Pledge v Roads and Traffic Authority [2004] HCA 13;

Pledge v Roads and Traffic Authority [2004] HCA 13; - HCA 2004 case summary — Zoe

[20]

For the reasons given by Callinan and Heydon JJ, the Court of Appeal erred in these three respects. It follows that these appeals must be allowed and the matters remitted to the Court of Appeal to re-apportion liability between the three defendants and to determine the issues not dealt with by the Court of Appeal in the appeal to that Court.
KIRBY J. I agree, for the reasons given by Callinan and Heydon JJ, that error has been shown on the part of the Court of Appeal of New South Wales in exculpating the Roads and Traffic Authority of New South Wales and the Blue Mountains Council from responsibility for the damage suffered by the plaintiff. I also agree with the additional reasons of Hayne J and his analysis of the issues raised in these appeals.
It follows that I agree that the appeals must be allowed with costs. The proceedings must be remitted to the Court of Appeal to determine the outstanding issues and to reapportion liability between the three defendants in the light of the conclusions of the Court of Appeal with which this Court has agreed. These are the lack of causative negligence in (1) the absence of the propounded traffic sign; and (2) the provision of parking bays at an angle of 90 degrees to the service road.
The orders proposed by Callinan and Heydon JJ should be made.
HAYNE J. I agree with Callinan and Heydon JJ that the appeals should be allowed with costs and the matters remitted to the Court of Appeal. I agree generally with their Honours' reasons. I add something on my own account, first, in order to amplify what is said about the issues of causation that arise and, secondly, to say something more about what issues will have to be dealt with when the matters are remitted to the Court of Appeal.
As is so often the case when a motor accident is examined closely, there were many features of the history of the event in which Nadia Ryan was struck by the vehicle driven by Mr Pledge which may be thought to have contributed to its happening. Neither the injured pedestrian, Nadia, nor the driver of the vehicle that struck her, Mr Pledge, saw the other until too late. The father of the injured pedestrian did not see the vehicle that struck her until too late. The driver's opportunity to see pedestrians, and the pedestrians' opportunity to see approaching traffic, was reduced by the foliage on the median strip which divided the highway from the service lane. The pedestrians (father and daughter) did not take enough care to look properly for oncoming vehicles. The driver's attention was distracted by the consequences of a vehicle coming out of the parking bays at the side of the service road. There were no signs warning drivers of pedestrians, or requiring, or suggesting, a reduction in speed. The driver was driving within the speed limit but at a speed which the trial judge found to be faster than was reasonable in all the circumstances.
Many of these factors were under the control of either the pedestrians, or the driver. But not all were. The state of the foliage on the median strip had been brought about by either or both of the Roads and Traffic Authority of New South Wales ("the RTA") or the Blue Mountains Council ("the Council"). (Whether it was the RTA or the Council which was, or both which were, responsible for the state of the foliage will have to be determined on remitter of the matter to the Court of Appeal. So too will any question of apportionment of that responsibility.) It was the Council which designed and permitted the use of off‑road parking, at 90 degrees to the direction of travel, in bays beside the service road. It was the Council which would have provided warning signs. Why then should there be a distinction drawn between the legal significance which is attached to the presence of the foliage and the significance attached to either the off‑street parking or the absence of a warning sign?
The distinction is not to be found by attempting to identify the cause of the event. Examination will usually reveal that the event came about as the result of a complex mixture of acts or omissions. It may be right to say of each of those acts or omissions that, but for its happening, the accident would not have happened as it did. It would be wrong, however, to argue from that observation to a conclusion that one or other of those acts or omissions (for example, the driver's failure to keep a proper lookout) is to be given special significance. Equally, it would be wrong to argue from the identification of every act or omission which played a role in the accident happening as it did to the conclusion that legal responsibility attaches to all of those responsible for every one of those acts or omissions. As Windeyer J said in Faulkner v Keffalinos[1], "lawyers must eschew this kind of 'but for' or sine qua non reasoning about cause and consequence"[2].
The questions that are relevant to legal responsibility are first, whether, as a matter of history, the particular acts or omissions under consideration (here the acts or omissions which led to the presence of the foliage, and the parking bays, and the absence of warning signs) did have a role in the happening of the accident. It is necessary then to examine the role that is identified by reference to the purpose of the inquiry - the attribution of legal responsibility[3]. It is at this second level of inquiry that it may be necessary to ask whether, for some policy reason, the person responsible for that circumstance should nevertheless be held not liable[4]. But that kind of policy inquiry apart, it is necessary to identify the nature of the role which the conduct in question played in bringing about the damage suffered.
What role did the foliage, the parking bays, and the absence of signs have in the happening of this accident? It is convenient to deal first with the parking bays.
To say that the driver was distracted by the vehicle coming out of the parking bays and the consequent reaction of the oncoming vehicle, is no more than a particular and positive statement of the negative proposition that he was not keeping a proper lookout. What attracted his attention was, as the Court of Appeal said, an event of an otherwise unremarkable kind, namely, the entry of one vehicle on to the carriageway from a point outside the bounds of that carriageway and the reaction of another vehicle into the path of which the first vehicle was moving. It was not suggested that the driver of either of those other vehicles caused or contributed to the happening of the accident. Rather, the trial judge found that the authority which had permitted cars to be put in the position from which the first vehicle had come was to some extent responsible for the accident.
No doubt the positioning of the parking bays and their use on the day of the accident were events which form a part of the history which led to Nadia Ryan being struck by the vehicle which Mr Pledge was driving. But did the presence or design of the bays play a role which, in the context of an inquiry about negligence, can properly be described as causative? If the provision or the design of the parking bays (as distinct from driving in or out of one of them in a particular way, or at a particular point in the traffic flow) played any role in the happening of this accident it was so slight as properly to be discarded from consideration in assessing legal responsibility. There are at least two related reasons why that is so. First, the danger created by the presence of the parking bays was at all times evident. It was evident because any danger lay not in the fact that cars parked off the carriageway, it lay in the movement of cars into and out of the parking bays. And that was obvious. The bays stood at the side of a sufficiently long stretch of straight road for the view of vehicles entering or leaving them to be uninterrupted for a long distance. Secondly, what distracted the attention of Mr Pledge was, as I have said, the movement of the vehicle out of a parking bay and the reaction of another vehicle coming, past the emerging vehicle, towards Mr Pledge. All that the design and placement of parking bays did was provide the opportunity for this combination of events. In the circumstances of this case, that should not be held to have been a cause of the accident in which Nadia was injured.
The issue about the parking bays may be contrasted with the foliage on the median strip. The foliage was as obvious as were the parking bays. But what was not obvious was that pedestrians could and did cross the median strip at an otherwise unmarked point in the strip. And as they did so, they were hidden from the view of drivers approaching that point, and cars were hidden from the pedestrians' view. It was the presence of the foliage (in its then state) which hid pedestrian from driver, and vehicle from pedestrian.
The role which a particular act or omission played in the occurrence of an event can often be identified by asking what would have happened if the act or omission had not occurred. This kind of counterfactual inquiry may not always be easy. In this case, asking what would have happened if the foliage had been trimmed or cleared from the vicinity of the edge of the median strip led the Court of Appeal into attempting to calculate the time for which the pedestrians would have been visible to Mr Pledge. There were too many uncertainties in the evidence for the Court to make a calculation of that kind. Further, the conclusion drawn from the calculation (that Mr Pledge still would not have seen the pedestrians until too late) depended upon assuming that Mr Pledge's field of vision was very narrow, and directed to only one part of the roadway ahead. But vision and awareness of colour and movement are far less precise than the assumption that was made.
It was well open to the trial judge to conclude that, had the foliage been less, Mr Pledge's attention would have been attracted to the pedestrians and the accident avoided or the impact lessened.
The absence of a sign warning of the possibility of pedestrians crossing, or a sign requiring or suggesting a speed slower than the generally applicable speed limit on roads like the service road was dealt with by the trial judge very shortly and by way of conclusion rather than articulation of reasons. Evidence was given, at trial, that a sign reading "local traffic only drive slowly" might have been erected in the area. Such signs were in use at the time and were usually accompanied by a speed restriction sign requiring a speed less than 60 kmh. But the trial judge made no clear finding that the Council had been negligent in failing to provide either the warning sign or a speed restriction sign. The trial judge said only that he was satisfied that there was "a need of warning signs or a notice limiting the speed of vehicles (or directing them to proceed slowly) etc" (emphasis added). This "need" was treated by the trial judge as a corollary of the likelihood of pedestrians crossing where the foliage was too dense and 90 degree parking bays were inappropriate. No doubt this treatment of the subject of warning signs owed much to the way the trial proceeded. At trial the chief focus of debate was upon three issues: first, the lookout kept by the driver; secondly, the significance of and responsibility for the state of the foliage on the median strip; and, thirdly, the provision of parking bays at 90 degrees to the direction of travel on the carriageway. These were the only subjects explored in the cross‑examination of Mr Pledge, the driver. The subject of warning signs was not raised with him in the course of his evidence.
In the Court of Appeal, the absence of signs was understood to present two issues: one about breach of duty and the other about causation. Ipp AJA concluded that it was "questionable" whether the Council was duty bound to have erected a sign of the kind suggested but that "there were insufficient grounds to hold that a sign of the kind postulated would have caused [the driver] to drive in any different way". I, too, would very much doubt that not to erect a sign of the kind suggested was a breach of any duty owed by the Council to the injured pedestrian[5]. But whether or not that is so, there was no evidence that the presence of a warning sign would have affected the way in which the driver drove on this day. There was, therefore, no basis in the evidence for concluding that the absence of a sign was a cause of the accident. And there was, in any event, no finding that the Council was negligent in failing to provide signs of the kind discussed.
These conclusions do not dispose of all the issues that were raised in the proceedings in the Court of Appeal. As between the Council and RTA there remains undecided in this Court what role each played in designing or maintaining the foliage on the median strip. What has not been determined, therefore, is what responsibility each had for the state of the foliage at the time of the accident. That will be a matter for the Court of Appeal. It follows that whether the amount of any damages which the Council may otherwise be liable to pay is affected by Pt 6 of the Motor Accidents Act 1988 (NSW) is a question for the Court of Appeal. It also follows that apportionment of responsibility between the parties found to have been negligent is a matter which should be determined by the Court of Appeal. Finally, Mr Pledge's cross‑appeal to that Court remains undecided.
CALLINAN AND HEYDON JJ. The question in this appeal is whether the Court of Appeal of New South Wales was right to disturb an apportionment of negligence between defendants made by a trial judge who had the benefit of a view of the locality in which a motor vehicle accident occurred.

[21]

The Great Western Highway ("the Highway") passes through the town of Blaxland in New South Wales. It consists of a service road, about 7.4 metres wide, a fairly densely planted nature strip about 3.4 metres wide bisected by an almost continuous post and rail fence, two traffic lanes for Sydney bound traffic and two traffic lanes for Katoomba bound traffic. Coughlan Road forms a T‑junction with the Highway on the side of the Katoomba bound lanes. On the side of the Sydney bound lanes, between them and the service road, was a well trodden path across the nature strip through a gap in the fence. It was that path that Nadia Ryan ("the plaintiff") followed shortly before she was struck by a vehicle driven by the appellant, Mr Pledge. It was frequently used by other pedestrians to cross the service road. It was also located within comfortable walking distance of a marked pedestrian crossing on the Highway controlled by traffic lights. Off the service road was a car park which ran from a point level with the marked crossing and the T-junction on which parking at an angle of 90 degrees to the Highway was the practice. One of the purposes of the dense planting on the nature strip was to shield passing vehicles from the glare of headlights at night.
The provision of the service road and nature strip was part of a scheme for the widening and improvement of the Highway, and the design of the service road and nature strip were all the work of the Roads and Traffic Authority of New South Wales ("the RTA"). The Blue Mountains Council ("the Council") was responsible for the maintenance of the nature strip. It had also designed the car park beside the service road.
During the afternoon of 9 July 1994 the plaintiff, who was then nine years old, her sister and their father, Mr Ryan, crossed from the Katoomba bound lanes of the Highway and reached the nature strip. They passed through the post and rail fence and paused momentarily. Mr Ryan said that he thought that they had stopped about 18 inches to two feet from the kerb of the service road.
It was then that Mr Ryan apparently released the plaintiff's hand. Mr Pledge was driving his vehicle in a northerly direction, towards Katoomba. His view of the family was partially obscured by vegetation. Mr Ryan's vision was also reduced. The plaintiff moved forward one or two steps. She was struck by Mr Pledge's vehicle. Mr Ryan had tried to grasp the plaintiff's hand immediately before the impact but missed it by about a foot. At this stage the plaintiff was the only one of the family who was on the road surface.
At the time of the accident another vehicle was reversing at an angle of 90 degrees from the car park in front of a hardware store.

[52]

Mr Pledge seeks in this Court the restoration of the judgment of the primary judge. His submissions focused upon the substitution by the Court of Appeal of its opinion as to his visibility of the locale for that of the trial judge. He emphasized that the trial judge actually accepted the evidence of several witnesses that in fact a driver in his situation, and persons in that of the plaintiff's family would have had their vision obscured.
The plaintiff's father could only see Mr Pledge's vehicle "through some shrubbery". It was very difficult for pedestrians in his position, and for drivers in Mr Pledge's situation to see each other because of the state of the vegetation. The plaintiff's father was a tall man. The plaintiff was on his left and would have had even less opportunity to see an approaching vehicle.
Mr Pledge's evidence which was for the most part accepted by the primary judge, was that the plants and shrubbery on the nature strip were "very full ... very bushy hanging over the kerb maybe 300 or 400 mill[imetres]": he did not see the plaintiff before the moment of impact; his only explanation for failing to see the plaintiff and her family was the foliage. And it was in the light of that evidence that the trial judge found that the foliage significantly restricted his vision.
Reference should also be made to the evidence of Constable Mills, the weight of which the Court of Appeal questioned for want of a reliable or identifiable source. It was not however directly challenged in cross-examination or contradicted by other evidence and it largely coincided with Constable Schneiders' evidence that visibility each way was poor. Their evidence was not weakened in cross-examination.
It followed, Mr Pledge submitted, that in circumstances in which the trial judge had accepted credible, indeed substantially unchallenged evidence that the foliage in fact affected vision on the day, the Court of Appeal erred in engaging in its own analysis, based particularly on photographs, and culminating in a conclusion contrary to that of the trial judge.
Mr Pledge made similar submissions with respect to the reversal by Ipp AJA of the trial judge's findings of negligence on the part of the Council and the RTA in respect of the location of the car park beside a service road of only about 7.4 metres in width, and the absence of a warning sign.
The primary judge's view, he submitted, as to the design of the parking bays was also open: it involved the acceptance of oral evidence of an expert, Mr Wingrove. His Honour specifically found that a potential hazard was created, and that the consequences of it manifested themselves on the day. That a potential hazard may be "of a kind that occurs frequently in everyday life" and may have "to be coped with by careful driving", does not mean that it may not be one of a number of causes of an accident. The primary judge's view of the desirability of a sign was based on the presence of several potential hazards, including the density and closeness to the kerb of the foliage on the nature strip, and the location of the parking bays, as well as the evidence of the expert, Mr Wingrove. Accordingly, it was submitted, there was no reason to set it aside.

[67]

There is no doubt that the Court of Appeal in this case strove to carry out its statutory appellate duty in accordance with the statements of principle that we have quoted. In our opinion it succeeded in doing so in discarding, as causative factors, the absence of any traffic sign, and the provision of parking bays at an angle of 90 degrees to the service road. The reasons for this are comprehensively stated by Ipp AJA. In addition, the proximity of parking bays to a service road is in no way remarkable. A service road is of quite a different character from an open highway. Motorists should proceed with caution along such a road because it necessarily will be used by motorists and their passengers proceeding to and from the establishments which it is designed to service.
We are unable to reach the same conclusion however with respect to the rejection by the Court of Appeal, of the nature, density and location of the vegetation on the nature strip as a causative factor of the collision. It cannot, in our opinion, be doubted that it was a contributing cause. It obscured not only the visibility of Mr Pledge, but also the visibility of the plaintiff and her father. Its presence inevitably brought the plaintiff close to the roadway before she could obtain any useful view of passing traffic. Similarly, its presence produced the same consequence for Mr Pledge with respect to any opportunity that he might have had to see the plaintiff. Its presence would also suggest to any motorist proceeding as Mr Pledge was, that any pedestrian would need to be, and would be, cautious in proceeding through and from it on to the roadway. It is no answer to say that Mr Pledge did not in any event see the plaintiff before the impact and that therefore the presence of the foliage was of no significance. The eye may be attracted by a shape, or a movement, or contrasting colour. Mr Pledge would have had a greater opportunity to catch a glimpse of these phenomena had the foliage been less dense. The denial of that opportunity, by reason of an obstruction in the form of the dense foliage, probably contributed to this accident. The denial of an opportunity, by the presence of an obstruction such as dense foliage, to catch a glimpse of these can and must necessarily have contributed, as the trial judge found, to this accident.
In our opinion Mr Pledge has successfully demonstrated that the Court of Appeal fell into error in exculpating the RTA and the Council. The errors were threefold.
First, their Honours had no sufficient basis for preferring what they thought the photographs showed to the evidence accepted by the trial judge and coming from several and opposed sources, namely the plaintiff's father, Mr Pledge, two police officers and an expert, Mr Wingrove. The circumstances of the accident themselves point strongly to that error.
Secondly, their Honours' reliance on the calculations that Ipp AJA made was unjustified. They depended on too many imponderables which were really little more than matters of speculation: estimates based on the plaintiff's father's evidence as to how long the plaintiff paused before she moved, and how long it took her to walk to the point of impact; that the appropriate extent of clearing of foliage should be one metre only, as indicated by the non-binding guidelines; Mr Pledge's estimated speed; the distance of his vehicle from the plaintiff as she stood on the nature strip before leaving it; and the effectiveness of Mr Pledge's attempts to decelerate[19]. It is not irrelevant that the calculations in question were not sought to be made during the trial by any party where the assumptions upon which they were based could have been fully tested and explored.
The third error was the failure of the Court of Appeal to have sufficient regard to the utility of the trial judge's experiences in inspecting the site of the accident and driving along the road towards the accident site, particularly the enhanced utility accorded to it by s 54 of the Evidence Act. Abalos v Australian Postal Commission[20], a case relied on by Mr Pledge, and which affirmed the special position of the trial judge, was a case in which the trial judge had enjoyed an analogous advantage, of an in-court demonstration. Even before the enactment of the Evidence Act, appeals courts customarily accorded significance to a demonstration or view at first instance. It was not accorded the weight that it deserved here. It is also relevant to the first error that has been identified. It must have supplied to the trial judge the valuable third dimension that the photographs necessarily lacked, and which formed the basis for much of the intermediate court's exculpation of the RTA and the Council.
We would allow the appeals. But that does not mean that the trial judge's apportionment should necessarily stand. His Honour does seem to have had regard to the absence of a sign, and the provision of angle parking as negligent, and causative factors. Because in our opinion they were not, re-apportionment of negligence as between Mr Pledge, the RTA and the Council should now be made. Other issues arose before the Court of Appeal. The identification of the issues that remain to be determined and their resolution should be left to the Court of Appeal. As the Court of Appeal will need to decide these in any event, and because some of them relate at least to the respective obligations and liabilities of the RTA and the Council inter se, it is better that the Court of Appeal undertake any re-apportionment of liability rather than this Court.
Each appeal should be allowed with costs. The judgment of the Court of Appeal of the Supreme Court of New South Wales should be set aside. The proceedings should be remitted to the Court of Appeal for reapportionment of liability among Mr Pledge, the RTA and the Council consistently with the decision of this Court and for the determination of the other issues before, and not decided by, the Court of Appeal, including the costs to date in the Court of Appeal having regard to the decision of this Court.

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