ROADS AND TRAFFIC AUTHORITY OF NSW v CHANDLER

CATCHWORDS: APPEAL - appeal by way of rehearing - identification of error on part of primary judge - due weight to conclusions of trial judge - correction of undisclosed error - DAMAGES - future economic loss - most likely future circumstances of plaintiff - Civil Liability Act 2002 s 13 - TORTS - negligence - duty of Roads and Traffic Authority to pedestrian walking on median strip - reasonable road user - relevance of plaintiff's conduct to existence of duty - purpose of median strip - TORTS - negligence - breach of duty - cost of covering duct and similar ducts in New South Wales - likelihood of risk eventuating - seriousness of consequences if risk eventuated - relevance of evidence that risk has not eventuated in past - WORDS & PHRASES - "most likely future circumstances"

LEGISLATION CITED: Civil Liability Act 2002 (NSW), s 13 Supreme Court Act 1970 (NSW), s 75A

Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Edson v Roads & Traffic Authority [2006] NSWCA 68; 65 NSWLR 453 Edwards v Noble (1971) 125 CLR 296 Great Lakes Shire Council v Dederer [2006] NSWCA 101; Aust Torts Rep 81-860 In the Estate of MT Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340 Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; 41 MVR 235 CASES CITED: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353 Panagiotopoulos v Rajendram [2007] NSWCA 265 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 81 ALJR 1773 Romeo v Conservation Commission of the NT [1998] HCA 5; 192 CLR 431 Skulander v Willoughby City Council [2007] NSWCA 116 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Temora Shire Council v Stein [2004] NSWCA 236; 134 LGERA 407 University of Wollongong v Mitchell [2003] NSWCA 94; Aust Torts Rep 81-708 Warren v Coombes (1979) 142 CLR 531

PARTIES: Roads and Traffic Authority of NSW (Appellant) Juanita Chandler (Respondent)

COUNSEL: P Garling SC/T Barrett (Appellant) I D Roberts (Respondent)

SOLICITORS: Henry Davis York Lawyers (Appellant) Commins Hendriks Solicitors (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40834/06 DC 67/02

MASON P BASTEN JA BELL JA

11 April 2008 ROADS AND TRAFFIC AUTHORITY OF NSW v Juanita CHANDLER Headnote

The plaintiff, Ms Chandler, was driving on the outskirts of Wagga Wagga when her car broke down. The plaintiff began walking down the left hand side of the Sturt Highway towards a service station. After a passing truck came very close to her, she crossed to the median strip. As she was walking along the median strip, she put her foot in a drainage slot running perpendicular to the median strip, causing her to fall and injure her knee. The Road and Traffic Authority ("RTA") was the body having control of the Sturt Highway.

In the District Court, the plaintiff obtained judgment in her favour and was found not to be contributorily negligent. The RTA appealed from that decision in relation to liability, contributory negligence and the assessment of damages.

(i) the nature of the appeal; (ii) whether the RTA owed the plaintiff a duty of care; (iii) whether the RTA breached any duty of care to the plaintiff; (iv) whether there was contributory negligence on the part of the plaintiff; and (v) the assessment of damages

1. If a specific error is identified on a rehearing, the appellate court must determine whether the error warrants a different conclusion. Where no specific error is identified, the court may nevertheless be required to consider the primary facts to determine whether a different result should have been reached because of undisclosed error: [13]. Warren v Coombes (1979) 142 CLR 531, considered.

Edwards v Noble (1971) 125 CLR 296; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, referred to.

2. The RTA owed a duty of reasonable care to all road users. The scope of the duty takes into account the exercise of reasonable care by road users themselves. The question whether that duty is breached involves a close factual assessment of what steps (if any) are reasonably required to address the risk of injury: [2]-[3]. Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 81 ALJR 1773, referred to.

3. The RTA had a duty to take reasonable steps to remove a risk of injury which may arise for a pedestrian taking reasonable care for his or her own safety. The test is better described as referring to a class of reasonable road users, rather than a hypothetical individual: [15]. Burwood Council v Byrnes [2002] NSWCA 343; Sutherland Shire Council v Henshaw [2004] NSWCA 386, considered.

Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 81 ALJR 1773, referred to.

4. There may be cases in which evidence of the plaintiff's conduct is relevant to an assessment of the defendant's duty, because it reveals how a reasonable road user would behave in particular circumstances. However, its relevance is limited and is apt to distract attention from the duty of the road authority: [19].
5. The median strip was not intended as a footway. Its purpose was to separate two lanes of traffic in each direction, as demonstrated by its position in the middle of a four-lane highway, without pedestrian crossings or lights permitting safe access. The RTA had no duty to maintain it in a proper condition for use as a footway at night: [28].

There is a fine line between a conclusion that a defendant owed a plaintiff no duty in particular circumstances and a conclusion that a duty was owed but was not breached because the defendant was not in the circumstances, required in the exercise of reasonable care to take the steps for which the plaintiff contended. The preferred approach may depend on the level of generality at which the duty is identified: [29]. Skulander v Willoughby City Council [2007] NSWCA 116; Panagiotopoulos v Rajendram [2007] NSWCA 265, referred to.

In relation to (iii) (per Basten JA, Mason P and Bell JA agreeing)

In its context, the trial judge's reference to the duty of the appellant "to eliminate the risk of injury" to the plaintiff did not reveal error: [32].

Evidence that a particular risk has apparently not eventuated in the past may give rise to doubt as to whether the supposed risk is significant. Evidence of an extensive accident-free history may demonstrate that the perceived risk gave rise to no reasonable claim on the attention or resources of the RTA: [42]. Romeo v Conservation Commission of the NT [1998] HCA 5; (1998) 192 CLR 431; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 81 ALJR 1773; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; University of Wollongong v Mitchell [2003] NSWCA 94; Great Lakes Shire Council v Dederer [2006] NSWCA 101; Aust Torts Rep ¶81,860; In the Estate of MT Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340, referred to.

Having consideration for the purpose of the drainage duct and median strip, the cost of covering the duct and similar ducts elsewhere in the State, the likelihood of the risk eventuating and the seriousness of the consequences if the risk did eventuate, the plaintiff did not establish that the failure of the RTA to cover the drainage duct was unreasonable. She failed to establish a breach of any duty of care which may have been owed to her by the RTA: [48]. (per Bell JA)

There was no reason to conclude that the risk of a cover dislodging and becoming a projectile was less likely to eventuate than the risk of a pedestrian tripping over the uncovered duct. It is difficult to see how the reasonable response of a road authority to the risk of a pedestrian walking along the median and tripping on the uncovered duct required that it adopt a measure that created two risks, one which may be thought to have been more serious: [69]. 11. The evidence of Mr Dunlop of the incidence of injury to RTA road workers should have been taken into account by the trial judge in determining the response of a reasonable road authority to the risk of a pedestrian tripping on an uncovered duct: [71].

In relation to (iv) (per Basten JA, Mason P and Bell JA agreeing)

12. As the judgment for the plaintiff must be set aside on the basis that there was either no duty of care or breach of duty, the issue of contributory negligence need not be determined: [49].

In relation to (v) (per Basten JA, Bell JA agreeing, Mason P not deciding)

13. Subsection 13(1) of the Civil Liability Act requires consideration to be given to the most likely future circumstances of the plaintiff, but for the injury, and does not significantly affect a general law assessment: [55]. Subsection 13(2) is either addressed to the usual allowance for vicissitudes, or to the kind of calculation required by Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, or both: [56]. The trial judge complied with the requirements of s 13 of the Civil Liability Act: [60]. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; (2004) 41 MVR 235, considered.

McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353, referred to.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40834/06 DC 67/02

MASON P BASTEN JA BELL JA

11 April 2008 ROADS AND TRAFFIC AUTHORITY OF NSW v Juanita CHANDLER Judgment 1 MASON P: I have had the benefit of reading in draft the reasons of Basten JA. 2 On my understanding of the principle in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 and Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42, the appellant owed a duty of reasonable care to all road users. The respondent was such a person. The median strip that she traversed was not designed as a footway but it was accessible to pedestrians who might have reason to cross the highway. 3 The scope of the duty takes into account the exercise of reasonable care by road users themselves (Dederer at [47]). The question whether that duty is breached involves a close factual assessment of what steps (if any) are reasonably required to address the risk of injury. 4 I agree with Basten JA's conclusions as to breach and with the orders he proposes. 5 BASTEN JA: At about 5.30am on 13 February 2000, the car being driven by Ms Chandler ("the plaintiff") broke down on the outskirts of Wagga Wagga in the south of the State. At the time she was travelling north on the Olympic Highway from the Army base at Kapooka, on her way to work in Wagga Wagga. She had turned right, in a westerly direction, at a T-section where the Olympic Highway met the Sturt Highway. She had pulled over on the shoulder of the Sturt Highway and had started walking in a westerly direction towards Wagga Wagga. She intended to make a telephone call to her husband from a service station on the south side of the Sturt Highway. She became nervous walking on the north side of the highway (being the left hand side of the road as she proceeded) when a passing truck came within, she said, a metre of her. She then crossed to a median strip and, noticing what appeared to be a ditch on the north side of the road, proceeded to walk down the median strip for approximately 25-50 metres, before putting her foot in a drainage slot running perpendicular to the median strip, which caused her to fall and injure her knee. 6 The Roads and Traffic Authority ("the RTA") was the relevant body having control of the Sturt Highway, at the time of the accident. It accepted that it was also the successor in title to the body having responsibility for the construction of the highway, including the median strip, which apparently occurred in approximately 1975. 7 The plaintiff was successful in the District Court (McLoughlin DCJ) and obtained a judgment in her favour in an amount of $266,664.69, there being a finding that she was not contributorily negligent. 8 The RTA challenged the judgment below both as to liability, absence of contributory negligence and as to the assessment of damages. The appeal with respect to liability should be upheld and the judgment in favour of the plaintiff set aside. In the light of that conclusion, it is not strictly necessary to address the other questions raised: nevertheless, against the possibility that a different view will be taken elsewhere as to the question of liability, those grounds which challenge the findings with respect to general damages and economic loss will be addressed. Nature of appeal 9 The trial of this matter ran a somewhat chequered course. Although the accident occurred in February 2000, and the proceedings were commenced in May 2002, the hearing did not commence until August 2004. More significantly, although it ran for only six days, it was not completed until 1 September 2006. On 15 December 2006 the trial judge delivered an oral judgment which extended over some 65 pages, 37 of which were concerned with questions of liability. 10 It is clear that the case was heard and determined under somewhat difficult circumstances. Had circumstances been more favourable, his Honour might have structured the judgment so as to avoid a degree of repetition and so as to avoid some infelicities of expression which are said to reveal errors of principle. In these circumstances, it is necessary to read the judgment as a whole and without an eye keenly attuned to the perception of error. However, it is not appropriate to disregard his Honour's reasons. Although this is an appeal by way of rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW), the fact that it is an appeal requires some identification of error on the part of the primary judge. Were it otherwise, the trial would be relegated to the status of a "practice run" or at most an exercise to establish primary facts by way of oral evidence, including findings as to credibility of witnesses. 11 Where there has been no further evidence proffered on appeal and where the law has not changed since the date of the trial, there may be little difference between an appeal "in the strict sense" and an appeal by way of rehearing: see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [12]-[21] (Gleeson CJ, Gaudron and Hayne JJ). So much appears from the joint judgment in Warren v Coombes (1979) 142 CLR 531 at 553 (Gibbs ACJ, Jacobs and Murphy JJ), noting that each of the Court of Appeal (on a rehearing) and the High Court (hearing an appeal in the strict sense) was "obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge". The question raised by Warren v Coombes may be seen as one concerning the nature of an appellate court's obligation to give "due weight to the conclusion reached by the learned trial judge", before deciding whether the court is "unable to agree with it": ibid. 12 As the joint judgment in Warren v Coombes illustrates, a range of descriptions had been used to express the proper approach to an appeal from a civil trial held by a judge without a jury. These views extended across a spectrum which at one end (which was rejected) sought to impose similar restraints to those which apply in the case of a jury verdict and at the other (which the Court accepted) emphasised the propriety and indeed the obligation of the appellate court to act upon its own assessment of the primary facts. The joint judgment clearly did not intend that the appellate court should disregard the findings of the trial judge, but provided limited assistance in explaining what was required in giving "respect and weight" to his or her conclusion. Their Honours quoted with apparent approval Menzies J in Edwards v Noble (1971) 125 CLR 296 at 312-313 stating what their Honours identified as "the traditional view" which included, as a fifth proposition, that "where a court of appeal is satisfied of error on the part of the trial judge it will correct that error, even in cases where, although the reasons for the judgment of the trial judge do not themselves disclose any error, the result satisfies the court of appeal that there was undisclosed error". 13 In a practical sense, the approach of the appellate court does not greatly matter: if a specific error is identified on a rehearing, the appellate court must determine whether the error warrants a different conclusion; but where no specific error is identified, the appellant may nevertheless require the court to consider the primary facts to determine whether a different result should have been reached, because of undisclosed error. (It is not necessary to consider the circumstances in which findings as to primary facts may be challenged.) Liability: duty of care 14 The first ground of challenge pursued by the RTA was that his Honour erred in finding that it owed a duty of care to the plaintiff. Questions of liability arose under the general law: the Civil Liability Act 2002 (NSW) did not apply. 15 His Honour correctly identified the duty of the RTA as being to take reasonable steps to remove a risk of injury which may arise for a pedestrian taking reasonable care for his or her own safety: see Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at [163]. The complaint concerned the application of that test in determining the scope or extent of the duty: Roads and Traffic Authority v Dederer [2007] HCA 42; 81 ALJR 1773 at [46]-[48] (Gummow J). As explained by Bryson JA in Sutherland Shire Council v Henshaw [2004] NSWCA 386 at [84] the test involves reference to "a hypothetical member of a general class of road users". However, it may be better to describe the test as referring to a class of reasonable road users: reference to an individual, even an hypothetical individual, personifies what is in truth an abstract test involving a number of elements. Personification tends to focus attention on the plaintiff, whereas the scope of the inquiry should be broader. For example, where a particular construction or facility is said to be defective or to involve an unreasonable element of risk, it will often be useful to commence by considering the purpose of the construction or facility, whether it is reasonably adapted for its purpose and whether the same purpose might have been achieved in other ways. Whether foreseeable conduct of road users will be judged to be reasonable may depend upon a clear identification of the relevant purpose. 16 Personification has a further risk, which appears to have eventuated in the present case. As Bryson JA explained in Henshaw, the concept of the reasonable road user may arise at different stages in the consideration of a negligence case. Importantly, its role may vary from one stage to another. When considering contributory negligence, the question whether the plaintiff took reasonable care for his or her own safety will invite an assessment of the actual conduct of the plaintiff, as against an objective standard. By contrast, as already noted, when considering the appropriateness of the acts or omissions of the defendant, the question has, in truth, nothing to do with the conduct of the plaintiff. However, the use of uniform terminology in relation to the different stages (being terminology which operates at a high level of abstraction) may lead to a process of reasoning which commences with the conduct of the plaintiff, decides that it was reasonable in the circumstances, and infers from the fact that injury arose that there must have been a breach of duty on the part of the road authority towards the plaintiff, who was, on the findings already made, a reasonable road user. That reasoning is likely to reveal error, being an error which appears to have arisen in the present case, despite the careful reference to authorities stating the correct approach. 17 Amongst the passages referred to by the trial judge was one from the judgment of Sheller JA in Henshaw setting out on two separate occasions (at [7] and [15]) an extract from Handley JA in Burwood Council v Byrnes [2002] NSWCA 343 at [33] to the following effect: "The standard of care is that which is reasonably required to protect pedestrians who are taking reasonable care for their own safety. The care which pedestrians must themselves take enters into the definition of a duty and is not relevant only to contributory negligence." 18 The statement is correct, but may permit the blurring of the separate issues. Thus, having set out the relevant passages from Henshaw, his Honour continued (Judgment, p 12-13): "In the present considerations, I am only dealing with that aspect of the plaintiff's claim. That is, whether she was taking reasonable care for her own safety, whether she did notice the hazard and if not, as to why not and as to how this impedes [impinges?] on any duty of care that may be owed by the defendant, and on the facts of this case as to whether this defendant was liable." 19 There may be cases in which evidence of the plaintiff's conduct is relevant to an assessment of the defendant's duty, because it reveals how a reasonable road user would behave in particular circumstances. Nevertheless, its relevance is limited and it is apt to distract attention from the duty of the road authority, to the conduct of the plaintiff. It appears to have had that effect in the present case, with the result that the existence and scope of the duty were not properly addressed. 20 The objective circumstances of the case were not in dispute. The median strip on which the plaintiff tripped ran continuously from the T-junction with the Olympic Highway west towards Wagga Wagga, to a point (which the plaintiff had not reached when she tripped) where it narrowed to allow a right turn lane into the service station to which she was heading. The length of the median strip was not measured by the experts, although there is reference to a road light which was near the service station and was said to be 65 metres from the point at which the plaintiff fell. The break in the median strip at the entrance to the service station was sufficiently long to allow not only westbound traffic to turn right into the service station, but also to allow eastbound traffic to turn right into a motel on the north side of the road. At some stage before the break in the intersection, the plaintiff must have left the median strip to cross to the south side of the road. The journey on foot would have required the plaintiff to traverse approximately 150 metres of the Sturt Highway; she gave evidence that, before tripping, she walked for approximately 50 metres along the median strip. 21 The roadway on the north side of the highway appears to have been higher than that on the south side; to avoid water pooling in the overtaking lane on the westbound carriageway, two gaps had been created in the median strip for drainage. Approaching the motel and the service station from the east (the direction being taken by the plaintiff) it is apparent from the photographs of the scene that there were no sites or buildings likely to generate pedestrian traffic. Nor was there any indication that any significant number of pedestrians should have been anticipated. There were no formed footpaths on either side of the Sturt Highway to the east of the service station, nor were there any pedestrian crossings or traffic lights. Nor was it the plaintiff's case that any of these facilities should have been present. Rather, it was the plaintiff's case that the occasional pedestrian might be found on that stretch of highway and, in the absence of footpaths, might seek to walk down the median strip which, until it narrowed to allow for a right hand turn lane into the service station, was 2.75 metres wide. 22 The median strip was 150mm high and was constructed of "pebblecrete" of a brownish hue, with white painted concrete edges down each side. At regular intervals there were black strips across the surface caused by expansion joints. In two parts there were gaps, described as "ducts" or "slots" for drainage purposes. The duct in which the plaintiff tripped was 250mm across and 150mm deep. It was no part of the plaintiff's case that the duct was not reasonably visible to a careful pedestrian in daylight hours, but only that it was reasonably visible at night. 23 The area was not entirely dark as there was a street light at the entrance to the service station (approximately 65 metres west of the duct in which the plaintiff fell) and another street light behind her, roughly at the commencement of the slip lane for traffic going east and turning left into the Olympic Highway. The plaintiff gave evidence that she could see the dark lines across the pebblecrete of the median strip caused by the expansion joints. A witness called by the RTA, Dr Gordon Watson, a lighting consultant, gave evidence that, at the same time of day (namely, about one hour before sunrise) he took measurements of illumination and carried out a "visibility appraisal on site at the equivalent time of the accident". Doctor Watson stated in his report: "When approximately 20m from the first drainage duct and with no vehicles in the vicinity, I could visualise the first drainage duct running across the median as a dark band across the median strip." 24 His Honour discounted Dr Watson's observations on a number of bases, including the facts that he had located the duct before walking towards it, that there was grass growing out of the duct at the time of his observation which the plaintiff had not noticed and which his Honour appears to have found not to have been there at the time of the accident, and that Dr Watson had acclimatized his vision to the low ambient light prior to carrying out the exercise. His Honour also referred to and distinguished a description given by Dr Watson of walking along the median strip when there was traffic approaching: the evidence referred to above described the situation "with no vehicles in the vicinity". Otherwise the points of distinction were open to his Honour, but the evidence did establish that there was some lighting in the area, particularly from the streetlight at the corner of the turnoff to the service station. 25 Although reliance was placed by the parties on the visibility (or otherwise) of the drainage duct at night, that would not appear to have been a critical element in the present case. The particular of negligence upon which the plaintiff succeeded at trial was not an absence of adequate lighting, but the failure to place a cover over the duct. It may be accepted for present purposes that the duct was not readily visible to a careful pedestrian at night. Consistently with that view, his Honour held that the plaintiff "did not notice that which was a hazard and did not notice that because it was too dark": Judgment, p 13. Rather, the case turns on whether the RTA owed a duty of care at all to a person walking down the median strip at night. In answering that question, his Honour twice expressed conclusions as to the foreseeability that pedestrians would walk along the median strip (Judgment, p 32): "It may have only been foreseeable that such pedestrian use would be limited but it must also have been foreseeable that such persons could utilise the median strip for the longitudinal pedestrian travel in the hours of darkness to access the shops, or in the case of vehicle breakdown as occurred here, or for parking and alighting the vehicle and walking during a break in travel as this is the main highway to Adelaide, and probably a range of other reasons which are not readily apparent …." 26 In reaching his conclusion as to breach, his Honour stated (p 37): "I am of the view that because of the width of the median strip, the location on the outskirts of Wagga Wagga, the location in relation to motels, service stations, café, parking areas on the grass verges to the left, golf course, the smoothness of median strip and the absence of structured kerbs and gutters and footpaths to either side, that in those circumstances the defendant should have eliminated that risk of injury by covering the ducts …." 27 Accepting the occasional use of the median strip by a pedestrian (probably quite rare by night) there appears to have been some tendency in the last passage to exaggerate the circumstances in which that might occur. To say that the area was located on the outskirts of Wagga Wagga failed to note that any relevant usage had to involve persons coming into Wagga Wagga from an area where there were no facilities or buildings. Further, the reference to particular services tended to obscure the fact that there was one motel and one service station (apparently with a café), opposite each other and at the town-end of the median strip. Thirdly, to refer to "parking areas" on the grass verges suggested that there was some specified area for parking, which there was not, and the reference to the golf course suggested that there might be access to or from the golf course onto the highway, which there was not. 28 The other factors included the width of the median strip, its smoothness, and the absence of guttering and footpaths. These factors, it may be inferred, were seen to create some kind of attraction to a pedestrian seeking to walk along this part of the Sturt Highway: c.f. Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380. However, these factors did not demonstrate that the median strip was intended as a footway: it clearly had no such purpose. Its purpose was to separate two lanes of traffic in each direction, on the outskirts of a major built-up area and on the approach to the T-junction of two highways. As would have been quite apparent to a reasonable pedestrian, its features were dictated by that purpose and not by any intention that it be used as a footpath. Its position in the middle of a four lane highway, without pedestrian crossings or lights permitting safe access, provided the clearest demonstration that it was not a footpath. Accordingly, there should have been no reasonable expectation that it was designed as a footpath or intended for use as such. It follows that the RTA had no duty to maintain it in a proper condition for use as a footway at night. A duty may have arisen to avoid risks which were extraneous to its purpose as a median strip, but it was not suggested that the drainage duct was other than a necessary part of the design and reasonably adapted for its particular purpose. 29 There is, inevitably, a fine line between a conclusion that a defendant owed a plaintiff no duty in particular circumstances and a conclusion that a duty was owed but was not breached because the defendant was not, in the circumstances, required in the exercise of reasonable care to take the steps for which the plaintiff contended. The preferred approach may depend on the level of generality at which the duty is identified: see, eg, Skulander v Willoughby City Council [2007] NSWCA 116 at [87]-[90]; Panagiotopoulos v Rajendram [2007] NSWCA 265 at [12] and cases there referred to. Where an appeal is limited to a question of law, the stage at which error is identified may be important. This is not such a case. It is appropriate, therefore, to consider the alternative approach by considering the challenge to findings as to breach of duty. Breach of duty 30 The RTA raised a number of challenges to his Honour's findings in respect of breach. 31 One complaint related to a statement, contained in the final passage with respect to breach, referring to the duty of the RTA "to eliminate the risk of injury" to the plaintiff. This, the RTA complained, was setting its obligation at too high a level. The plaintiff responded that the language adopted by the trial judge did no more than reflect that of McHugh J in Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 at [25] referred to by Giles JA in Temora Shire Council v Stein [2004] NSWCA 236; 134 LGERA 407 at [42]. 32 The question being addressed by the trial judge in the passages complained of concerned the reasonable steps which should have been taken by the RTA with respect to the identified risk; it assumed the existence of a duty. Where such steps would be limited to a warning, it would be inappropriate and misleading to refer to steps necessary to "eliminate the risk". In the present case, his Honour thought that the preferable solution would have been to place a metal cover over the drainage duct, although that may have created a risk of slipping on the metal if wet. (The alternative solution was a concrete lid.) Nevertheless, a cover could no doubt fairly be said to "eliminate" the risk of tripping in the channel so that, in its context, this language did not reveal error. 33 On the assumption that there was a duty, the RTA also contended that his Honour failed to give proper consideration to a number of factors supporting the conclusion that there was no breach. The first was the likely cost to the RTA of covering this and other similar drainage ducts in median strips around the State and anticipated increases in maintenance costs. A second was the assessment from an engineering perspective of the appropriateness of such covers. A third was the minimal pedestrian activity expected in relation to this median strip. A fourth was the absence of any known history of accidents occurring at this or any similar median strip. 34 In relation to the first matter, Mr Stephen Dunlop, a manager employed by the RTA, gave evidence that it had not been and was not the practice of the RTA to cover drainage ducts in median strips. The median strip in question was constructed some 30 years ago. The plaintiff did not seek to suggest that the construction in the 1970's without covers was unreasonable, in accordance with the standards of the time. Accordingly, it was necessary to take into account the current cost to fit covers to existing drainage ducts across the road network under the control of the RTA. That cost was estimated by Mr Dunlop at $5 million. He also estimated that there would be increased inspection and maintenance costs in respect of covered ducts, which he calculated as $594,000 per annum. 35 His Honour did not accept that the cost was a high as Mr Dunlop estimated, because he discounted the number of ducts for which covers would be required. He did that on the basis that narrow median strips (on metropolitan streets of which there were photographs in the evidence) would not be used for longitudinal pedestrian traffic and hence would not require the covering of ducts: Judgment, pp 15-16. In cross-examination, it was put to Mr Dunlop that only some 10% or 20% of the cost figures would be relevant if the covers were limited to those areas where there was a wide median strip in a country highway without footpaths on either side of the highway: Tcpt, 30/06/06, pp 10-11. Subject to the need to make necessary assessments of the network and presumably the cost involved in that, Mr Dunlop broadly agreed with the proposition put to him. 36 It was open to his Honour to accept the plaintiff's contention that covering drainage ducts should be considered only in areas where the median strip was of sufficient width to invite use by pedestrians, in the absence of formed footpaths on either side of the highway. It was therefore open to his Honour to conclude that the costs involved were significantly lower than those initially proposed by Mr Dunlop. However, it is of concern that his Honour gave diminishing weight in the course of his reasons to the question of costs. Thus, at pp 29-30, he said that covers could have been provided "with little cost and that this maintenance would not add substantially to maintaining such highways"; at p 34 he described the RTA's evidence as showing that "such a slot can be … adequately and inexpensively covered"; at p 35 he described the "question of cost" as "minimal". The RTA challenged these findings as effectively removing any question of cost from the equation, when it was clear that the cost involved was not insignificant. There is some substance to this criticism, but the more substantial challenges flow from the other complaints. 37 In relation to the engineering issues, there was evidence from a Mr Vickery who was a road design draftsman with the RTA with experience and qualifications in road design, including drainage system design over some 38 years. Mr Vickery gave evidence as to the various factors taken into account in road design and in particular identified a number of considerations which militated against the use of covers on drainage ducts in median strips. This evidence was set out by his Honour: Judgment, p 17-19. For reasons which he identified, Mr Vickery expressed the view that "the RTA would not provide a cover to this drainage duct even if the median was being constructed at the present time". The RTA also called evidence from Professor William Yandell, an Associate Professor in the School of Civil Engineering at UNSW. Professor Yandell expressed the view that, for reasons he explained, it was appropriate for the drainage duct on which the plaintiff tripped to be left uncovered. 38 At p 29 his Honour noted a submission on behalf of the RTA that the plaintiff should have addressed the engineering aspects of the traffic facility and demonstrated that the failure to cover the duct was from the point of view of the road construction authority unreasonable. His Honour stated (pp 29-30): "To my mind there is no need to deal with engineering aspects as it is clear from the evidence that covers could have been provided simply and with little cost and that this maintenance would not add substantially to maintaining such highways. Because of the limited number it would not be a significant cost burden on the resources of the State …. I am not satisfied that the engineering aspects must be traversed …." 39 In rejecting Professor Yandell's evidence, he appears to have removed from the factors to be taken into account the minimal pedestrian activity which could be expected in relation to the median strip on which the plaintiff tripped. Similarly, in concluding that it was not necessary for the plaintiff to traverse "the engineering aspects", he appears to have given little or no weight to Mr Vickery's evidence that the use of drainage covers carried its own risks. Thus, although his Honour expressly accepted that the covers should be capable of being removed for cleaning purposes (Judgment, p 35) he made no reference at that point to the evidence of Mr Vickery that removable covers were capable of becoming dislodged and thus not only failing to fulfil their function, but becoming a hazard in themselves. Dislodgment could occur by vehicles mounting the median strip, a circumstance which the RTA uniformly recognised by constructing median strips with mountable edges. 40 In relation to the fourth complaint, there was evidence from Mr Dunlop that he was not aware of any accident of a nature similar to that which befell the plaintiff having occurred on a median strip under the control of the RTA. In dealing with a submission based on the absence of prior accidents his Honour stated (Judgment, p 36): "In relation to this, one is dependent upon (a) the accuracy of the reporter, (b) the accuracy of the recorder, (c) the keeping of records, (d) the severity of injury that may have occurred in earlier accidents, and (e) the location of those reports. Without that information it is impossible to put any weight upon that submission in relation to actual foreseeability." 41 It appears that the reference to "actual foreseeability", included in a discussion as to breach of duty, was relevant to the question whether, assuming a duty were owed, the RTA should have done anything at all. 42 As positive evidence that no such accidents had occurred, the weight to be given to Mr Dunlop's statement may have been limited in the absence of any express evidence of the existence of appropriate files and the searching of such files. On the other hand, the plaintiff did not cross-examine Mr Dunlop about this evidence, nor seek to call evidence suggesting there was a known history of accidents. Rejecting Mr Dunlop's evidence out of hand as having no weight was an error. Evidence that a particular risk has apparently not eventuated in the past may give rise to doubt as to whether the supposed risk is significant: see, eg, University of Wollongong v Mitchell [2003] NSWCA 94; Aust Torts Rep ¶81-708 at [14] (Meagher JA), [34]-[35] (Giles JA); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [5] (Priestley JA). Further, as explained by Handley JA in Great Lakes Shire Council v Dederer [2006] NSWCA 101; Aust Torts Rep ¶81-860 at [63], evidence of an extensive accident-free history may well demonstrate that the perceived risk gave rise to no reasonable claim on the attention or resources of the RTA: see also Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 81 ALJR 1773 at [61] (Gummow J); Romeo v Conservation Commission of the NT [1998] HCA 5; 192 CLR 431 at [132] (Kirby J) and [274] (Callinan J); In the Estate of MT Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340 at [169]-[172] (Ipp JA). 43 Each of these cases is, no doubt, distinguishable: for example, Dederer was concerned with recreational use of a bridge in the control and management of the RTA, which had primary concern for the safety of motorists and pedestrians. The present case involved an RTA facility which failed to provide for pedestrian use. In particular circumstances, there might be a duty to provide for pedestrian use: see, eg, the circumstances described in Edson v Roads & Traffic Authority [2006] NSWCA 68; 65 NSWLR 453, although that was not the particular of negligence relied on in that case. The present case was not one in which it was contended that the RTA had any obligation to provide additional facilities for pedestrians, but rather that it should have made a facility not intended for the use of pedestrians safe for them. 44 If the question of duty is addressed at a higher level of generality than that suggested above, it may be accepted that the RTA owed a duty of care to persons who might seek to walk along the median strip, that being conduct which was reasonably foreseeable. On that approach, it is necessary to ask what should be required of the RTA as a reasonable response to the risk in question. Critical factors in that assessment include:

(a) the purpose of the drainage duct and the purpose of the median strip across which it was placed;

(b) the cost of covering the duct as a matter of practice in that and similar structures elsewhere in the State;

(d) the seriousness of the consequences if the risk did eventuate. 45 Of these factors, only the last provides significant support for a finding of breach of duty. The consequences of tripping are not necessarily serious, but the consequences of tripping on a median strip in close vicinity to traffic on a major highway could involve a remote but real chance of fatal injury. 46 The other three factors all militate against a finding of breach of duty. In relation to (a), it is highly relevant that the drainage duct was specifically adapted to avoid pooling of water on the highway, which would otherwise arise from the damming effect of a raised median strip on the lower side of the traffic lanes. The drainage duct was an appropriate means of achieving that purpose. Thus the risk to a pedestrian was not caused by some unnecessary or ill-adapted design feature, nor through a pothole or other hazard caused by failure to maintain the facility. The use of a cover would tend to increase blockages and would thus impede the functioning of the drainage duct. Further, considered as a separate element in the structure, a removable cover would carry its own additional risks. 47 Factors (b) and (c) should be considered together. The cost of placing grating over this and similar drainage ducts constructed by the RTA was not entirely insignificant. That factor, combined with the absence of any history of the risk in question eventuating suggested it would not be reasonable to expect the RTA to take such a step in all the circumstances. This factor is not based solely upon the evidence of absence of reported incidents; it is also supported by the commonsense conclusion that although the risk is foreseeable, the chance of an accident occurring must be extremely low. 48 An assessment of these various matters leads to the conclusion that the plaintiff did not establish that the failure of the RTA to cover the drainage duct was unreasonable; she therefore failed to establish a breach of any duty of care which may have been owed to her by the RTA. Contributory negligence 49 The challenge raised by the RTA in respect of contributory negligence does not arise in light of the fact that the judgment for the plaintiff must be set aside for the reasons already given. Issues of contributory negligence become hypothetical on that approach and cannot usefully be addressed. Damages 50 In relation to damages, the bases of challenge were first that an excessive amount was awarded for non-economic loss and, secondly, that the award for future economic loss was not made in accordance with s 13 of the Civil Liability Act 2002 (NSW), which applied to the assessment of damages in this case. 51 In relation to non-economic loss, the trial judge found that the plaintiff's injury was to be assessed at 27% of a most extreme case: Judgment, p 60. The RTA submits that the appropriate range was 15%-20% of a most extreme case. 52 There is some substance in the submissions for the RTA, although a fair analysis would require an assessment of the whole of the medical evidence presented at trial, at least to the extent it was accepted by the trial judge. This exercise was not undertaken by the RTA either in written submissions or orally and, given the marginal effect that any variation would have on the final award of damages, the case for intervention has not been established. 53 In relation to future economic loss his Honour determined that the loss of earning capacity resulting from the injury to the plaintiff's knee amounted to $150 per week for 30 years, subject to a 20% discount for vicissitudes: Judgment, p 64. 54 The calculation of future economic loss was required to be undertaken in accordance with s 13 of the Civil Liability Act. The Civil Liability Act commenced on 20 March 2002 and the provisions of Part 2, within which s 13 is to be found, apply to proceedings (such as these) commenced after the commencement of the Act: Schedule 1, cl 2. Section 13 provides: "13 (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which the damages were adjusted." 55 Whether, and if so in what way, s 13(1) affects the exercise required in assessing damages under the general law is not entirely clear. Under the general law, a plaintiff is required to demonstrate that a disability resulting from a tortious act will continue in the future and will affect his or her earning capacity, in a manner which will probably cause financial loss: c.f. McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353. The phrase "most likely future circumstances" may be comparative, in the sense of identifying from a possible range those circumstances most likely to eventuate, or qualitative, in the sense of requiring an outcome that is not merely probable, but "most likely" to arise. The former appears to be the natural meaning of the phrase, read in context, and does not significantly affect a general law assessment. That construction was accepted by Hodgson JA in MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; 41 MVR 235 at [11]. 56 Subsection 13(2) is either addressed to the usual allowance for vicissitudes, or to the kind of calculation required by Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, or possibly both, c.f. Ardizzone at [6]-[8]. 57 Generally speaking, a figure of 15% is allowed for vicissitudes. In the present case, future economic loss was reduced by 20%, "bearing in the mind the epilepsy and other health problems that she has had to date": Judgment p 64. No complaint is made by the plaintiff about that allowance. The critical finding was in the following terms (Judgment, p 62-64): "The plaintiff has a residual capacity, although she did have some difficulties as an administrative assistant to the Townsville Hospital. I am of the view that there is a range of sedentary type employment that she could perform. Most of her employment has been a semi-menial type employment that requires her to squat, stand, push, bend and do a range of activity which would aggravate a knee condition. … The plaintiff's restrictions, to which I have referred are permanent and I am of the view that the plaintiff's economic capacity, as a result of this accident, continues at a rate of $150 per week. In properly being able to determine the plaintiff's future economic loss in my view, bearing in mind the epilepsy and other health problems that she has had to date, it would be appropriate to allow $150 per week for 30 years, but to increase for vicissitudes to 20%." 58 On their face, the reasons may appear not to accord with s 13(3): nevertheless, taking into account other findings that appearance becomes deceptive. First, his Honour concluded that at the time of the accident the plaintiff was earning $300 per week after tax: Judgment, p 60. He noted that in March 2003 the plaintiff obtained employment "which would appear to have been paid more than employment she had previously been in, although allowing for increases [in inflation?] it was probably about the same": Judgment, p 62. 59 Secondly, in assessing the economic loss from 1 January 2004 to the date of trial, his Honour said that the plaintiff had an economic "incapacity" which he assessed at $150 per week: Judgment, p 63. Taking these figures together, it appears that his Honour (unfavourably to the plaintiff, but about which there is no complaint) treated the plaintiff's earning capacity at the date of trial as being the same, in financial terms, as at the date of accident. (This appears by taking together the assessment of incapacity and that of capacity, each calculated at $150.) As a result, it may be inferred that her loss of earning capacity was assessed at 50%. 60 As noted by Hodgson JA in Ardizzone, there are difficulties in knowing precisely what s 13 requires of a trial judge in assessing future economic loss. However, it appears that the trial judge did consider the most likely future circumstances, but for the injury, namely a continued future earning capacity was, in current monetary terms, assessed at $300 per week. It was difficult for the RTA to complain about that calculation: it is most unlikely that her earning capacity was, in monetary terms, the same in December 2006 as in February 2000. Furthermore, she was then working limited hours to allow her to care for three young children. His Honour found that she would have been "available to work longer hours" once the youngest child (11 years of age in 2006) reached the mid-teens: Judgment, pp 63 and 64. His Honour therefore complied with s 13(1), being satisfied as to the most likely future circumstances but for the injury and stated those assumptions for the purposes of s 13(3). If, as Hodgson JA has accepted, s 13(2) relates to vicissitudes, then allowance was made for the possibility that loss would have occurred but for the injury and a relevant percentage was stated. It follows that there was no breach of s 13. 61 As the RTA did not seek to make any specific criticisms of the figures adopted by his Honour it follows that the challenge to the assessment of damages would have been rejected, had it been necessary to determine that aspect of the matter. Conclusion 62 Because the RTA did not owe a duty of care to the plaintiff in the circumstances of the case, the judgment in her favour should be set aside. 63 The final paragraph of the transcript of judgment of 15 December 2006 referred to an application for indemnity costs by the plaintiff, which was stood over to 22 January 2007. Whether agreement was later reached between the parties does not appear from the appeal papers, but no request was made to set aside any order for costs below. The RTA did, however, seek costs of the appeal and the trial, to which it would be entitled in the event of success. The plaintiff did not resist costs orders in that event. 64 Accordingly, the appropriate orders are:

(1) Allow the appeal and set aside the judgment in favour of the plaintiff given in the District Court of New South Wales on 15 December 2006.

(2) In lieu thereof give judgment for the defendant.

(3) Order that the plaintiff pay the defendant's costs of the trial.

(4) Order that the respondent pay the appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW). 65 BELL JA: I have had the benefit of reading the judgments of Basten JA and Mason P in draft. I agree with Basten JA's conclusions as to breach and with the orders that he proposes. I also agree with his Honour's reasons in relation to the challenge concerning the quantum of damages. 66 Senior counsel for the RTA in written submissions referred to the joint judgment in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 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."

Counsel noted that the question of whether this statement goes to the existence of duty or to breach of duty had been the subject of differing views in this Court (citing Temora Shire Council v Stein ), however, he submitted that the issue was of little practical significance in this case. (Orange 20.R, [41]) The grounds in the amended notice of appeal challenged the Judge's finding of breach of duty. 67 Basten JA observes that there is a fine line between a conclusion that a defendant owed no duty to a plaintiff in a given case and that a duty was owed but not breached because the defendant was not in the circumstances required in the exercise of reasonable care to take the steps for which the plaintiff contended. His Honour deals with the appeal on both approaches. The principal challenge in the way the appeal was formulated was to the finding of breach. I prefer to express no view on the duty question and to deal with the appeal on the question of breach. I respectfully agree with Basten JA's analysis of this issue and wish only to add the following.

68 The plaintiff's case came down to a single particular of negligence, which was the failure of the RTA to place a steel grate over the duct (Black 56.H-I). While the risk of tripping on a median strip is one that may involve serious consequences, it was a low risk. The RTA led evidence to establish that the installation of steel covers created other risks that were arguably of greater magnitude. Mr Vickery gave evidence of three: (i) dislodgement of the cover (particularly in areas where there is a high percentage of heavy vehicular traffic), which might then become a projectile; (ii) becoming slippery when wet; and (iii) constituting a tripping hazard to pedestrians crossing the median at the point of the duct. (Blue 275-276) In cross-examination Mr Vickery acknowledged that the slipping hazard could be addressed by the use of a superior grade of metal. (Black 181.C) (Professor Yandells considered that the surface of the cover could be impressed with a chequerboard pattern to address the risk of slipping.) Mr Vickery was not challenged as to (i) or (iii). 69 The Judge referred to the "projectile risk", observing that it was likely to be an infrequent occurrence. (Red 64.U) That may be so, but there was no reason to conclude that it was a risk less likely to eventuate than the risk of a pedestrian tripping over the uncovered duct. The Judge did not refer to the risk that the cover itself would be a trip hazard. It is difficult to see how the reasonable response of a road authority to the risk of a pedestrian walking along the median and tripping on the uncovered duct required that it adopt a measure that created two risks one of which (the projectile risk) may be thought to have been more serious. 70 Mr Dunlop gave evidence that employees of the RTA are killed or injured by passing traffic each year in the course of carrying out works in close proximity to traffic. (Blue 338.G-J) It is for this reason that the RTA seeks to minimise the occasions when its staff are required to work in such conditions. His Honour rejected the evidence, saying this: "I do not accept Mr Dunlop's suggestion of a resistance to the RTA installing covers on drainage slots on Occupational Health and Safety grounds. Bearing in mind that lane closures and warning signs are frequently used for all purposes involved in lane construction, maintenance repair, line painting, grasscutting and the like." (Red 50.K - O) 71 Mr Dunlop's evidence of the incidence of injury to RTA road workers was not challenged. It is unclear why his Honour did not accept it. The fact that the RTA makes use of warning signs and lane closures at the site of road works does not appear to have removed the risk of injury (including fatal injury) to its staff. Drainage ducts are an essential feature of the design of the median. Covered ducts require more maintenance than uncovered ones and can only be inspected on foot. This was a consideration to be taken into account in determining the response of a reasonable road authority to the risk of a pedestrian tripping on an uncovered duct. **********

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