Roads and Traffic Authority of NSW v Jackson

LOWER COURT District Court JURISDICTION : LOWER COURT DC 6303/00 FILE NUMBER(S) : LOWER COURT Coorey DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40201/02 DC 6303/00

MASON P STEIN JA SANTOW JA

Wednesday, 5 March 2003 ROADS AND TRAFFIC AUTHORITY OF NSW v Paul Kenneth JACKSON

Facts: On 16 June 1998 the opponent sustained injuries when he either fell or rolled off a 10-metre embankment adjacent to a railway bridge on the side of the Princes Highway at Yallah. Immediately prior to the accident the opponent was walking in a southerly direction towards his home in Barrack Heights along the cycleway on the Princes Highway. He had attended a wake with friends in Kanahooka. While the opponent had consumed at least six full strength beers in a period of 3 hours, he denied that he was intoxicated when the accident occurred at about 1 o'clock in the morning. The accident occurred when the opponent stepped over a metal guard rail and into the bushland adjacent to the road in order to urinate. He crossed the guard rail at a point just past where it dropped in height from 1m to 700mm. The guard rail, designed to prevent vehicles from leaving the roadway, was raised for 30m at this particular point because the road formed a bridge where it intersected a railway line at an angle of 35-45. The opponent, who had walked this route on 3 previous occasions, including at night time, was aware that the road formed a bridge, and that there was a drop of about 10m from the bridge to the railway tracks below. He had also driven over the bridge on numerous occasions. After stepping over the guard rail he took several steps into the bush where he stumbled as he undid his fly. He later regained consciousness on the railway tracks below. The trial judge found that the drop in height of the guard rail signalled that it was safe to cross the guard rail where the opponent did, and thus constituted a trap. Consequently his Honour found that the RTA owed the plaintiff a duty of care to ensure that he did not injure himself in the manner that he did. The claimant sought leave to appeal against the finding of liability. Held: (Stein JA, Mason P and Santow JA agreeing), extending time to file ordinary Summons for Leave to Appeal, granting leave to appeal on the undertaking of the claimant to file a Notice of Appeal, and allowing the appeal, As to the existence of the duty of care; As per Brodie, and Richmond Valley Council v Standing [2002] NSWCA 359 the Claimant had a duty of care to eliminate reasonably foreseeable risks to users of the roadway exercising reasonable care for their own safety. The risk that a person might do what the opponent did was so far fetched and fanciful as not to be reasonably foreseeable [para 42]. As a pedestrian, with knowledge of the area, it was reasonable to expect the opponent to realize the dangers involved in leaving the roadway at the particular point at which he did. With regard to the submission that the change in the height of the rail constituted a trap; As per Richmond Valley Council v Standing, the opponent's assumption that it was safe to leave the road where he did was unwarranted. Given his experience and knowledge of the area, the opponent had no good reason to make this assumption. The metal guard rail over which the opponent stepped was typical of roadway guard rails throughout the State. These guard rails designed to prevent vehicles, not pedestrians, from leaving the roadway are common and do not typically signify that it is safe for pedestrians to climb over to leave the roadway. Orders:

1. Extend time to file ordinary Summons for Leave to Appeal.
2. On the undertaking of the claimant to file a Notice of Appeal, grant leave to appeal.
3. Appeal allowed with costs.
4. Verdict and judgment of Coorey DCJ of 4 March 2002 set aside and in substitution thereof order that there be a verdict for the defendant with costs.
5. The opponent receive a certificate under the Suitor's Fund Act if otherwise entitled.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40201/02 DC 6303/00

MASON P STEIN JA SANTOW JA

Wednesday, 5 March 2003 ROADS AND TRAFFIC AUTHORITY OF NSW v Paul Kenneth JACKSON Judgment

1 MASON P: I agree with Stein JA. 2 STEIN JA: This is a concurrent hearing of an application for leave to appeal and, if granted, to appeal a judgment of Coorey DCJ delivered in the District Court on 4 March 2002. The claimant, the Roads and Traffic Authority of NSW (the RTA) also seeks an order extending time for the filing of the summons for leave to appeal. There is no opposition to this course and the court should so order. 3 His Honour entered a verdict in favour of the opponent, Mr Jackson, in the sum of $62,817.56 after deducting 20% for contributory negligence. The opponent was injured on 16 June 1998 when he fell about 10m from a road embankment near a rail bridge on the Princes Highway at Yallah.

The facts 4 The brief facts are as follows. The RTA had the care, control and management of the Princes Highway at Yallah. The opponent had visited with friends at Kanahooka, quite some distance from the accident site. The visit was in the nature of a wake. There were two men and two women present, including Mr Jackson. He took with him a 24 pack of full strength beer. The opponent says that he drank six of these over a period of around three hours (7 to 10 pm) before he left Kanahooka to walk home to Barrack Heights. 5 His plan was to walk to the Princes Highway and then along it as far as Albion Park Rail before obtaining a taxi the rest of the way home. He walked along the highway in a marked cycleway in a generally southerly direction. The cycleway was on the road shoulder and 3m wide. While the cycleway was not designated for pedestrians, they were not prohibited from using it and it seems that a minimal number of pedestrians did use the cycleway. The RTA says that the number of pedestrians was not such as to warrant any pedestrian facilities or warning signs. 6 The opponent said that he walked for about two hours before resting. He rested for about ½ hour while he smoked two to three cigarettes. He then resumed walking and the accident occurred about ¾ hour later. This would make it about one o'clock in the morning. 7 In the vicinity of Yallah the opponent walked on the highway across a rail bridge. The bridge span was about 30m and crossed the southern railway line at an acute angle of 35 - 40º to the rail alignment. 8 As the opponent crossed the bridge he looked to his left and saw the railway line at an angle below. He had walked this route over the bridge on three previous occasions, including at night. He had also driven or been a passenger in a motor vehicle travelling over the bridge on numerous occasions. Along the side of the bridge was a concrete and metal guard rail about 1m in height. 9 The opponent was aware of this guard rail. Mr Jackson felt the need to urinate and noted that the bridge rail finished and was replaced by a metal guard rail at the side of the cycleway. This rail was lower than the bridge rail and about 700mm high. 10 The purpose of both guard rails was, according to engineering evidence, to prevent vehicular traffic leaving the roadway. The guard rails were not designed or placed on the bridge and highway for pedestrians. 11 The opponent said that he walked a couple of steps past the end of the bridge and adjacent to the lower 700mm guard rail. He presumed that it was safe to step over into the adjacent bushland in order to urinate. 12 The opponent said that he stepped over the guard rail and took a couple of steps forward into the bushes, which were thick and shoulder height. He was undoing his fly in order to urinate when he fell downwards and over the embankment onto the train line below, a distance of around 10m. 13 It was dark at the spot where the accident occurred and the only illumination was from the moon, although the opponent said that it was overcast and later rained. 14 His Honour found the opponent to be a credible witness and accepted his account of the accident. It was Mr Jackson's evidence that when he saw that the higher guard rail had given way to a lower guard rail he 'presumed' it was safe to step over. He also said that where he stepped over the rail the ground appeared to be safe and level. He described the area as 'an embankment of flat ground'. Mr Jackson said that at the time of the accident he had no idea that the embankment wall cut back at such an acute angle. 15 The opponent tendered a number of photographs taken some 6 months after the accident. He was at pains to point out that at the time of the accident the undergrowth was much thicker than shown in the photos. 16 In cross-examination the opponent was shown photographs on which he marked the point from which he had fallen. It was put to him that the ground surface at the point he crossed the guard rail was initially flat. He agreed. It was then put to him that the ground surface then immediately started to slope away. The opponent agreed but said that it appeared to be a 'straight embankment' and he expected a gentle slope. He did not expect it to drop away suddenly after a couple of steps into the bushes. He thought 'it was fine to take those couple of steps forward to do what' he had to do. 17 Albeit with died back vegetation, the photographs, plainly show that the ground slopes away quite steeply at the point where the opponent says he stepped over the guard rail and subsequently fell. Other expert evidence indicates that there is in fact a slope of between 3 to 3.5m between the guard rail and the edge of the concrete embankment, over which the unfortunate Mr Jackson toppled.

The Judgment 18 The relevant findings of his Honour are as follows: I am satisfied that the defendant owed the plaintiff a duty to take reasonable care for his safety and to protect him against the risk of foreseeable injury, being the injury which he sustained after stepping over the low guard rail. That duty included an obligation to have a raised section of the rail for the duration of the particular hazard. A raised rail would have alerted a pedestrian to the fact that something in that area was different to the surrounding area. The raised rail of about four feet over the bridge alerted a pedestrian to the fact that there was a danger on the other side of the rail but then the rail drops to a height of only about two feet which would indicate that there was no danger at that part of the rail, the lower rail could be easily stepped over by a pedestrian, the danger on the other side of the rail was hidden. 19 His Honour identified the RTA as being a highway authority which owed a duty of care in respect of a reasonably foreseeable risk of injury to pedestrians who used the path. 20 The judge found that the pathway was a designated cycleway and there was no other place for a pedestrian to use and thus concluded that 'the risk was foreseeable to the defendant'. 21 His Honour also found that the RTA should have erected a rail of the same height as on the bridge (for a distance of 20m at minimal cost) or that the RTA should have erected a warning sign of the danger where the high rail dropped to the lower level, and provided lighting in the vicinity. His Honour found that a reasonable person in the position of the RTA would have responded to the foreseeable risk by raising the rail height so that a pedestrian could not step over or, by erecting a warning sign and light.

Submissions 22 On behalf of the claimant Mr Maconachie QC submitted that the trial judge misunderstood or misapplied the test of foreseeability both at the duty of care stage and later at the breach of duty stage. He submitted that his Honour failed to properly consider the class of persons to whom the RTA owed a duty of care. It was submitted that the opponent made unwarranted assumptions about the safety of the area where he left the road and stepped over the guard rail to urinate. In the claimant's submission the finding that the RTA could reasonably foresee that a pedestrian would leave the road at the point where the opponent did, at night, and in the dark, was not tenable. In effect, it was submitted that it was fanciful to suppose that a pedestrian would do what the opponent did at that particular place on the road. 23 Further, the change of level from the concrete rail on the bridge to the lower guard rail just past it, did not constitute a concealed or hidden trap to this particular plaintiff. The guard rails were essentially positioned to prevent vehicles leaving the road. The opponent made an erroneous assumption that the change in height of the guard rail signalled that it was safe to climb over and move into the bush in order to urinate. Plainly the opponent was not exercising reasonable care for his own safety. 24 Mr Maconachie also submitted that the evidence never adequately explored the argument that the RTA should have provided a warning sign and lighting and his Honour's finding thereon was not open to be made. With regard to this submission the decision of Graham Barclay Oysters Pty Ltd v Ryan (2002) 194 ALR 337 is of some relevance (see para 192 per Gummow & Hayne JJ). 25 On behalf of the opponent, Mr Colquhoun submitted that his Honour's decision was not attended by any legal error. He submitted that there was a hidden danger or trap constituted by the lower guard rail following on from the higher rail on the bridge. The change in height indicated to the opponent that it was safe for him to step over the guard rail and advance into the bush to urinate. The opponent was exercising reasonable care for himself by waiting until the rail height dropped before stepping over at this point. His Honour was entitled to find that the risk was a reasonably foreseeable one.

Discussion 26 I do not think it necessary to embark upon any detailed analysis of the case law. I will however make reference to two recent decisions of the High Court. Brodie v Singleton Shire Council [2001] 206 CLR 512 considered the liability of a highway authority to users. On the issue of the content and breach of duty the joint judgment of Gaudron, McHugh and Gummow JJ had this to say at [150]: … Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist. 27 Later their Honours referred to the particular position of pedestrians. Their Honours said at [163]: The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. 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 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. [emphasis added] 28 The reference to Callinan J's reasons in Ghantous is to para 355 of the judgment wherein his Honour said: … There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. 29 Tame v New South Wales (2002) 191 ALR 449 contains useful discussion on foreseeability and the so-called 'undemanding' test. 30 Gleeson CJ said at para [12]: A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed. More than 150 years ago Pollock CB said that a person "is not … expected to anticipate and guard against that which no reasonable man would expect to occur". Foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of duty, or remoteness of damage. The present cases are concerned with the first topic. The subject of foreseeability was discussed by this court in Wyong Shire Council v Shirt , which was concerned with the second topic. (The duty of care was conceded). Reference was there made to the rather tendentious description of the requirement of foreseeability as "undemanding" , a description that may be more or less accurate depending upon the context. It is important that "reasonable foreseeability" should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated. 31 In Tame, McHugh J noted that the concept of reasonable foreseeability plays a vital role in the identification of a duty of care in the absence of a pre-existing duty [para 89] as it underpins the concepts of both breach of duty and remoteness. Citing the often-quoted words of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 (at 48) that a risk, which is not far-fetched or fanciful, is real and therefore foreseeable, McHugh J noted that the test of reasonable foreseeability of damage established in Shirt is an undemanding one. His Honour emphasised that the test had not always been so undemanding (see paras 97- 108). In my opinion, there is much to be said for his Honour's critique however the court remains bound by Shirt. 32 It may be noted that the Civil Liability Act 2002, s 5B(1) now states the test of foreseeability in the following terms: A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it a risk of which the person knew or ought to have known, and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

See also the discussion in the Review of the Law of Negligence, Ipp et al (September 2002, Chapter 7). 33 Also pertinent is the decision of the Court of Appeal in Richmond Valley Council v Standing [2002] NSWCA 359. In examining the existence of the duty of care Heydon JA, with whom Handley and Sheller JJA agreed, referred to the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie where it was stated that 'not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury'. Accordingly, the duty must be assessed in part by reference, not to any requirement for the footpath to be safe in all circumstances, but to the position of 'users exercising reasonable care for their own safety' [para 163 in Brodie]. As earlier mentioned, their Honours emphasised the importance of this standard with regard to pedestrians. 34 Heydon JA said, at [29] that: … The question is whether there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians. The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question of the scope of duty, but to the question of its breach. 35 In examining the facts of the case before the court Heydon JA said that a pedestrian exercising reasonable care for his or her own safety ought to have seen the hole in question. 36 His Honour added, at para [54]: Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety . The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance. [Emphasis added] 37 Heydon JA further said that in so far as there may have been any hazard, it was not only obvious, but insignificant and common. Thus it was not a danger, a hazard or a trap. 38 In light of the authorities a number of features of the facts of the case before us should be emphasised. The accident occurred at the side of the highway in a semi-rural area. The nearest building was an industrial one, 300m away and the closest dwelling was about a kilometre away. While pedestrians were not prohibited and occasionally used the roadway, the area where the opponent walked was a dedicated cycleway. The opponent was not a stranger to the area having walked it on three prior occasions, by day and by night. He had travelled the area by car on numerous occasions. He was aware of the bridge over the railway line with its concrete and metal guard. As he crossed the bridge he looked down and saw the railway line about 10m below. The acute angle at which the bridge crossed the railway line must have been obvious. The opponent could also see where the bridge ended. Prior to the accident the opponent said that he had consumed six beers but denied that he was intoxicated. 39 After he had taken a few steps past the end of the concrete guard rail to the bridge, the opponent stepped over the lower metal guard rail into the adjacent bushland. He assumed the area to be initially flat. In the darkness of the early hours of the morning the opponent moved a couple of steps into the bush in order to urinate. In so doing he fell and went over the embankment wall landing on the rail lines some 10m below. 40 The purpose of the guard rails on the bridge and on the roadway where the opponent stepped over was to prevent motor vehicles leaving the roadway, not pedestrians. The guard rails were of a standard type and used by the RTA throughout the State. 41 What might a reasonable authority reasonably foresee? It could foresee that a pedestrian might walk along the cycleway during the night. It might foresee that a pedestrian or motor vehicle occupant might, through illness or human necessity, step over the guard rail onto the bushland at the side of the road to be sick or urinate. But could it reasonably foresee that a pedestrian would step over the guard rail at this point, immediately past the rail bridge and, importantly, move into the bushland away from the guard rail and roadway? 42 It seems to me that the risk that a person might do what the opponent did was so far fetched and fanciful as not to be reasonably foreseeable by the claimant. The risk was simply so remote as not to be a reasonably foreseeable one. Moreover, I do not accept that the transition from the 1m high concrete guard rail to the 700mm metal guard rail at the edge of the bridge close to where the opponent stepped over into the bush, constituted a trap which required some protection or warning. The lower height of the guard rail did not 'invite' the opponent to step over it into the bush beyond. In accordance with the principles expounded by Heydon JA in Standing, there simply was no hazard or trap created by the change in the height of the guard rail. 43 The opponent's assumption that it was safe to leave the road where he did was unwarranted. He had no good reason to do this given his previous experience and knowledge of the area. There simply was no hidden trap or concealed hazard which required a warning sign and light and his Honour was wrong to so find. Nor was the evidence such as to enable a finding that the RTA had an obligation to raise the height of the rail 'for the duration of the particular hazard'. The lower rail (from that on the bridge) did not indicate that it was safe to step over the rail and enter the adjacent bush. 44 Undemanding as the test of reasonable foreseeability may be, it was simply not satisfied on the facts of this case, whether examined at the duty or breach stage. It was simply too remote a risk to reasonably foresee. There was no pre-accident history to alert the claimant. It was plainly uncommon for pedestrians to walk along the cycleway, particularly at night. 45 Moreover, the opponent chose to step over the guard rail immediately after crossing the bridge from which he had observed the rail line cutting the road at an acute angle. Indeed, he then elected to take several steps into the bush behind the rail in the darkness of night when there was inadequate light for him to gauge whether the surface was flat or sloping. 46 What is plain is that the plaintiff was not taking reasonable care for his own safety, as he was obliged to do. It cannot be said that the opponent was exercising reasonable care for his own safety by waiting until he crossed the bridge and the rail height diminished. He stepped over the guard rail in the dark without knowledge of the terrain on the bushland side. He knew that the area was immediately adjacent to the 10m drop to the railway line below and he knew or ought to have known of the acute angle at which the bridge cut the railway line. This would have been apparent when he crossed and looked down. To compound his lack of regard for his own safety, the opponent then took a few steps into the bush where he could not know or reasonably assume that the ground was flat. In fact, it was steeply sloping and the opponent fell and injured himself. 47 His Honour made findings about the opponent's negligence, which are not challenged by any notice of contention. In stepping over the guard rail where he did, and in the dark, his Honour found that the opponent failed to take sufficient care for his own safety. 48 As the High Court stated in Brodie, users of roadways need to exercise reasonable care for their own safety. This is even more important with pedestrians. Pedestrians are ordinarily expected to look where they are going and to perceive and avoid obvious hazards. Unfortunately, this opponent failed to take elementary precautions for his own safety and it was his failure to take reasonable care which caused his downfall. In my opinion, the appeal should be allowed.

Application to adduce fresh evidence 49 At the hearing the court refused leave to the opponent to adduce evidence contained in an affidavit of Ashley James Fife sworn 7 February 2003. The material annexed to the affidavit concerns a subsequent accident in the area and steps allegedly taken by the claimant to install fencing. Assuming without deciding the relevance of the evidence, which would be limited, the court has to exercise a discretion whether to admit it. Given the nature of proceedings, a claim for damages for personal injury, and the general public interest in the finality of litigation, it would be inappropriate to exercise the discretion to admit the material. It not infrequently occurs that there is a subsequent accident in the vicinity of an earlier one. It would be problematic, and contrary to the public interest in the finality of litigation, if cases were regularly reopened in these circumstances. It would also visit unwarranted prejudice on the claimant in its ability to answer the appeal in this case because the short notice provided may have curtailed the ability of the RTA to respond to the new evidence. Given these factors the evidence in the affidavit ought not now be permitted to be raised.

1. Extend time to file ordinary Summons for Leave to Appeal.

2. On the undertaking of the claimant to file a Notice of Appeal, grant leave to appeal.

4. Verdict and judgment of Coorey DCJ of 4 March 2002 set aside and in substitution thereof order that there be a verdict for the defendant with costs.

5. The opponent receive a certificate under the Suitor's Fund Act if otherwise entitled. 51 SANTOW JA: I agree with Stein JA.

Last Modified: 03/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.