [RTA] should erect signs as suggested by the [appellant's] expert, Stuart-Smith, telling the plaintiff what was obvious" and that the accident was the appellant's own fault for having failed to take the underpass or walk 400 metres to Victoria Road. In making the comment on causation and drawing this conclusion, his Honour made no mention of any of the RTA's own requirements as to the erection of signage as was clearly specified in its own manual, nor to any of the evidence of the experts as to why signage was necessary. 60 Further, contrary to the statement that there was no evidence of the utility or the extent to which advisory signs might be read, or if read, the extent to which they would be followed, his Honour overlooked or ignored the RTA's own material, the expert evidence and the Australian Standards. The only inference to be drawn from all of that material was that signs advising of the presence and location of the subway were necessary adjuncts to safe road design on the Bridge. That was well documented within the RTA material which, in turn, was clearly derived from long experience both within the RTA and from road design principles generally which, as such design principles must, take into consideration the well-known vagaries of human behaviour. 61 His Honour's comment that the appellant gave no evidence of the impact that the advisory signs would have had on him was, strictly, correct. However, that of itself should not have determined the question of causation. The courts are considerably wary of any statement by persons that he or she would have obeyed a warning sign: see, for example, Commissioner of Main Roads v. Jones [2005] HCA 27, per Gleeson CJ at [5]-[10] and Rosenberg v. Percival at [16]. That wariness has now been enshrined in statute: see s.5M of the Civil Liability Act 2002 (NSW). Whether or not such evidence has been given, the whole of the evidence must be considered to determine the impact a warning may have had on a particular plaintiff. But in this case, the Court was not concerned with a warning sign as such. It was concerned with signage that should have provided information that the evidence suggested was required as a matter of course in the design of the Bridge, and which was particularly required in this case because there were insufficient visual clues to indicate that there was a subway that facilitated access to the other side of the Bridge. The appellant's evidence that he tried to find a way across to the other side of the Bridge, and took about 45 minutes to do so before he went onto the road, was sufficient evidence from which to infer that he would have used the subway had there been adequate signage to provide him with the information that the subway was present and would take him towards Pyrmont or the City.

Section 4 of the judgment: Trial judge's consideration of the submissions 62 In dealing with the submissions of each of the parties, the trial judge summarised the appellant's case against the RTA in terms that the RTA was negligent for providing "no sign with the necessary information that would guide to the safe route of the underpass". His Honour noted that the submissions acknowledged that the appellant was crossing an obviously dangerous road in peak hour traffic. 63 The RTA, for its part, submitted first, that it had no duty of care to the appellant because the risk was obvious and no signs would have been needed to tell a pedestrian that it was dangerous to cross the road. Secondly, the RTA submitted that there was no duty on the RTA to construct the underpass to which the attention of the appellant should have been drawn. In respect of this second submission, his Honour observed: "In this case [the RTA] is under no duty to provide signs which indicates the presence of a pedestrian subway when it cannot be argued that the RTA was under a duty to put up such a subway". 64 It is difficult to be sure whether in making this comment, his Honour was recording a submission or making a finding. If it was the latter then the finding was, in my opinion, erroneous. The matter can be looked at from two different perspectives. First, if the RTA wished to assert it had no duty to build a subway, then, in my opinion, it ought to have provided continuous pedestrian access without the need to go from the northern to the southern side of the Bridge or vice versa, or to have prevented pedestrian access onto the Anzac Bridge.

65 However, and this is the second perspective, having built a 7-lane Bridge with expressway characteristics, and having made provision for pedestrian access, it had a duty to take reasonable care for the safety of pedestrians using the Bridge. That may or may not have required a subway (or overpass) to be provided, depending upon the nature and extent and characteristics of the pedestrian access that was required. 66 As I have already discussed, pedestrian access on the southern side of the Bridge originally included bus passengers set down at the bus bay when there was a designated bus stop in operation. Notwithstanding that there was no longer a designated bus stop, the bus bay remained a possible place for passenger set down from private and commercial vehicles, such as taxis, for those wishing to access the nearby business area. The evidence indicated that there was at least some use of the bus bay for that purpose. Given those circumstances and the additional factor that the pedestrian footway went part away along the Bridge on one side, and part way on the other, some connection between the two was necessary. That is a matter of sheer common sense. The only practical means of connection was either an overpass or a subway, and as I have just pointed out, the expert evidence and the RTA's own evidence specified that this would have been a design requirement for the Bridge. The RTA chose to construct a subway as the means of connection. As pedestrian access was permitted in such a way that places on both sides of the Bridge could be and had to be accessed to be able to get from one end to the other, the RTA was under a duty of care to pedestrians wanting to cross from one side of the Bridge to the other for that purpose. The question which arises in that case is what was required to discharge that duty of care. As I have repeatedly adverted to throughout these reasons, the evidence on that was all one way. In this regard, however, his Honour stated: "Assuming there is a duty, [the RTA] has not breached that duty. Where the risk is not hidden or concealed, but is clear and obvious, [the RTA] should do nothing and leave the public to avert the risk themselves". 67 Again, it is not clear whether this records the RTA's submission or is a finding of his Honour, although on balance, I consider it is the former. This is likely to be so because a couple of paragraphs later, his Honour records a further submission to the like effect. His Honour then concludes this section by stating that the RTA could not foresee the possibility that a person such as the appellant would adopt the obviously dangerous course of crossing the road at that point over a safer alternative of crossing the road elsewhere or using the subway. But again, it is not clear whether that records a submission or is his Honour's finding. 68 His Honour records the RTA's submission on causation to the effect that there was no evidence as to whether the appellant would have acted upon any warning had signs been erected. I have already dealt with this above.

Section 5: Trial judge's conclusion 69 His Honour then set out his conclusions. Insofar as it is relevant to the case against the RTA, his Honour said: "I am unable to accept that [the appellant] could not have observed that the proper and alternate way to cross the road, rather than walk across speeding traffic, was to walk down the obvious ramp leading to the underpass to the other side. It was suicidal folly, and totally rash to elect to walk across a host of speeding vehicles. It is not an excuse for such a dangerous act to state that he was useful or bewildered to the extent that, unable to find his way to his home, he would take such a highly dangerous and obviously dangerous step of walking into a stream of fast-moving motor vehicles. There is no basis for suggesting that [the RTA] should erect signs as suggested by [the appellant's] expert, Mr Stuart-Smith, telling [the appellant] what was obvious, namely that if he wanted to get to the other side of the busy highway at the western end of Anzac Bridge, he should take the underpass, or walk 400 metres to lights at Victoria Road, rather than hurry across speeding motor vehicles. … [The appellant] was the author of his own harm - not [the RTA] who could not reasonably have anticipated that a plaintiff, left by a bus driver at that bus stop, would not fail to use an alternate way of crossing the road, rather than plunge into a dangerous line of speeding motor vehicles…" 70 His Honour then stated his finding that the first respondent was not the cause of the appellant's harm. In a separate paragraph, his Honour said: "I prefer the analysis of the [respondents] expert, Bailey, to the opinions of [the appellant's] experts". His Honour then said: "I adopt the submissions of the [respondents] and reject the arguments of the [appellant]. The [respondents] did not owe any duty of care to a pedestrian who ventured into the turmoil of traffic at peak hour, rather than find a safer way to cross the road". 71 His Honour found, alternatively, that if there was a duty then there had been no breach by any of the defendants. 72 An analysis of his Honour's reasons reveal a number of problems with the Honour's judgment. First, and perhaps most remarkably, insofar as the expert evidence was concerned, the entirety of the expert evidence that was called before his Honour was unanimous that the RTA should have erected signs at the bus stop indicating the existence of the subway, and that pedestrians should use the subway. It may be that in the one line sentence in his conclusion in which his Honour said that he preferred the evidence of Mr Bailey, his Honour intended to relate that only to the case against the first respondent. If that is so (and it is a reasonable understanding of his Honour's judgment), then his Honour failed, in my opinion, to adequately consider the experts' evidence. 73 Moreover, his Honour's conclusion that there was no basis for suggesting, as Mr Stuart-Smith did, that signs should be erected to tell the appellant what was obvious, was not an adequate discharge of his Honour's obligation to give reasons. The principles that govern that obligation are well rehearsed in this Court and it is unfortunate that they must again be brought to notice. It is no longer necessary to repeat their evolution. It is sufficient to repeat the principles as stated by Meagher JA in Beale v GIO (1997) 48 NSWLR 430 at 443: "First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. … Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found." 74 There are other omissions in his Honour's judgment. I have already referred to his Honour's failure to properly consider the law, especially in relation to Crimmins. His Honour also failed to make any mention of the RTA design guidelines. He did not refer to Mr Morgan's evidence, or to that part of Mr Bailey's evidence to the effect that the presence of the subway was not obvious. Nor did his Honour refer to the fact that he had a view of the area. Given his Honour's finding that it was "obvious" that the appellant should have used that subway, these matters were critical and required explication in his Honour's reasons. In particular, if he concluded from the observations he made on the occasion of the view, that the subway was "obvious", this should have been fully exposed by his Honour in his reasons and he should have explained why he did not accept the evidence to the contrary of Mr Morgan and Mr Bailey. It was also necessary for his Honour to discuss in his reasons why he found no breach of duty, even if the subway was obvious, given the weight of the evidence that explained why appropriate signage was required in the physical circumstances that operates at this locality. 75 In my opinion, his Honour did not give adequate reasons for his decision. Rather, he recited some facts, some law, some submissions and stated his conclusions. He did not make findings on that material, nor refer to critical evidence. He did not explain his reasons for reaching the conclusion he did. A failure to give adequate reasons involves an appealable error. Often, if not usually, that requires a new trial. Both the appellant and the RTA resisted that possibility and submitted that this Court could determine the matter itself. I agree that this is a case where the Court may, and should, do so. There are no credit questions involved and much of the evidence was of a technical nature. 76 It will be apparent from what I have already said that I consider that the RTA breached its duty of care to the appellant. All of the evidence was to the effect that signs should have been erected indicating the presence and location of the subway. The evidence was also to the effect that the presence of the subway was not obvious from the top of the steps. Before it became obvious, it was necessary to walk some distance along the footway. The appellant was only 16 years of age, a newcomer to the county and in a strange location. He was concerned that if he went down the pathway, he would get lost. These are precisely the type of human characteristics and dynamics that are implicitly recognised in the RTA's design manuals and which call for the RTA to take reasonable care when it constructs roads and pedestrian facilities that are for the safety of those who use such facilities. The design manuals provide clear and appropriate guidance as to what is required in order to ensure that such reasonable care is taken. The RTA in this case failed to take the necessary reasonable care. As I have already dealt with the question of causation, it follows that I consider there should have been a verdict for the appellant against the RTA. Before concluding on the question of liability, brief reference should be made to the bias issue and to an application that the Court itself have a view of the stairs and subway. Bias Issue 77 The appellant's case closed on the fifth day of the hearing. The first respondent commenced his case, calling as his first witness the passenger, Ms Burns. When she concluded her evidence, Mr Sheppard, the driver who took the photograph on his mobile phone commenced his evidence. The luncheon adjournment was then had. Immediately after the luncheon adjournment, the following exchange occurred between the trial judge and Mr Gross, senior counsel for the appellant. "HIS HONOUR: I suppose, Mr Gross, that what I meant was, at 1 o'clock, was that you can talk along certain other lines, can't you, at this stage when we're dealing with liability only? GROSS: Your Honour, indeed we can. The difficulty is negotiation traditionally is a two-way process. That's not occurring. HIS HONOUR: You mean you've kicked the ball downfield and they won't even kick it back again. GROSS: Exactly. HIS HONOUR: Saying, "We're prepared if you'll do so-and-so about your action, take a certain view on costs and those sort of things," they haven't even said that to you? You wouldn't countenance that, would you? GROSS: I have no idea about the details but nothing of any use in this case is occurring. HIS HONOUR: I suppose insurance companies can spend money without hope of getting it back. That's their concern. Three of them. Amazing, isn't it? GROSS: I'm sorry, what's amazing, your Honour? HIS HONOUR: Insurance companies spend their money on these sort of things with no hope of getting it back in some instances. GROSS: Why should they get it back, your Honour? Like any other litigant, they spend their money." 78 On the 7th day of the trial after other issues had arisen including an issue relating to Associate Professor Yandell's report and the revelation that there were no signs of any sort in place at the time of the accident, Mr Gross made an application for his Honour to disqualify himself from further hearing the matter. One basis for the application was on the ground of apprehended bias, having regard to the exchange which occurred between his Honour and Mr Gross which is set out above. His Honour rejected the application. 79 It was submitted that his Honour erred in doing so as it was likely to be perceived by a fair-minded observer that the effect of his Honour's remarks were, first, a suggestion by the trial judge that the appellant should approach the defendant's legal representatives with a view to settling his claim by a judgment in favour of the defendants with each party to pay his and its own costs. Secondly, that his Honour was concerned that the 3 defendants (who by implication would be successful) would not recover their legal costs against the appellant, a situation which his Honour described as "amazing". It was submitted that his Honour was implying that this was an unfortunate situation for the defendants. 80 Senior counsel for the appellant submitted that his Honour's comments could not be construed as a general exhortation to the parties that a settlement be investigated, a scenario which is common place in trials in this jurisdiction. Rather, it was submitted that his Honour's remarks could be readily interpreted as an attempt to discourage the appellant from proceeding further with the action because his Honour had a pre-conceived view as to the merits of the case that were adverse to the appellant, and was unduly concerned about the financial consequences to the defendants or their insurers in being unable to recover costs. 81 In Webb v The Queen (1994) 181 CLR 41, Mason CJ and McHugh J noted (at 47) that where an allegation of bias has been made against a judge, that "the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case": see Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-294, 300; Vakauta v Kelly (1989) 167 CLR 568 at 575, 584; Grassby v The Queen (1989) 168 CLR 1 at 20. Their Honours pointed out that the principle behind the "reasonable apprehension or suspicion test" was that it is of "fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done": see R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259. 82 In my opinion, although his Honour's remarks are, at least on a first reading, a little obscure and in one sense inappropriate, I do not consider that they satisfy the test for apprehended bias. It appears that the trial judge was making a comment about possible settlement negotiation. This is evident from Mr Gross' first response that negotiation was a two-way process and that was not occurring. His Honour picked up Mr Gross' point with the footballing analogy, "you mean you've kicked the ball downfield etc…" 83 His Honour then made the comment which is at the heart of the application for bias. In that comment, his Honour explicates upon the second part of the football analogy: "and they won't even kick it back again". In my opinion, his Honour was merely stating what Mr Gross had said, that the defendant had not even responded to offer. Having noted that not even minimal response had been made, his Honour then made the comment: "You wouldn't countenance that, would you?". In my opinion, this comment is properly construed as an observation by his Honour that the appellant, properly advised and having regard to all features of the case at that point, would not walk away from his claim subject only to some favourable consideration on costs. 84 The next comment seemed again to be no more than a rueful observation that if the defendants were successful the insurance companies would not be able to recover their costs. It is these comments, about the insurance companies and the recovery of costs, which in my opinion were inappropriate. Notwithstanding that his Honour may well have been stating no more than the obvious, it is not a matter for his concern as part of the trial process that insurance companies might spend money in circumstances where a plaintiff has no ability to meet any order for costs. Whilst the incurring of costs by any party, whether an insurance company or not, is a matter of overall concern in the administration of justice, it is not for an individual judge within the parameters of the running of a case to make such remarks. There are appropriate ways to encourage parties to settle matters. 85 However, although I consider that some of his Honour's remarks were ill-advised, I do not think that overall a reasonable lay observer would apprehend that his Honour had pre-judged the case. In those circumstances, I would reject this ground of appeal.

Application for Court to have a view 86 During the course of his argument before the Court, senior counsel for the RTA suggested to the Court that it ought to have a view of the stairs, the footway and the subway so that the Court could be properly informed as to the layout, lines of sight and distances. The application was opposed by the appellant. At the conclusion of the hearing, the Court gave leave to the RTA to file a Notice of Motion within 24 hours seeking an order that the Court have a view. That Notice of Motion was filed. 87 At common law, observations made by the Court on a view did not form part of the corpus of evidence. Rather, such observations were treated as an aid to the understanding of the sworn evidence. That position was changed under the Evidence Act 1995 (NSW). Section 54 of that Act provides that a court may draw any reasonable inference from what is seen, heard or noticed during the course of a view. The reception of evidence on an appeal is governed by s 75A of the Supreme Court Act 1970. Section 75A(7) provides that the Court may receive further evidence. Section 75A(8) provides that where the appeal is from the judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds or unless it is fresh evidence: see s.75A(9). The RTA's application is that the Court receive fresh evidence because the Court itself would be observing the layout, line of sight and distances and drawing its own inferences.

88 Section 53 of the Evidence Act, which provides for the making of an application that the court have a view requires the court to take a number of matters into account. Those considerations include whether the parties will be present: s 53(3)(a); and, the extent to which the place or scene to be inspected has materially altered: s 53(3)(e). 89 In this case, the appellant has returned to Thailand. Presumably, arrangements could be made for him to be brought back to Australia for the purposes of a further inspection, although the RTA's application did not make that offer. However, even if it did, it was common ground between the parties, and there was evidence, that the site has changed quite radically since the time of the accident. The footpath on the southern side of the Bridge (leading to and from Victoria Road) has been converted to an additional vehicular traffic lane. Further, that part of the footway which commenced on the southern footpath down to the steps no longer exists; instead it has been fenced-off and filled with plants. And although the bus shelter remains intact, the bus bay itself has been fenced-off. In my opinion, this is such a substantial change in the lay-out of the location that not only would a view serve no purpose, it may well be prejudicial to one or other of the parties. I would further add that in my view, the pictorial, graphic and video recording evidence in this matter provided the Court with adequate material to understand the lay-out of the area. Accordingly, that application should be rejected.

90 It was not disputed in this case that the appellant failed to take care for his own safety in crossing the road. There was fast-moving and heavy traffic on the Bridge. There was no pedestrian refuge at which the appellant could pause before seeking to negotiate the second half of the roadway. His access across the roadway was hindered, if not prevented, by the New Jersey barrier which is of such a design that it cannot be easily be traversed. Having reached the New Jersey barrier, the appellant was effectively forced to return to the southern side. Senior counsel for the appellant, whilst conceding the extreme folly of the appellant's initial foray onto the roadway, submitted that the trial judge had failed to examine the question of whether or not the risk taken by the appellant in returning to the southern side was undertaken, in effect, as a matter of necessity. Otherwise, he would have found himself stranded in the middle. 91 The purport of this submission was that the appellant had not failed to take care for his own safety. In my opinion, the submission should be rejected. The appellant had put himself in a position of danger by crossing the road. In that respect he had failed to take care for his own safety. He continued to tail to take care for his own safety by walking back across the road in front of fast moving oncoming traffic. The fact that the appellant may have been marooned in the middle of the road against or on the New Jersey barrier is not to the point. 92 The assessment of the causal effect of a party's own negligence is not a matter of precise calculation. It is a matter of evaluative assessment. In this case, the appellant's failure to take care for his own safety was of a substantial nature, such that the starting point for a consideration of the assessment of his own negligence commences at least at 50 per cent. The evaluative question is the extent, if any, to which the assessment ought be greater. It will be recalled that the trial judge described the appellant's conduct as "foolhardy, suicidal and dangerous". His Honour's use of those expressions is understandable. However, as with all matters of human experience, a person's actions or reactions are rarely set in a black and white tableau. This case is a classic demonstration of that. The appellant was a young person. Age is a relevant consideration. In McHale v. Watson (1966) 115 CLR 199 at 215, Owen J said: "It is plain that in dealing with the question of contributory negligence on the part of a child, its age is a relevant fact since the care expected of it is that reasonably to be expected of a child of similar age, intelligence and experience. That has been laid down again and again."

Kitto J noted that it had never been doubted that contributory negligence on the part of a child consisted in the failure of the child " to exercise the care reasonably to be expected of an ordinary child of the same age ". 93 He was in a strange situation, and was clearly worried. However, the matter was not presented to the Court as conduct taken "in the agony of the moment", given the time lapse between alighting from the bus and crossing the road. The RTA was in control of the static environment and was negligent for not having placed a simple sign at the top of the stairway. On the other hand, a 16 year old boy would still reasonably be expected to have appreciated that it was highly dangerous to cross the road at that point, notwithstanding the circumstances of being in unfamiliar surroundings. 94 In all of the circumstances, and after considerable deliberation on this issue, I have reached the conclusion that the appellant's failure to take reasonable care for his own safety was such that he bore the greater responsibility for the accident. Accordingly, I have reached the conclusion that the appropriate assessment of contributory negligence ought to be 60 per cent.

Proposed orders 95 As I indicated at the commencement of the judgment, the trial judge did not make a provisional assessment of damages. Accordingly, the matter will have to be remitted to the District Court for that assessment. This Court has commented, from time to time upon the desirability of a trial judge making a provisional assessment of damages even if a verdict is found for a defendant, so as to avoid the consequence, as has occurred here, of the need for a new trial limited to damages. This was a case where the trial judge should have engaged in that process. 96 At the conclusion of the hearing of the appeal, senior counsel for the appellant indicated to the Court that there may be costs consequences depending upon the outcome of the Appeal and requested the Court not to make any costs orders until the parties had an opportunity to consider the judgment. Given that request, the Court should defer making any order as to costs until the parties have had an opportunity to bring in further short written submissions on the costs orders sought.

97 I propose, therefore, the following orders:

1. Appeal allowed in part. 2. Confirm the verdict ordered by the trial judge in favour of the first respondent. 3. Set aside the verdict ordered by the trial judge in favour of the second respondent. 4. Verdict and judgment in favour of the appellant against the second respondent, with damages to be assessed. 5. Remit the matter to the District Court for a re-hearing limited to damages. Those damages to be assessed on the basis that the appellant was 60% contributorily negligent. 6. Dismiss the second respondent's Notice of Motion filed 24 June 2005.

7. The parties are to bring in short written submissions as to costs within 7 days of the date of judgment. 98 GILES JA: I agree with Beazley JA. 99 IPP JA: I agree with Beazley JA. **********

07/09/2005 - Correst spelling of respondent's name in heading - Paragraph(s) - 08/09/2005 - amendment to citation - Paragraph(s) -

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