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[2007] NSWDC 194
District Court of NSW
2007-08-28
Original judgment source is linked above.
Introduction
Background 5. The configuration of the pathway and the layout of the surrounding area and streets are important to the understanding of how the accident occurred. A word description follows, but the photographs in the expert reports tendered will assist. At the time of the accident, Master Myers lived nearby with his family in Isaac Close, Wyong. From the end of his street, a cul-de-sac, a long sloping concrete path extended downhill some 65 metres in an easterly direction through a narrow laneway to the western kerb of McKell Avenue, which ran in a north-south direction. Over the road, the path then continued on down from the eastern kerb of McKell Avenue, in an easterly direction, through to Casey Drive, where the local Primary School was located. Children regularly rode their pushbikes, rollerbladed and skateboarded down the pathway, often proceeding onto and across McKell Street at speed, without stopping and looking for cars. Prior to the accident there had been many near misses. On many occasions children on bikes and the like had swerved to miss cars, and cars had swerved to avoid colliding with children. 6. Mr Myers received head injuries in the accident and has no recollection of it. There was, however, an eyewitness, Mrs Thomson, who lived in No 9 McKell Avenue, a house on the western side of McKell Street adjacent to the pathway, who was looking out of her bedroom window at the time, while on the phone to her mother. She saw young Ben riding down the pathway on his bike. He went straight out onto the road without stopping. There was a loud screech and Ben was struck by a ute speeding along McKell Avenue. Ben flew up into the air and fell to the ground outside No 10 on the other side of McKell Avenue. The ute came to a halt further up the street, on her side, outside No 5. She called an ambulance and then went out to Ben's aid. 7. Mrs Thomson has been living there since about 1990, so that at the date of the accident she had lived there for some 5 years, and has a good knowledge of the history of the laneway. Originally three iron posts were situated across the laneway about two car-lengths back from the "mouth", that is the point at which the path emerges onto the nature strip at McKell Avenue from between the houses. It was submitted that these posts had been positioned not so much to prevent cyclists from using the path, as to prevent cars using the laneway as a means of access to Isaac Close. But there is no evidence as to their purpose and I draw no inference about that. It can be assumed, however, that these posts were ineffective to slow down cyclists coming down the path, as children used to "tear up and down the path all day". It is clear that the Council knew that cyclists and others used the path, as there used to be a sign at the top at Isaac Close, which said something to the effect of "No cycling, roller-blading or skateboarding". 8. Sometime in 1991 someone drove a truck up the laneway and knocked the iron posts out. They were left there for some time, leaning up against a fence, with their concrete footings still intact. The holes were not filled in, and Mrs Thomson filled them in with grass clippings. She often mowed the grass around the path because Council only came to clean up about once a year. Eventually the posts were taken away, but not replaced. Some time later, in 1992 or 1993, Council workmen came in a truck and, to enable access down the laneway to install a light, they removed the sign on the telegraph pole at the top of the pathway, and never put it back. 9. About a year after the sign was removed, Mrs Thomson rang the Council to ask that it be replaced. She did not relate the precise terms of her conversation with the Council, but said she was frustrated by the noise, such that at times she couldn't hear her television, and "terrified someone was going to get killed". I infer that she complained to the Council not just about the noise, but also about the danger. Mrs Thomson believed that with the sign back in position she would at least be able to say something to the children not to ride or skateboard down the path. The Council officer to whom she spoke told her "We will look into it". But nothing happened, at least not until after Ben's accident. 10. It was not until some 2 to 3 years later that anything was done, when 3 galvanised pipe hurdles were installed at the bottom end of the pathway near McKell Avenue, at a point some 16-17 metres back from the "mouth" of the path and some 19-20 metres from the kerb (see Table on page 9 of Ex A). These hurdles are 900mm high, in the shape of a soccer goal. One of the hurdles was installed across the concrete path itself and the other two 800mm further west, down the path, at the sides of the pathway across the grass between the path and the adjoining fences. It was suggested by Mr Clark, the Council's expert, that these hurdles were constructed before or as part of the laying of the path. His reasoning is flawed. None of the hurdle uprights was in the path itself, but were set in concrete on either side of it, which I am satisfied was more probably than not laid after the accident, consistent with the evidence of Mrs Thomson and Mrs Driscoll. 11. Whilst these hurdles had the effect of slowing down cyclists and skateboarders, there was still some distance left for them to regather speed before reaching the kerb of McKell Avenue. Some skateboarders still skate under the hurdle across the path itself, and one boy has in fact "coat-hangered" himself when attempting to do so. 12. In November 2006, subsequent to this case having been in the list but not reached, Mrs Thomson observed Council officers inspecting the area. In the meantime a yellow and black "Children Crossing" pictogram has been installed adjacent to the pathway at the side of McKell Street (see Photos 1 and 2 in Ex A). 13. Another resident, Mrs Driscoll, who lived near the path on the eastern side of McKell Avenue, confirmed the dangerous nature of the path. A mother of 4 children who used to ride their bikes in the area at the time of Ben's accident, she was worried that it might have been one of her children. She corroborated the evidence of Mrs Thomson as to the regular use of the path by children on bikes and skateboards, who frequently went straight across McKell Avenue without stopping, and gave evidence of many near misses and of cars and bikes swerving to avoid each other in McKell Avenue. She confirmed the history of the original posts being knocked down, before Ben's accident, and of the erection, subsequent to the accident, of the metal hurdles. These new barriers "slowed the kids down a bit, but not completely". She also confirmed that the "Children Crossing" pictogram went up after the accident, although she thought it was installed about the same time as the hurdles. 14. The evidence establishes that the pathway from Isaac Close through to Casey Drive was constantly used by children on bikes, skateboards and the like. It was a means of easy access to the local Primary School and the local shops, and by reason of its configuration, layout and slope, it was a popular attraction for those types of activities. Unfortunately, McKell Street was situated in the middle.
Was the Council's response to the risk reasonable? 15. It was not disputed that the Council was responsible, as the relevant road authority, for the laneway and path, and counsel for the Council conceded the foreseeability of children using the path for bike riding and the like. It was submitted, however, that the response of Council to the risk was reasonable, because the standard of care required must be judged by reference to the purpose and use for which the path was intended, and this path was not intended or designed for use by cyclists, notwithstanding it was foreseeable that cyclists would in fact use it. 16. The Council contended, therefore, that the duty on it was only that owed to pedestrians exercising reasonable care for their own safety. The following passage in Brodie v Singleton Shire Council [2001] HCA 29 at [163] was cited in support of this proposition:
"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. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v The State of South Australia), or the surrounding area (as in Buckle, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a "trap" or, as Jordan CJ put it, "of a kind calling for some protection or warning". In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises "is generally entitled to assume that most entrants will take reasonable care for their own safety". Each case will, of course, turn on its own facts. " 17. It was the Council's case that the duty owed by it did not extend to protect pedestrians and cyclists who failed to exercise reasonable care for their own safety. Cyclists who rode across a road without stopping or looking failed to exercise reasonable care for their own safety. That Master Myers was only 5 did not raise the standard of care required of the Council, but pointed to the failure of supervision by his parents or those responsible for him. Thus, it was not foreseeable that 5-year-olds would bicycle down the path unsupervised. Reasonable care in the context of this case involved an expectation that children would be supervised by an adult capable of perceiving dangers to those children: David Jones (Canberra) Pty Ltd v Stone [1970] 123 CLR 185 at 193, 196 and 201. The danger posed by this pathway was obvious to a parent or guardian supervising a young child, and not one from which the Council was expected to protect an unsupervised child. If it was reasonably foreseeable that children would cycle on the path, it was also foreseeable that they were either old enough or competent enough to do so safely, or that they would be supervised by an adult. 18. In the circumstances, the Council argued, its response to the risk was adequate and reasonable, and that it was not required to do anything more to alleviate the risk. 19. In my view, however, the response of the Council to the risk of injury from motor vehicles to children crossing McKell Avenue from this pathway was inadequate and unreasonable having regard to the magnitude of the danger, the degree of probability of an accident, and the potential seriousness of the consequences, when balanced against the minimal expense and inconvenience of appropriate alleviating action. 20. It was common practice for children to ride down the path and continue on over McKell Avenue without stopping or looking. Although there had not previously been any actual collisions, there were many instances of near misses. It was only a matter of time before there was an accident, and this was reasonably foreseeable: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [66]. It was not just 5 year olds who did this, but children of all ages, and as counsel submitted, it is reasonable to infer that younger children copied the older children. That young children, even 5 year olds, might be left unaccompanied and unsupervised by adults in riding down this path to Casey Drive was, in my view, reasonably foreseeable. The path was ideal for these activities, with its slope and the absence of any obstructions, with the concrete extending right up to the kerb. It was even constructed so as to slope down to the street gutter, such that there was no drop or bump in negotiating the transition from nature strip to road: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [64]. 21. It may also be inferred that the Council was aware of the danger posed by the path. So much is evident from the phone call made by Mrs Thomson, in which an officer of the Council told her it would "look into it", and from the sign that was installed in Isaac Close at the top of the path: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [70]. A competent council conducting a regular, even annual, risk management appraisal of the streets under its control could not fail to observe the danger posed by the configuration of this path in conjunction with McKell Avenue: Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Reports 80-121 at 68,928. 22. That children often act suddenly, impulsively and without thought and sometimes stupidly or illogically, should have been within the contemplation of the Council and was in my view reasonably foreseeable in the circumstances which prevailed and the activities that were occurring in this neighbourhood: Gunning v Fellows (1997) MVR 97 at p 100. 23. I am satisfied that the magnitude of danger was grave and the degree of probability of an accident was high. The potential seriousness of the consequences of an accident was self-evident, involving possible death. For these reasons I find that the Council failed to take any or any reasonable precautions to alleviate the risk of injury to children riding bikes on the path and crossing McKell Avenue.
What practicable precautions were available? 24. The case alleged against the Council in the pleadings included a number of complaints. The first was that the Council failed to replace the three original iron posts that were knocked down in 1991. This allegation was not pressed at the end of the evidence, and in my view correctly so, as it could not be said that those posts would have alleviated the risk of injury involved here. 25. A second complaint was that the Council failed to replace the prohibition sign at the top of the path at the end of Isaac Close. But given that the original sign was ignored I infer that a new sign would probably have been ignored as well: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [75]. 26. A third complaint was that the Council failed to exhibit suitable signs warning motorists of children entering the roadway from the laneway "both on foot and on bicycles". Such a precaution was simple and inexpensive and part of a reasonable response to such a risk: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [56]. The question of whether signs or pictograms of this kind would have alleviated the risk of injury to cyclists is dealt with below in the discussion on causation. 27. The fourth, and in my view the most significant complaint was that the Council failed to take steps to prevent direct access from the pathway to the roadway at speed. A barrier, if constructed closer to the kerb than the hurdles erected after the accident, perhaps in conjunction with a "chicane" or alteration in the direction of the pathway, as suggested in the report of Mr Cubitt (at page 20), was both practicable and likely to reduce the probability of an accident by causing cyclists and the like to slow down or stop before entering onto McKell Avenue. 28. No submissions were advanced for the Council that such precautions would have been inconvenient, impracticable or disproportionately expensive. That this would not be so is evidenced by its installation of the hurdles after Master Myers' accident. Those hurdles, however, were not installed in an ideal location. The Council's submissions on the precautions recommended by Mr Cubitt related to whether they were required at all, or if so, whether they would have avoided the accident. 29. I find that a reasonable response to the risk of injury posed by this pathway in conjunction with its contiguity to and direct interconnection with McKell Avenue included the erection of barriers, the alteration of the direction of the pathway to install chicanes adjacent to the kerb, and the erection of pictograms to alert motorists to the pathway and the presence of pedestrian and cyclists emerging from it to cross the road at that point.
Causation 30. It was submitted for the Council that such precautions would not have been effective to prevent this accident. As to pictograms, it said that there was no evidence that drivers would have been caused to slow down or drive more carefully, and that there was insufficient evidence as to how Master Myers came to be hit by the utility to enable any relevant inferences to be drawn. The evidence was, however, that the utility was speeding. I think I may take judicial notice of the fact that signs do alert motorists driving in a reasonable manner to the presence of increased risk: Rowes Business Service Pty Limited v Cowan [1999] NSWCA 268 at [37]. 31. As to barriers, it was said that their only effect would be to slow cyclists down, and there was insufficient evidence, such as the speed at which Master Myers was travelling, whether he was in control of his bike, or the like, to conclude the accident would have been avoided if there had been barriers in place. 32. Although a plaintiff is not relieved of the necessity of offering some evidence to establish causation, in appropriate circumstances "slight evidence" may be enough, unless explained away by the defendant: Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at 35] - [36]. I consider that principle has appropriate application to the present facts. 33. The evidence of the lay witnesses is that even the existing hurdles, installed as they were a considerable way back from the kerb, have operated to slow cyclists down. The evidence of Mr Cubitt, the expert, is that the precautions he recommended would have "significantly reduced" the probability of the accident occurring. Similarly, in my view, the erection of pictograms in McKell Avenue would also have had an ameliorating impact on this risk of injury. 34. In particular, I am satisfied that the installation of a barrier at or near the kerb of McKell Avenue at the point where the path emerged onto it would have had the effect of alleviating the risk of injury to children using the pathway, either as pedestrians or cyclists. The installation of a chicane would have increased the alleviating effect. Such precautions would have prevented children travelling directly down the path onto the road without stopping and looking, or at worst would have slowed them down to a point where an accident was less likely.
Liability 35. I find, therefore, that the Council was negligent and in breach of its duty of care to the plaintiff in that it failed to take reasonable precautions to protect him from foreseeable injury: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [69].
Damages 36. I turn to consider the damages to which Mr Myers is entitled. He is now 17, in Year 11 at school. He seeks damages firstly for past out-of-pocket expenses. The parties were able to agree on the quantification of past out-of-pocket expenses paid on his behalf at $1,693.00. Next he claims for future out-of-pocket expenses. This claim was limited to occasional medication, in an amount of $1,000.00 and was not contentious. In my view the claim is reasonable and I allow it. He also claims for a diminution of his earning capacity in the future, and for non-economic loss. These claims were contentious and I need to consider them in more detail. 37. As a result of the accident he suffered quite severe injuries, requiring a complicated and protracted recovery. Although ultimately he has progressed to a point where he is living a relatively normal life, he is left with some significant permanent disabilities and problems. 38. His main injuries consisted of a severe head injury, from which he has recovered, without any cognitive impairment, and a comminuted fracture of the mid shaft of the tibia with displacement. The fracture was treated by way of a closed reduction performed in two operations on 22 and 25 October 2005 at Gosford Hospital. He underwent a further operation on 29 November 2005 at the Wagga Wagga Base Hospital in an attempt to correct the alignment of the tibia. 39. He has recovered from his leg fracture, and future surgery is not indicated. But he is left with a slight but permanent angulatory mal-alignment of the tibial fracture that affects his balance control and alters the engineering efficiency of his walking. There is an altered pattern of force responsible for odd patterns of pain and dysaesthesia in the right leg. He describes this as a cramping sensation in the right calf which is extremely painful and causes his leg to "lock-up". He most often gets this condition when he surfs and runs. He also has difficulty with squatting, which causes him discomfort around the kneecap. After a day's work on a building site, his leg gets sore. Nevertheless he surfs regularly, plays rugby and is a champion long-distance runner, having won a number of trophies up to zone level. Future economic loss 40. Mr Myers is a likeable young man, who has demonstrated a capacity to adapt to his problems. He makes light of the impact of his injuries and their effect on him. He has overcome a difficult childhood to emerge as a confident and well-intentioned young man. He has set his mind on becoming a carpenter, a trade for which he has demonstrated both aptitude and considerable enthusiasm. 41. The Council submitted that the evidence does not support a claim for any deficiency in Mr Myers' ability to work in the future as a carpenter, so that the claim for future economic loss should not be allowed. 42. In my view, however, Mr Myers has ongoing disabilities that have diminished his future earning capacity, albeit to a minor extent, for which he is entitled to be compensated. In these circumstances, an award by way of a buffer is in my view appropriate, to reflect his continuing problems, which reduce his ability to compete on the open labour market. 43. For all these reasons, I am satisfied that the following assumptions about Mr Myers's future earning capacity accord with his most likely future circumstances, but for his injuries: he would have worked till the age of 65, more probably than not in a trade such as the one he has chosen, but without any affliction or physical disability such as the one he now suffers from. By reason of his accident, however, his capacity to compete for work and his ability to perform work of a physical nature has been diminished having regard to these disabilities. These will impact negatively on his ability to perform all the tasks involved in building work, and his capacity for sustained labour over long periods of work without tiring and experiencing some occasional pain and cramping. Whilst these are not major factors they will have some impact on him and will require him to adjust both his practices and routines at work. 44. There are no special circumstances that are to be taken into account, and I find therefore that the damages that would have been awarded are to be adjusted by reference to an 85% possibility that the events concerned might have occurred but for his injuries. 45. I determine the amount of damages for future economic loss, after an adjustment of 85%, in an amount of $25,000.00, inclusive of future superannuation. Such an amount is in my view appropriate to compensate Mr Myers for his future loss of earning capacity. Non-economic loss 46. I come, finally, to the assessment of damages for non-economic loss. 47. The Council submitted that the severity of Mr Myers' non-economic loss as a proportion of a most extreme case was insufficient to satisfy the statutory 15% threshold. 48. In my view, however, if a balanced assessment of his ongoing disabilities is undertaken, not only does the severity of his non-economic loss satisfy the threshold, but exceeds it. I take into account the permanent nature of the rotatory mal-alignment of his tibia and its permanent impact on his gait. I take into account the cramping he experiences on a regular basis and the effect of the right leg problems on his confidence when utilising it in strenuous activity. These are problems that he will experience for the rest of his life, and his young age is a significant factor in weighing their impact. There is also the scarring on his leg, which although minor, is noticeable. Considerable weight must also be placed on his past problems and the impact of his recuperation on his life as a child. These are not insignificant considerations in relation to a young boy in his teens. The inability to engage with his peers in normal school activities, such as football, cannot have been easy and must have adversely impacted on his general enjoyment of life. 49. In my assessment, an appropriate award of damages for non-economic loss should be in the order 15% to 20% of a most extreme case. In my view he deserves an assessment above the mid-point of that range to reflect his positive attitude and non-complaining nature, and the hard work he has done and continues to do to in attempting to minimise the impact on him of his disabilities. 50. For all these reasons, I determine that the severity of his non-economic loss as a proportion of a most extreme case at 18%. That produces a statutory amount of $10,500.00: s 16(3) of the Civil Liability Act 2002. 51. I find, therefore, that Mr Myers's non-economic loss should be assessed at $10,500.00. Total damages 52. The assessment of total damages is, therefore, as set out in Table A:
Head of damage Amount Past out of pocket expenses $ 1,693.00 Future out of pocket expenses $ 1,000.00 Future economic loss $25,000.00 Non-economic loss (general damages) $10,500.00 Total damages $38,193.00
Disposition 53. For these reasons I enter a verdict for the plaintiff for $38,193.00. 54. I direct the entry of judgment accordingly. 55. Mr Myers is still a minor. The amount of the judgment is to be paid to the Public Trustee under s 77(3)(a) of the Civil Procedure Act 2005 to be held on trust on his behalf. 56. I order the defendant to pay the plaintiff's costs, on the ordinary basis up to 20 November 2006 and thereafter on an indemnity basis, except that each party is to bear their own costs of the February 2007 sittings. 57. The exhibits are to remain in court for 28 days, after which period they may be returned to the parties.
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Myers
Wyong Shire Council
CITATION: Myers v Wyong Shire Council [2007] NSWDC 194
Brodie v Singleton Shire Council [2001] HCA 29 David Jones (Canberra) Pty Ltd v Stone [1970] 123 CLR 185 at 193, 196 and 201 CASES CITED: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [56], [64], [66], [[69], 70] and [75] Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Reports 80-121 at 68,928 Rowes Business Service Pty Limited v Cowan [1999] NSWCA 268 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at 35] - [36]