Edson v Roads & Traffic Authority [2006] NSWCA 68 | Case summary

Edson v Roads & Traffic Authority [2006] NSWCA 68 | Case summary | Zoe

[40]

7 In fact, on the evening in question, the fence and wall did not restrict access to the freeway. The fence had either been pushed over or cut through and a section of the sound wall had been removed, leaving a gap through which persons could easily pass. Some time before the accident, Ms Edson and a group of other young persons had passed from the eastern side through the gap in the wall and crossed the freeway. When Ms Edson was injured, she was attempting to cross the freeway from the western side. She was in haste (for reasons that I will describe) to return to the eastern side. She entered the freeway from the west by running over the fence that was lying on the ground. 8 Ms Edson brought proceedings for damages in negligence against both the RTA and the Campbelltown City Council. Her action rested on three bases. Firstly, she contended that each defendant should have constructed a walkway across the freeway near the point where she was injured. She argued that, had this been done, she would not have attempted to run across it. Secondly, she contended that for some years - on a daily basis - very large numbers of residents on both sides of the freeway, to the knowledge of the RTA and the Council, had walked across the freeway in the area where she was knocked down. She argued that the RTA and the Council should have prevented this practice by constructing a stronger and more effective fence and wall on either side of the freeway. Thirdly, she argued that the RTA and the Council should have maintained the existing wall and fence more effectively. She submitted that had these measures been taken she would not have attempted to cross the freeway as she did. 9 Murray ADCJ dismissed Ms Edson's claim against the Council and this Court is not now concerned with that claim. The Council is not a party to the appeal. 10 Murray ADCJ also dismissed Ms Edson's claim against the RTA. Ms Edson appeals against that decision. She does not challenge the judge's rejection of her claim that the RTA should have built a walkway across the freeway. She does, however, challenge his Honour's rejection of her arguments that the RTA should have erected a stronger wall and fence and implemented more effective maintenance procedures. 11 Despite dismissing her claim, the judge very properly assessed Ms Edson's damages. He arrived at a figure of $461,524 which included an amount of $200,000 in respect of future economic loss. The RTA cross-appeals against the assessment of future economic loss. 12 The principal issues raised by the arguments in the appeal and cross-appeal are the following:

[53]

The attempts of the RTA to prevent pedestrians crossing the freeway 27 In September 1993 a police inspection located 10 holes in the fence on one side of the road and 14 holes in the fence on the other side. Discussions took place between the Council and the RTA. They considered strengthening the existing fencing, conducting a safety campaign, constructing a pedestrian overbridge, and installing warning signs. 28 On 1 November 1993, the RTA wrote to the Council stating: "While it is recognised that it is not possible to completely eliminate such acts of vandalism, Authority representatives have recently commenced inspections along the fence on a daily basis to effect immediate repairs where necessary to ensure the safety of pedestrians and motorists." 29 On 10 November 1993, the Coroner reported on the inquest of a person who was fatally injured while crossing the freeway. The Coroner drew attention to the need for regular maintenance of the fences. At the time, there were fences on both sides of the freeway. 30 By 1994 an increasing number of fatalities and serious accidents involving pedestrians prompted the Council and the RTA to investigate the construction of two pedestrian overpasses in the vicinity. 31 On 9 March 1994, the Council wrote to the RTA suggesting that the RTA give consideration to providing more secure barriers in the open space abutting the freeway for a total distance of 650 metres. 32 In the period March 1993 to June 1997 there were seven reported accidents involving pedestrians in the relevant area. 33 By letter dated 24 January 1997, the Inspector of Police (Eaglevale) wrote to the mayor of the Council referring to a meeting of the Raby Community Safety Committee. He noted that in the area in question there were gaps in the fencing along the eastern side of the freeway and there were "no signs warning or deterring pedestrians from entering into or crossing the Freeway". The letter asked the mayor to liaise with the RTA to have sections of the fencing "repaired/upgraded". 34 The question of the construction of overpasses was then taken up once more. Community consultation on the issue, however, occurred only as from March 1999. 35 As I have noted, in late 1997 Mr Upton conducted an investigation of the incidence of pedestrians crossing the freeway between Raby and St Andrews. He testified in this regard: "There was a very high frequency of crossings at the time I was there … I can recall that there was a young person on a skateboard going across the Freeway. I also noted a woman pushing a stroller across the Freeway. And I was frightened by the - with what I saw".

[54]

He said that his "fright" inspired him to write a report and "get something done". 36 In Mr Upton's report of 27 November 1997, he noted that pedestrians had for many years illegally entered the road reserve to cross the freeway and the RTA had continually repaired the fencing to inhibit access. He said that the sound wall had been "continually smashed". He said that the problem had been given coverage by the local media and had acquired political significance. This led to the Minister's office asking to be kept informed of the RTA's progress. After noting the extraordinary numbers of crossings, to which I have already referred, Mr Upton stated: "With these numbers crossing, and also with the high volume of traffic travelling at speeds of 110 kph, the risk of a pedestrian being hit by a vehicle is very high." 37 Mr Upton noted that apart from the frequent vandalism to the sound wall, the fences had repeatedly been damaged in an effort to maintain access to the path. He observed that the annual maintenance cost of repairing the fencing once a week was estimated to be $36,000. He concluded: "To maintain this site in an acceptable condition the present annual cost to the RTA for repairs as a result of vandalism can therefore be expected to amount to more than $125,000." 38 Mr Upton recommended: "… [t]he RTA act immediately to discourage pedestrians from using this location to cross the Freeway …" 39 The RTA's Asset Manager (a senior officer of the RTA) agreed with Mr Upton's recommendations. He noted the following at the bottom of Mr Upton's report: "I concur with the recommendation to action this asap as we currently are unable to stop access across the Freeway". 40 Mr Upton expanded on his recommendations in the course of his cross-examination. He was asked about his standing instructions to RTA inspectors to deal with damage to the sound wall. He testified: "There was - well, my instruction was that we needed to keep repairing the damage to the noise wall and to the fence as it occurred; and, I was advised that there would be a considerable cost involved with that, and I told them that that's too bad, we've just got to continue to fix it, and we will look into how we can resolve the ongoing underlying problems relating to why the locals are - want to cause the damage, but we can't stop repairing the fence and the noise walls, we have to continue to maintain that, even at the high frequency that it was."

[75]

(b) Once Parliament had prescribed, by s 70(b) of the Roads Act 1993 (NSW), an offence for trespassing into the Freeway and the Freeway reserve, "there is no room for the common law to say then that if you are aware of a course of unlawful or illegal conduct you must act to prevent it". 71 The general principles relating to the imposition of a common law duty of care on a statutory authority have often been considered and discussed by the High Court, see, for example, Sutherland Shire Council v Heyman (1985) 157 CLR 424, Pyrenees Shire Council v Day (1998) 192 CLR 330, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, Brodie v Singleton Shire Council (2001) 206 CLR 512 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. 72 These authorities lay down that a statutory body may come under a common law duty of care both in relation to the exercise and the failure to exercise its powers and functions. The common law duty is not a statutory duty of the kind enforceable by a public law remedy. As Gaudron J said in Crimmins at 18, "the statute pursuant to which the body is created and its powers conferred operates 'in the milieu of the common law'. ... And the common law applies to that body unless excluded". See also Sutherland Shire Council v Heyman at 460 where Mason J observed that "the statute facilitates the existence of a common law duty of care." Whether the legislation expressly or impliedly excludes the operation of the common law is a matter of statutory construction. 73 The remarks of Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459-461 are the foundation of the later discussions in the other cases to which I have referred. In my reasons in Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports 81-749 (with which Mason P and McColl JA agreed) at [22] I drew the following propositions from Mason J's observations: "(a) Generally, a public authority, which is under no statutory obligation to exercise a power, owes no common law duty of care to do so.

[79]

The expression "carry out road work" is defined to include "carry out any activity in connection with the construction, installation, maintenance, repair, removal or replacement of a road work". Section 7(1) provides that a roads authority may carry out road work on any public road for which it is the road authority and on any other land under its control. 79 In my view, there is nothing in the relevant legislation that supports the inference that the legislature intended to exclude the common law from applying to the conduct of the RTA. 80 The only provision of the Roads Act on which Mr Garling relied for his submission that the legislature did not intend there to be a private right of action against the RTA for failing to construct or maintain structures such as the wall and fence was s 70(b) of the Roads Act which creates an offence for trespassing into the freeway and the freeway reserve. He did not refer to the Transport Administration Act. In my opinion, s 70(b) is insufficient to detract from the long-held view that the RTA may attract a common law duty of care to it. To paraphrase Beazley JA in Chotiputhsilpa v Waterhouse [2005] NSWCA 295 at [54], in the case of a road authority, where there is a highly managed system for road management, and where the authority has sole control over the object concerned and its maintenance, the question whether that authority owes a general duty of care is almost rhetorical. 81 There are a number of instances where members of the High Court have expressed the view that a highway authority is capable of attracting a duty of care. In Sutherland Shire Council v Heyman Mason J explained at 460 that a duty of care might be imposed where an authority occupies premises, or owns or controls a highway. In Brodie v Singleton Shire Council Gaudron, McHugh and Gummow JJ said at paras [102] to [103], 558 to 559.: "[O]n 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."

[80]

Gaudron, McHugh and Gummow JJ said further at [150], 577: "The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the [Local Government] Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk." 82 See also Pledge v Roads and Traffic Authority (2004) 205 ALR 56 where the High Court accepted that the RTA was liable at common law to a pedestrian for the design, construction, planting and maintenance of a nature strip that divided the Great Western Highway. Webb v South Australia (1982) 56 ALJR 912 is another High Court case where a highway authority was held to owe a duty of care to the pedestrian. There have been several cases in this Court where the RTA has been held to owe a common law duty of care in connection with its highway activities see, for example, Chotiputhsilpa v Waterhouse, RTA v McGregor (2005) 44 MVR 261, RTA v McGuiness (2003) Aust Torts Reports 81-688, Squillacioti v RTA [2002] NSWCA 133 and RTA v Fletcher Leighton Contractors (2001) 33 MVR 215. 83 Contrary to the submission advanced on behalf of the RTA, a finding in this case that the RTA has breached its common law duty of care by failing to exercise its statutory powers would not result in the common law thereby compelling the RTA to carry out road work. A finding of this kind would merely hold that the RTA had a duty of care to take reasonable steps for the safety of persons using the freeway and its surrounds. 84 In my opinion, the RTA's submissions based on the first three paragraphs of its notice of contention should be rejected.

[81]

Obviousness of the risk as a factor affecting the existence of a duty of care 85 There is at present a difference within this Court as to whether, in cases involving a highway authority's duty of care, the obviousness of the risk is relevant to the existence of a duty of care or whether it goes only to breach of duty. 86 Examples of cases which hold that the obviousness of the risk is relevant to the duty of care are Burwood Council v Byrnes [2002] NSWCA 343 and Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679. The reasoning in these cases is based on the statement of Gaudron, McHugh and Gummow JJ in Brodie at 581; [163]: "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface." 87 On the other hand, Temora Shire Council v Stein (2004) 134 LGERA 407 and Sutherland Shire Council v Henshaw [2004] NSWCA 386 hold that obviousness of the risk to the careful pedestrian goes to breach of the duty of care. 88 The concept that obviousness of the risk affects the existence of a duty of care rests on the extent to which a defendant is entitled to assume that persons will take reasonable care for their own safety. In Brodie at 581; [163] Gaudron, McHugh and Gummow JJ said, in regard to whether persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, "[e]ach case will, of course, turn on its own facts". In my opinion, this means that no universal rule can be applied in regard to this issue. Each case has to be judged by reference to its own circumstances. 89 In my reasons in Clarke v Coleambally Ski Club [2004] NSWCA 376 (with which Beazley JA agreed) I endeavoured to show that there is no absolute category of cases in which it can be said that obviousness of the risk determines the existence of a duty of care. What has been said in cases such as Brodie on this issue can only be regarded as general guidelines although in most cases these guidelines will be determinative of the issue. 90 In Clarke v Coleambally Ski Club I said at [26] to [33]: "The duty of care of road users extends to exercising care in respect of careless and inattentive drivers and pedestrians; even those whose faculties are impaired by alcohol: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 (at 520 per Deane J). Road users are expected to have regard to the fact that other road users often, negligently, take obvious risks to their own detriment. The law also holds that employers must take reasonable care for workers and, in doing so, must expect that some workers may be careless of their own safety even by taking obvious risks. These are illustrations of the general proposition that in some circumstances the law of negligence considers it to be reasonable to pay due regard to the possible negligent conduct of others, even in respect of obvious risks. There are other similar examples. As a general rule, however, walking along footpaths in the open air and participating in recreational activities in large areas of open land and water (such as national parks or reserves) fall into a different factual category. Two reasons for this are the following. Firstly, while it is by no means unknown for participants in such activities to take obvious risks, it is common knowledge that such behaviour does not occur with anything like the frequency as does the lack of care for their own safety that is displayed by persons such as road users and workers in the employment context. Secondly, there are usually serious practical difficulties (that may involve the incurring of considerable expense - often required to be borne, at least indirectly, by the general community) and environmental and aesthetic problems in taking effective steps to make areas such as footpaths, national parks, reserves and other areas of open space safe for persons who do not take proper care for themselves. On the application of these matters to what has become commonly known as the Shirt calculus ( Wyong Shire Council v Shirt (1980) 146 CLR 40) the conclusion usually arrived at (depending of course on the circumstances of each case) is that occupiers of such areas may reasonably rely on entrants exercising due care for their own safety and having the good sense to avoid obvious risks. This explains, it seems to me, the view taken of the limited scope of the duty of care owed by a local authority to a person walking along a footpath (see Brodie v Singleton Shire Council ; Ghantous v Hawkesbury City Council [(2001) 206 CLR 512] …" 91 In Liverpool City Council v Millett (2004) 43 MVR 193 Tobias JA (with whom Mason P agreed) followed the reasoning in Clarke v Coleambally Ski Club and distinguished between "what the law requires of a road authority in exercising reasonable care with respect to a pedestrian and what it requires in exercising such care with respect to a road user/driver". Tobias JA said that the law regards it as reasonable in the case of pedestrians for the authority to expect an adult pedestrian in broad daylight to exercise ordinary care for his or her own safety to perceive and avoid obvious hazards. His Honour explained that, on the other hand, the law regards it as reasonable in the case of road users/drivers for the authority to remedy a defective roadway even where the road user fails to exercise ordinary care for his or her own safety. This is because the law recognises that drivers of motor vehicles, like employees, fail on a daily basis to exercise care for their own safety. For economic and social (policy) reasons, the law therefore requires road authorities, like employers, to take heed of the conduct of road users and, therefore, to exercise reasonable care to provide a roadway which will at worse reduce and at best eliminate, the injurious consequences of that conduct. 92 25,000 people each year crossed the freeway by using the well-worn path and ignoring the obvious risk involved. The RTA knew for several years that vast numbers of people were crossing the freeway in this way. The RTA therefore knew that in this particular area persons using the freeway were not taking care for themselves. This was a general practice in the neighbourhood and not confined to a few careless persons. Because of the exigencies of life in the satellite suburbs bordering on the freeway, the obvious risks involved in crossing by the path were not deterring the local inhabitants. Persons of all ages, but particularly young people were putting their lives and those of others at risk about every ten minutes on a daily basis. 93 In Brodie Gaudron, McHugh and Gummow JJ said at 580; [160]: "In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care." 94 In the circumstances I have described, the factual underpinning of the proposition that a road authority is duty bound only to require a road to be safe not in all circumstances but for pedestrians exercising reasonable care for their own safety, was absent. Here, the RTA long knew that the pedestrians were not exercising reasonable care for their own safety and, in large numbers, were constantly not doing so. The RTA could not rely on residents in the vicinity of the path to look after themselves and to act with due care. 95 Here the risk that had to be foreseen was one resulting from persons in large numbers ignoring the obvious hazards of crossing the freeway. To the knowledge of the RTA, the transport arrangements and pedestrian access from St Andrews to Raby were such that no reliance could be placed on the local inhabitants doing the sensible thing and not crossing the freeway in the face of the oncoming vehicles. 96 In a sense, the tavern and shops in Raby were an allurement to the children and young people in St Andrews. The law has long recognised that, particularly in the case of children, the presence of an allurement on land is relevant to the finding of a duty of care: see Hackshaw v Shaw (1984) 155 CLR 614 per Dawson J (at 672), Commissioner of Main Roads v Jones (2005) 215 ALR 418 at 436; [76] and cases cited in footnote 39. This reinforces the inference that a duty of care should be imposed on the RTA.

[83]

Discussion of the judge's findings regarding the RTA's breach of its duty of care 99 I reiterate that, despite his provisional conclusion that the RTA had breached its duty of care, Murray ADCJ found that, by reason of Ms Edson being a trespasser, her careless behaviour, the obviousness of the risk, and the principles he derived from Mawlodi, the RTA, in fact, had not breached its duty of care. 100 I deal firstly with the consequences of Ms Edson being a trespasser. The judge's reliance on Commissioner for Railways (NSW) v Cardy was misplaced. Since Hackshaw v Shaw (1984) 155 CLR 614 and Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 the law has accepted that an occupier of land owes a person entering the land the ordinary common law duty to take reasonable care. An occupier owes that general duty of care irrespective of whether that person enters as an invitee, licensee or trespasser (subject, of course, to there being circumstances that give rise to a general duty). The fact that a person is a trespasser may be relevant but that does not by itself mean that an occupier is under no duty of care to that person. 101 Secondly, the fact that Ms Edson was heedless of the traffic when she ran onto the freeway does not exculpate the RTA. The fact that she may have acted in a foolhardy way when she attempted to cross in the face of the traffic goes to contributory negligence. It does not excuse the RTA from failing to discharge its duty of care. 102 The third ground on which Murray ADCJ held that the RTA had not breached its duty of care was the obviousness of the risk. I have previously dealt with the obviousness of the risk insofar as it was a factor affecting the existence of a duty of care and my remarks in that respect are relevant to breach as well. 103 In Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Reports 81-815 I observed at [53]: "A common expression of principle as to the concept of obviousness of risk is manifest from the unanimous decision in [ Thompson v Woolworths (Queensland) Pty Ltd (2005) 79 ALJR 904] and the judgments of those justices in [ Mulligan v Coffs Harbour City Council (2005) 211 ALR 764] and [ Vairy v Wyong Shire Council (2005) 211 ALR 711] who formed a majority on this issue. It can be articulated as follows. Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. I make no comment as to whether it is relevant also to the existence of a duty of care as that was not in issue in this case (and see [ Ghantous v Hawkesbury City Council (2001) 206 CLR 512] and the comment of Gummow J in Vairy at [55] and [80]). The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance as to be effectively conclusive." 104 I have pointed out that the obvious risks involved in crossing the freeway by the path were not deterring the local inhabitants, of which many were children. The RTA could not assume that most persons would take reasonable care for their own safety. I do not think that in this case the obviousness of the risk was of such significance and importance as to be effectively conclusive. Where the exigencies of life and human nature combine to cause large numbers of persons to take grave risks in utilising areas under the control of a statutory authority, the community expects that the authority itself will take reasonable steps to limit the harm likely to result. It was the very function of the RTA, after all, to promote traffic safety. Considerations of common humanity would require the RTA to act: cf Hackshaw v Shaw (at 674 per Dawson J). 105 Fourthly, Mawlodi v State Rail Authority of New South Wales is distinguishable in material respects from the present case. There is a vast difference between the large numbers of persons who annually crossed the freeway at the point where Ms Edson was injured and the occasional instance of a person from time to time walking across railway lines. The present is not a case of casual trespassing; here 25,000 people each year crossed at the same spot in very dangerous circumstances - sometimes with fatal results. Unlike the situation in Mawlodi, the RTA's own officer, Mr Upton, recommended that it "act immediately to discourage persons from using this location to cross the freeway". Mr Upton urged that options and solutions be developed for implementation. In Mawlodi the SRA had taken measures that the Court found "to be perfectly reasonable". It had erected a fence and put in place a system for regular inspection and repair of the fence. Here, the senior officers of the RTA had recognised that the measures that had been taken were inadequate and they themselves recommended that other urgent steps be taken. 106 Accordingly, I consider that his Honour's reasons for finding that the RTA had not breached its duty of care cannot be accepted.

[87]

The notice of contention in regard to causation 115 The RTA's notice of contention asserted that it was not open to conclude, on the findings of Murray ADCJ, that any breach of duty on the part of the RTA caused or materially contributed to Ms Edson's loss. 116 Mr Garling submitted that for Ms Edson to succeed "in the negligent maintenance case" she would have to demonstrate "what was an appropriate regime of maintenance, it not being 24 hours a day 7 days a week". 117 Mr Upton explained what was "an appropriate regime of maintenance". He in fact gave instructions to the RTA inspectors "to continue to repair the damage as it became evident, and to keep an on-going lookout for it". In my view, this adequately described the maintenance that should have been carried out. This evidence was not challenged. What was meant by an "on-going lookout" has to be seen in the context of the RTA's letter to the Council of 1 November 1993 stating that their representatives "had commenced inspections along the fence on a daily basis to effect immediate repairs where necessary to ensure the safety of pedestrians and motorists". 118 Ms Edson's case on maintenance was based on the fact that the RTA officers had not complied with the standing instructions they received from Mr Upton. The judge found that these allegations had been proved. The fence on the western side was allowed to remain down and to have gaps in it "for a substantial period of time prior to [Ms Edson's] accident". The gap in the sound wall, too, was allowed to stand almost indefinitely. 119 Ms Edson's case on causation as a whole has to be judged by reference to the evidence and findings as to the wall as well as the fence. The judge found that the use of the path would have been prevented by the construction of an impenetrable barrier on one side only of the freeway. That, he said, would be a reasonable response to the risk of injury. 120 It was not suggested that the wall could have been easily climbed. The inference is that this is not the case; that being the reason for unknown persons continually removing or destroying panels to create gaps in it. 121 It is common sense that a sturdy two-metre chain wire mesh fence would not easily be climbed. There is no evidence of persons gaining access to the freeway by climbing the fence. They gained access by pushing parts of the fence down or making holes in it. Had Mr Upton's recommendation (with which the Asset Manager concurred) been implemented and a pool fence of strong upright steel bars with considerable height been installed, it would have been "very difficult" (as Mr Upton testified) for someone to climb over or to cut through it. 122 Mr Upton said that he would have repaired the sound wall with full strength concrete. This would have made it harder for people to break the concrete with a sledgehammer or kick it with their feet. This is how he understood it had been broken in the past. 123 Had Mr Upton's instructions as to maintenance been carried out, the gaps in the wall and the fence would have been closed on the day that each was made. 124 Had all these construction and maintenance measures been taken (both with regard to the wall and the fence) it would have been far more difficult for the local inhabitants to cross the freeway in accordance with their established practice. 125 Ms Edson and the group of young people with whom she was with on the evening of her accident took it for granted that they would be able to cross the freeway as they did. When they noticed the arrival of the police they all moved towards the freeway in order to cross it and get away from the police. Their actions and, in particular, those of Ms Edson on the evening in question were all based on their belief that there was ready access across the freeway as had long been the case. 126 In my view, had the RTA not breached its duty of care in respects found by the judge, the people in the area and, in particular, the younger inhabitants, would have been dissuaded from using the path. While it may be that at times persons would have been able to penetrate the barriers, these would have been far more isolated occurrences. The general practice of crossing the freeway would have ceased. The inference to be drawn, based on common sense, is that the existence of a stronger wall and a fence made of stronger (and different) material, together with regular maintenance and repair, would have substantially deterred people from crossing the freeway. 127 In my view, had these measures been taken Ms Edson would not have attempted to cross the freeway. I would not uphold the notice of contention in this respect.

[90]

Damages 138 I have mentioned that Murray ADCJ assessed damages at $461,524.30. Of this sum $200,000 was for future economic loss. This amount is the subject of challenge by way of cross-appeal. 139 Ms Edson suffered a severely comminuted and displaced fracture of the right acetabulum, and an unstable and displaced pelvic ring disruption. She also had a complete tear of the lateral, co-lateral and posterior cruciate ligaments in the left knee. 140 At the time of the trial Ms Edson had pelvic pain that was secondary to degenerative changes (post traumatic osteoarthritis) in the right sacro-iliac and right hip. She had residual instability in the left knee and pain in the right shoulder, secondary to the fractured clavicle. There was a 25% chance of her requiring a total hip replacement at a later stage. She would require at least one further revision if that total hip replacement occurred. There was a 20% chance that she would need a left total knee replacement. It was likely that she would require at least one revision if that occurred. 141 The judge found that Ms Edson was fit for full-time work but would be unfit for active work involving lifting objects in excess of 10 kilos. She would also be unfit for work requiring prolonged standing or walking. These restrictions are permanent. There was some evidence of psychological and brain damage but the judge rejected this. 142 The judge's findings in regard to past economic loss are relevant to his challenged findings as to future economic loss. His Honour dealt with past economic loss as follows: "At the time of the accident [Ms Edson] was in year 8 at high school. Following the accident she was hospitalised until 7 October 1998, and remained at home recuperating for the rest of the year. She resumed high school in 1999, but left school at the end of year 10 in the year 2000. She was a poor student, both before and after the accident. In July 2001 she gained employment … as an administration clerk/junior secretary. In this position she was unable to work full-time, and frequently required time off work for doctors' appointments. [Her employers describe her] as a quick learner, and if inclined, had the capacity to develop her secretarial skills further. Her chances of advancement, however, were limited by her inability to work full-time. In April 2004 [Ms Edson] moved with her family to Tweed Heads, where she hopes to study to become a beautician." 143 His Honour concluded: "It is difficult to identify from this evidence any precise economic loss. No doubt her education was disrupted by the effects of her injury, and I believe that her future work capacity will be curtailed substantially by the development of osteoarthritis in both the hip and left knee in the future." 144 Murray ADCJ referred to a report by a forensic accountant, Mr Geoff Collins, which identified a past loss of $14,317. This loss was calculated on the assumption that Ms Edson would have been able to work full-time, but was unable to do so. For the period from 2002 to 2004 Ms Edson's actual earnings were $34,629. Mr Collins calculated that, on the basis of the relevant State award, Ms Edson would have earned $47,719. The judge considered that on these figures he should allow the sum of $8,000 as representing Ms Edson's past economic loss. 145 His Honour dealt with future economic loss as follows: "I think [Ms Edson] will be prevented from realising her full work potential in the future. I think also that she will have periods of time out of the work force because of the need for operative treatment. I also think that [Ms Edson] will be unable to work, because of her injuries, until the age of 65. Doing the best I can I would access her future economic loss, by way of buffer only, at $200,000. The above figures are inclusive of loss of superannuation benefit." 146 This assessment takes into account the fact that Ms Edson ceased working as a secretary and took up work as a beautician. She testified that she found work as a secretary too draining. Her back and hip were too painful and she said that she could not commit herself permanently to work of this kind. She chose to become a beautician as she could then work at home when she felt up to it. 147 His Honour's award is challenged on two grounds. The first was described as follows in the RTA's written submissions: "There is no evidentiary foundation for such a substantial amount. There was no medical evidence that osteoarthritis would curtail her career. If there is to be a surgical response to osteoarthritis, some period of recuperation is to be expected, and thus a buffer may be justified, but not such as to justify this award. The award, having regard to its quantum, appears to presume that such surgical intervention would fail. His Honour's discretion miscarried, the award being manifestly excessive, and there being no evidentiary foundation for findings supporting such a figure." 148 The trial ended in September 2004. At that time Ms Edson was nearly 20 years of age, having been born on 31 October 1984. The $200,000 awarded by the judge for future economic loss therefore represents an award for a period of some 45 years. 149 Mr Collins calculated Ms Edson's future loss of earning capacity. He commenced by taking into account the fact that she had worked as a secretary/personal assistant and he had regard to earnings in accordance with the State award (as he had done in regard to past economic loss). He then assessed Ms Edson's expected future earning capacity as a beautician by reference to the average weekly earnings for beauticians. The average weekly earnings for beauticians were substantially lower than the average weekly earnings for secretaries. On this basis he calculated the value of Ms Edson's loss of capacity as $213,088 and loss of potential superannuation contributions as $23,803, giving a total loss of $236,891. 150 There is little evidence as to whether the pain from which Ms Edson suffered would endure. Dr Harris, an orthopaedic and spine specialist, expressed the opinion on 28 August 2003 that her symptoms were unlikely to change significantly in the next 12 months. Dr Benanzio, an orthopaedic surgeon, expressed the opinion by report dated 23 October 2002 that post-traumatic degenerative changes may be expected in the right hip joint and the left knee joint. He said the prognosis "remains very guarded". There was no other evidence on this issue. In my opinion, it was open to the judge to infer that the pain from which Ms Edson suffered would endure permanently. 151 The net earnings of a secretary were about $23,000 per annum. Mr Garling submitted that if the reduction in working life was taken to be 10 years the present day value of the loss based on the wages of a secretary compared to those of a beautician would be about $57,000. If it be assumed that Ms Edson would lose a year's work by reason of her various operations, a further loss of $23,000 would have to be taken into account. That brings one to an amount of $80,000. 152 In my opinion, Mr Garling's submissions have force. In my opinion, the award made by his Honour was excessive and an appropriate award as a buffer for future economic loss would be $125,000. 153 The next aspect of the RTA's challenge to the award for future economic loss is the fact that his Honour did not reduce the buffer by any discount for vicissitudes. In my opinion, however, the very nature of a buffer takes into account vicissitudes and I do not think there is substance in the RTA's argument in this respect.

[92]

Priestley JA observed at [8] that any conduct by the defendant, or state of affairs in which the defendant is an integral part, which makes it fair and reasonable for other parties to be joined as defendants, would be relevant to deciding on fair costs orders. 156 The first part of Ms Edson's written submissions contended that it was reasonable for her to argue at trial that the Council "had and exercised control over its reserves and in particular over the Blain Reserve". 157 The mere fact, however, that Ms Edson had a reasonable case against the Council does not justify the making of a Bullock order. 158 Ms Edson then submitted that the RTA "materially contributed to the joinder and pursuit of the claim against the Council". Ms Edson's written submissions contended that, on the findings made by Murray ADCJ, it could be inferred that the RTA "was acting as if it needed to have the Council join with it to take steps to undertake works necessary to prevent access being gained to the freeway …". 159 His Honour found that the RTA sought the assistance of the Council in the development of proposals for a footbridge and that there were substantial communications between the Council and the RTA. These matters, alone, do not justify the making of a Bullock order. I do not accept that the RTA was acting as submitted. 160 The respondent sought to read parts of an affidavit of 6 November 2002 by the solicitor who had carriage of the case for Ms Edson. According to Ms Edson's written submissions: "If leave is granted to read the above parts of the affidavit, [Ms Edson] will contend: - (a) her advisors acted reasonably and prudently in continuing a case against the Council; (b) [the RTA] acted unreasonably in not joining in the release of the Council; (c) [The RTA] has been on notice since 11 October 2002 that [Ms Edson] would seek a costs order against [the RTA] if [Ms Edson] failed in the action against the Council." 161 The matters referred to in sub-paragraphs (a) and (c) do not advance Ms Edson's case in relation to the making of a Bullock order. 162 The submission in sub-paragraph (b) appears to be based on a letter dated 11 October 2002 written by Ms Edson's solicitors to the solicitors for the RTA. This letter contains the following paragraph: "Please advise whether you agree that all liability in respect of the plaintiff's claim rests with you. If so we will attend to releasing the Campbelltown City Council from the proceedings." 163 In my opinion, it was not unreasonable at the time for the RTA to refuse to agree that all liability rested with it. The phraseology used in the letter seems to call for an admission of liability from the RTA. It was not unreasonable for the RTA at that stage to deny liability. 164 I am not persuaded by the material in the affidavit of 6 November 2002 that a Bullock order should be made. I would dismiss Ms Edson's application for a Bullock order.

Edson v Roads & Traffic Authority

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