Roads and Traffic Authority v McGregor & Anor

Roads and Traffic Authority v McGregor & Anor - [2005] NSWCA 388 - NSWCA 2005 case summary — Zoe

[15]

The Primary Judge's Reasons 13 After referring to Mrs McGregor's account as noted above and to her evidence that she did not recall any nearby streetlight Judge Bishop continued: "10. The plaintiff indicated that she had never been in Thornton St before New Years Eve. However, at about 10pm on New Years Eve she had gone down to the park and not many people were about. She confirmed that the damaged area at the base of the post was obvious in broad daylight. When she had the accident, however, she again said that there were leaves blowing around and no streetlight and she did not look at the path as she was concentrating on edging past the other pedestrians." 14 The Judge said that Mrs McGregor was an acceptable witness who gave her evidence in a very straightforward fashion. He did add that she did "appear to be a little evasive as to the effect of her back surgery and her bowel cancer problems on her need for domestic assistance". 15 Judge Bishop said: "12. By way of background to the state of the footpath around the base of the post in question evidence was given by Ms Zabbataro. She had been a resident of 23 Thornton St since 1995. She examined the photographs of damage around the base of the post which photographs were put in evidence earlier and stated that in her view that damage had been there about six years or pretty much for the period of her residence in Thornton St. She did not recall any work being done around the post until it was repaired in the middle of 2003. The damage was in the same condition more or less over the whole period of six years and it was visible whether you were walking up or down. She mentioned that number 21 Thornton St and number 23 shared a common driveway." 16 Mr Barry Tozer, an engineer, had inspected the galvanised steel post on 18 April 2001 and found it fitted with a "No Standing/Bus Zone" sign. The Judge summarised his report as follows: "13. ….He described how the post was positioned in the hole filled with concrete, the level of which was lower than the adjacent footpath. Part of the adjacent footpath concrete had been cracked and broken during the construction of the post. As a result of this there was some subsidence. The work of installation of the post in Mr Tozer's view had not been performed in a manner which left it in a safe condition for pedestrians. In more detail in his report he indicated that the damage to the paving slab in which the post was positioned was as a result of poor installation work and that subsequent subsidence had occurred in part of it due to an ingress of water beneath the slab. In particular he indicated an awareness of the RTA's specifications for installation of posts such as this and considered that the installation was not in accordance with those specifications." 17 The Judge summarised Mr Tozer's oral evidence as follows: "15. In his evidence he indicated that he had made no assumption about when the post had been installed. The hole in the slab in his opinion had been created in the demolition process prior to its installation by a pneumatic or hydraulic hammer. He was doubtful about any contribution by postulated motor vehicle collisions with the post. He thought it was just possible that such a collision could have contributed to the cracks in the slab, but the variety of different levels demonstrated in the photographs were not likely to be due to a motor vehicle accident. He confirmed that water ingress could contribute to the overall picture. The cracking around the base of the post resulted from the installation and had been left there in the witness's opinion. He felt that examination of the photographs tended to argue against any collision having occurred because of a line of weathering in the galvanising. He had however, done some calculations with regard to a motor vehicle impact which he explained and felt that such a collision would have been very unlikely. The idea of some good Samaritan having straightened the post after a collision he rejected as such straightening would leave some signs of kinking. For a collision to cause the damage there would need to be a very heavy vehicle causing, in his opinion, a substantial upwards pressure." 18 Mr Jackson Clark, an engineer, gave evidence for the RTA. Whilst his evidence was primarily directed to the case against the RTA it also has relevance to the case against the Council and I refer to it now. 19 The judgment noted that Mr Clark's inspection took place on 29 October 2003 by which time the base of the post had been repaired. It went on: "16. He did not agree with poor installation as the cause of the damage, nor was he happy with the arguments from Mr Tozer about subsidence. He was shown Exhibit B, which will be dealt with hereunder, with its reference to a 1974 motor vehicle accident. The witness considered that impact damage from such an accident could have caused the damaged concrete around the base of the pole. He rejected the idea of poor workmanship and thought that even subsequent motor traffic accidents could have contributed to the overall position. It was also possible that somebody else might have straightened the pole after a collision but he conceded that when he saw the post there was no sign of any damage. He agreed on looking at the photographs from the time of shortly after the accident that the damage on the footpath should have been repaired. He could think of no explanation other than motor vehicle impact." 20 Judge Bishop observed that of the two experts he preferred the opinions of Mr Tozer. He noted that he was impressed by his demeanour and gave other reasons to which it is unnecessary to go. 21 Before dealing with the contentious issue of who installed the post, to which I shall come later, Judge Bishop then referred to a number of exhibits being documents tendered in Mrs McGregor's case, which bear upon that issue and also upon the issue concerning the Council's knowledge or opportunity for knowledge of the damage about the base of the post. I should set them out: "20. Exhibit B was a copy of a letter from a Mr Arnold of 21 Thornton St to the Council. This referred to a car accident that had occurred some months earlier outside Thornton Place where a "No Standing" sign had been demolished and replaced. The date of that letter was 3 May 1974. Exhibit F was a request from the Council to the predecessor in title of the RTA (the DMR) for work on No Standing signs on the northern side of Thornton St near Yarranabbe Road. The request was dated 11 December 1978 and on its face the work was completed on 8 November 1979.

[21]

Exhibit S contained general Traffic Committee records relative to consideration of other matters from time to time in Thornton St." 22 Judge Bishop then referred to the evidence of a number of witnesses called by the RTA. I shall deal with that evidence later in considering the appeal by the RTA, however, some of it was also relevant to the case against the Council. 23 The Judge referring to the evidence of Mr William Lindsay (who the evidence shows to have been a traffic services manager with the RTA) observed: "29… When shown some photographs of the footpath in question he said that the RTA would not leave a footpath like that. It should have been reported or fixed immediately as it represented a danger. He would not concede poor workmanship as a cause of the damage and was really unable to offer any explanation. He felt that a truck could, at some stage, have backed up on to the footpath." 24 His Honour noted that Mr Tobin, a retired leading hand with the RTA, conceded that the state of the footpath around the post, of which he had been shown photographs, "might be due to poor workmanship". 25 Of Mr Polizois, a work supervisor with the RTA, the Judge said: "32. With regard to the Exhibit A photographs he confirmed that there is a written standard for the installation of these sorts of posts. He was not prepared to concede poor workmanship at the base of the post but appeared somewhat unwilling to try to postulate any explanation." 26 Judge Bishop then dealt with his conclusion as to the RTA installing the post to which I shall come later. He went on: "36. There is one other matter which emerges from the documents which have been reviewed above. It is very clear that the Council had received over the years submissions with regard to the state of the footpath or other problems adjacent thereto in the immediate area of the subject post. When these are taken into account with the matters in evidence of the considerations of the Traffic Committee and the fact that detailed plans were prepared by the council to redo the kerb and guttering in the relevant area of Thornton St the conclusion that has to be reached is that over a period of some years the Council or its representatives were frequently in the area of Thornton St relevant to this particular case on various types of tasks." 27 At this point his Honour under the heading "Legal Principles" reviewed a number of relevant cases commencing with Ghantous v Hawkesbury City Council (2001) 206 CLR 512 and commented that he had been referred to and considered many others. 28 I do not consider that the judgment revealed any error on the part of his Honour in formulating the principles he was to apply. 29 It is relevant to note that after referring to the duty of a pedestrian the Judge went on: "With regard to the duty owed by the relevant authority it is hard to go past the well-known statement in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47 per Mason J: 'In deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.' " 30 The Judge then stated his conclusions from the evidence as follows: "44. A number of facts clearly emerge from the evidence. The first of these is that at the date of the plaintiff's accident the footpath surrounding the base of the steel post just west of the entrance to 21 Thornton St was in a damaged condition. It is also clear that on the date of injury the plaintiff caught her heel in the damaged slab, causing a rotational injury to her right leg. Various suggestions that she may have tripped rather than caught her heel are, in my view, not made out.

[56]

Both Greg and I did not find any cracking or damage on the brick and sandstone front fences to properties along Thornton Street. There was also no evidence of cracking on any of the eternal walls of the houses along the street." 63 Mr Davies did submit that the report suggested inspecting only the southern side of the street, however, there are stone and brick walls on the northern side and, to my mind, the report refers to an inspection of Thornton Street on both sides. 64 At the least it seems to me that the report places Council Officers inspecting the area within which the post was even if their specific attention was directed to other matters. 65 In my view it was open to Judge Bishop to draw from the documents tendered the inference he did as to the opportunity for Council Officers to observe the obvious danger in the footpath outside No 21 and to do so at a time which would have allowed a reasonable time for repairs to have been carried out before January 2000. It was, I consider, open to him to conclude that Council Officers ought, exercising reasonable care, to have observed the defect and to have undertaken or arranged its repair. 66 In my view the documents support the inference the Judge has drawn from them. Particularly is this so in the absence of any evidence from the Council other than medical reports. 67 I should mention that at one point in the written submissions it was put: "This seems to be a finding of a negligent inspection by Council officers. This is confirmed by reference, when dealing with apportionment by the trial Judge in paragraph 57, to the fact that the liability of the Council rested on '…a failure to identify the damage on the footpath over a long period of time and to take steps to have it rectified.' (Red AB 38U-W). This in context can only be a finding of a failure to adequately inspect, accompanied by a causal link that had it been adequately inspected the footpath would, prior to the plaintiff's accident, on the probabilities, have been repaired." 68 The judgment is clearly founded upon not only a failure to detect but a failure to rectify. It is not necessary to support the verdict that there should be a conclusion that more probably than not prior to the accident a repair would have been effected. 69 What is required is no more than had the defect been identified the exercise of reasonable care would have resulted in it being repaired before the injury. (Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241). That is, a different thing to a finding that "the footpath would, prior to the plaintiff's accident, on the probabilities, have been repaired". 70 In regard to the Judge's view that Councill officers ought to have observed the damaged footpath it is material to note the following evidence of Mr Clarke. Whilst Judge Bishop preferred the evidence of Mr Tozer to that of Mr Clarke, there was no dispute between them on the matters now mentioned. It was clearly open to Judge Bishop to accept Mr Clarke's views. In cross-examination Mr Clarke said: "Q. If a reasonably competent council engineer or member of a council engineering staff was conducting such an inspection along Thornton and saw damage such as shown in exhibit 8 to the footpath, you would expect that engineer firstly to report it, would you not? A. If, if, if they were doing their inspections in that area, yes, I, I would expect them to note it and -- Q. Note it and to take? A. Report it to those responsible for doing whatever had to be done. Q. And to take immediate steps to ensure that it was fixed, would you not? A. Well, I don't know that I expect the person that noticed it to take immediate steps to do anything else than report it, it may (sic) the doing of something after that could well be in the area of responsibility of other people in the organisation, so in terms of the immediacy of what might happen, I wouldn't allocate that to the person that happened to notice it. HIS HONOUR: Q. Is that what you are saying Mr Clarke, that in organisations such as these in the bureaucracy immediate action is a rather unusual concept? A. Yes. WILLIAMS: Q. Assuming that it was reported as you think it should have been, you would expect that as soon as reasonably practicable it should have been fixed, would you not? A. Yes. Q. Whether the hypothetical reasonably competent engineer was conducting an inspection or simply walking down the street and observe (sic) the damage shown in exhibit 8, you expect to note it and report it would you not? A. Yes." 71 I should add in respect of ground 6 that it is not incumbent upon Mrs McGregor to erect a windmill to tilt at. If the Council had seen fit to provide evidence as to its system of inspection questions might have arisen for Mrs McGregor as to its adequacy. However, the Council did not call such evidence. 72 In respect of ground 7 I am content to say that there is ample evidence upon which his Honour could determine the cause of the damage to the footpath adjacent to the subject signpost. He accepted Dr Tozer's views and there is other evidence to which it is unnecessary to go. In any event the verdict against the Council, as found, did not depend upon the cause of the initial damage to the footpath. 73 In my view it was open to Judge Bishop to find breach of duty as he did and I am not persuaded that he was wrong to do so. These grounds are not made out.

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Grounds 3 and 4 74 The written submissions as to these grounds put, amongst other things: "These grounds deal with both the adequacy of reasons and the result of the finding of breach of duty. In short it is submitted that, assuming there was duty owed, and assuming there was a foreseeable risk of injury, this was a case in which it was open to the Council to do nothing, having regard to the principle in Van der Sluice v Display Craft Pty Limited [2002] NSWCA 204 (9 July 2002) per Heydon JA at para 83; see also Phillis v Daly (1988) 15 NSWLR 65 per Mahoney JA at 74, Tomlinson v Congleton Borough Council [2004] 1 AC 46 per Lord Hoffman at 84-84." 75 The grounds were not expressly relied upon in the oral submissions. 76 I think it is clear from his judgment that Judge Bishop considered that to do nothing by way of repair was not an option. He considered that the damage should, in the exercise of reasonable care, have been repaired and there is abundance evidence to support that view. (See, for example [70] above). 77 In Van De Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at 83 Heydon JA, as he then was, made the point that the "Shirt calculus" leaves open the possibility that the response of a reasonable person may be to do nothing. 78 In my opinion the nature of the damage to the footpath and the virtually unanimous view of the witnesses with relevant qualifications as to what should be done with it takes such a response out of consideration. It was certainly open to Judge Bishop to so regard it. 79 It was further put in the written submissions that the length of time over which pedestrians had crossed the area without evidence of any previous accident or complaint made it "hard to see that a failure to repair (as opposed to avoiding the damage in the first place) was causative of the plaintiff's injuries." 80 The accident resulted, the Judge found, from the condition of the footpath. There is no valid distinction, relevant to the issue of causation, between negligently causing the damage to the footpath and negligently failing to rectify it. So far as causation of Mrs McGregor's injury was concerned it was the state of the footpath on the night of the injury that was relevant. 81 The absence of previous injuries at the site whilst, no doubt, relevant on a number of aspects is not determinative (Fairfield City Council v Cheryl Petra [2003] NSWCA 150 at [21] [34]. It is apparent that the abundant evidence as to the dangerous nature of the damage overweighed the absence of history of injury. 82 I do not consider that the Judge was called upon to explain more fully than he did the conclusion he reached on these aspects.

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The Installation 100 Apart from the general submission that the evidence did not establish that more probably than not the RTA had installed the post Mr Watson took issue with a number of aspects of the judgment dealing with the topic. 101 He submitted that there was a "little inconsistency" between Judge Bishop's view that "it is very likely that the installation of the subject post took place somewhere around the end of 1983" and his statement "the exact date when the post was installed is not totally clear." 102 To my mind the latter passage, particularly when read in its context, conveys the notion that the Judge was not limiting his conclusion that the RTA more probably than not installed the post to the correctness of his most likely date of 1983. 103 As it happens I agree with Mr Watson's submission that an examination of Exhibit G does not support the view that the post was installed in 1983. The subject post is shown as "existing" on the plan in Exhibit G and the recommendation made in the Exhibit appears to refer to the addition of a new post 21 metres to the west of that post to indicate the commencement of the bus zone. I should perhaps add that Mr Tozer gave evidence that the post shown as "existing" was in the location of the post he later photographed and examined. 104 Judge Bishop had rejected as a "little too speculative" reliance upon a letter written in May 1974 by a Mr Arnold which contained the following passage: "Some months ago there was a car accident outside Thornton Place and soon thereafter the "No Standing" metal sign which was demolished was replaced." 105 The purpose of the letter was to request attention to a wooden post which had been damaged at the same time and remained lying on the pavement. 106 It was put that regard to the topography and other matters should have led Judge Bishop to accept that the destroyed and replaced post was the one involved in this matter and thus accept that the relevant post was installed in 1974. 107 I am not persuaded that it was not reasonably open to Judge Bishop to take the view that he did of this letter. 108 Judge Bishop said in his judgment: "However, the surrounding documentation to which reference has been made establishes as I consider Mr Jackson Clark conceded that it is more probable than not that the installation of the post was done by the RTA." 109 Apart from contending that the documentation did not expressly show installation by the RTA of the relevant post, which is correct, Mr Watson challenged the assertion that Mr Clark made the concession relied upon. 110 I agree with the RTA's written submissions that the only part of Mr Clark's evidence that could arguably found the suggested concession is his evidence in cross-examination as follows: "Q. Coming back to my question, I want you to assume there are hundreds of this type of document in existence over the past 20 years, passing between the council and the RTA covering removal, installation and the movement of the safety signs, does that not suggest to you that Woollahra Council, was a council that invariably followed the practice of requesting to the RTA to carry out such works. A. Removal and installation. These documents we've been looking at concern installation, I don't think removal's mentioned but I think it's said that the documents certainly describe a practice of installation.

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Q. Take away removal, do you accept that it includes installation, movement and alteration? A. No, I don't think it includes anything above installation." 111 I also agree, with respect to the trial judge, that this passage does not contain the concession relied upon by the Judge. 112 Further, the question relied upon an assumption that was not, in the event, established albeit many documents were tendered. The period referred to went back only to 1984 and had little, if any, probative value as to the position before that time. 113 Mr Watson seized upon the passage in the judgment: "There is no evidence to suggest that it was installed by the Council. Nor is there any suggestion of work in the area done by developers or other statutory authorities." 114 As I understand his submission he took the last sentence to mean that there was no evidence against the RTA that it installed the post. I agree that if that there were so the claim would fail, however, this passage does not refer to the RTA, or any predecessor, but to statutory authorities other than the parties to this case. 115 In response to the challenge on this issue Mr Williams and Mr Davies, their interests being the same on this issue, relied upon certain evidence given by Mr Lindsay to which I shall come. Mr Watson, for his part, sought to "destroy" that evidence. 116 Mr Lindsay gave the following evidence in cross-examination by Mr Polin, who appeared for the Council at the trial: "Q. Generally speaking, and I accept there might be a developer who puts up a sign or a council that fixes a sign, but generally speaking 99 out of 100 signs would be put up by the RTA or its predecessors in time? A. Yes depending on what type of sign there is yes. Q. I am talking about traffic signs? A. Yes, maybe regulatory type signs, yes. Q. So Woollahra Council, not having taken up the block grant agreement until the last year or so, prior to that period of time you would say just on balance 99 out of 100 times the signs [were] erected, the traffic control signs erected throughout Woollahra Municipality, generally speaking would have been erected by the RTA? A. Generally speaking, yes." 117 Mr Lindsay had been employed for many years in senior positions with the RTA and its predecessors (nothing turns upon the changes in responsible entity) having responsibility for the erection of signs and posts such as that involved in the present matter. 118 Mr Watson, after the submissions to which I have referred, put that the finding in question should be overturned. He went on: "To do so, I have got to say something about something which his Honour didn't make a point about, but which the plaintiff, in submissions here, has said at least three, maybe more, times and that is a crucial witness for the RTA concedes that it was a 99 percent chance that the RTA installed the post. Your Honours may have seen that in the plaintiff's submissions. With respect, that submission is unavailable, and I will need to destroy it by some references to the evidence." 119 Before going to those references it is relevant to note that Mr Watson did not submit that Mr Lindsay was not qualified to express a view on this matter. 120 The first reference was to the cross-examination leading up to the passage I set out in [110]. I should set it out: "Q. That means prior to that the traffic signs and markings throughout the municipality of Woollahra were undertaken by the RTA? A. By and large, not all of it. Q. I understand when you say not all of it. You say from time to time a developer might be responsible for a sign? A. From time to time councils do their own signs also. Q. That is right, but generally speaking where a council had not taken up the block agreement, 99 out of 100 signs put up in that particular council area could have been done by the RTA. OBJECTION. OVERRULED POLIN: Q. Prior to taking up the block agreement? A. Yes. Q. With any particular council? A. Yes."

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Q. There is absolutely no doubt is there that was an RTA job? A. I can't say that for sure. …………. Q. It is almost certain, is it not, that bus zone and no standing zone signs and posts were erected by the RTA in that location, is it not. OBJECTION. HIS HONOUR: Noted. Q. Answer the question ? A. I can't say for sure because I don't know. WILLIAMS: Q It is most likely is it not? A. I can't say that either." 122 To my mind these passages do not "destroy" the effect of the passage relied upon by Mr Williams and Mr Davies. The effect is that of a witness not prepared to make further concessions against the interests of his employer than were necessary, but willing to truthfully answer the questions put to him even though such a question might involve a clearly significant concession. Ultimately Mr Polin asked the right question and it seems to me clear enough that Mr Lindsay answered it truthfully. I note that Judge Bishop observed that he was a straightforward man. The Judge also said that he was an experienced bureaucrat and such a description is not inconsistent with the way in which Mr Lindsay dealt with the matters put to him. 123 It is not clear why Judge Bishop did not refer to this evidence. He may have preferred to deal with the issue on the particular basis which he considered was made out rather than a more general approach based upon Mr Lindsay's evidence. There is no indication that he regarded Mr Lindsay as an unsatisfactory witness, indeed quite to the contrary. 124 It has occurred to me that it may be that Judge Bishop referred to Mr Clark in error. To speak of a concession would seem more appropriate to a senior manager of the RTA than the expert witness Mr Clark. On the other hand, the reference to documentation suggests, although not conclusively, association with the cross-examination of Mr Clark to which I have referred earlier [110]. 125 The possibility was not referred to in address and I proceed on the basis that the Judge's view is as set out in the judgment. 126 A further matter not raised in address but which I consider requires consideration is whether the passage in Mr Lindsay's evidence is limited as to time and therefore of reduced assistance. 127 As expressed the passage refers to "prior to that period" that is, prior to the Council taking up the block grant agreement "in the last year or two". It is unnecessary to go to a description of that agreement other than to note that it was adopted after any relevant event and produced a change in the RTA's work for the Council. 128 However, when Mr Williams cross-examined Mr Lindsay he referred to periods of time albeit in broad terms. The following evidence was given: "Q, For 30 years or more municipal councils in Sydney area had road safety signs on the footpath installed by the RTA? A. That's correct, yes. ….. Q. So the only body that could erect a sign containing a road safety post in a footpath in the Sydney area in the last 30 years is the RTA? A. No, that's incorrect." 129 There were further references in the cross-examination by Mr Williams to periods of thirty years and twenty-five years. There was reference to work by developers in periods of thirty or forty years. 130 In re-examination, after an overnight adjournment, the following evidence was given: "MR McINERNEY: Q. Mr Lindsay, yesterday you were asked about who it is who may have done work to install the subject pole 25 or 30 years ago and you indicated it could have been the DMR, the Department of Motor Transport or the Council, do you remember? A. That's correct, yes. Q, Or a developer, corrected by Mr Polin. So those four possibilities, a developer, Department of Main Roads, Department of Motor Transport or the Council. Based on your experience, what is the basis for your evidence yesterday that 25 or so years ago the Council may have been responsible for the installation of the subject pole? A. Councils did some of their own work both in those days too as they do today." 131 However, despite the reference to Mr Polin referring to "developers" there was no reference in his cross-examination to periods of time other than the "last year or two" or "prior to". 132 The periods of time of the order of twenty-five to thirty and forty years referred to during cross-examination by Mr Williams and in re-examination were periods put by the cross-examiner. They were not limitations expressed by Mr Lindsay. In my view the answer he gave to Mr Polin should be accepted as applying to all relevant times even if that went back beyond thirty or more years. He was in a position to know from his own experience and from the records of the section within which he worked of the matters referred to in his answer. 133 It is material to note that in re-examination no questions were directed to limiting the period over which Mr Lindsay's clearly material answer applied. An objection was taken and overruled. It does not appear what the ground of objection was, however, there is no ground of appeal directed to it. 134 I consider that Mr Lindsay's evidence leads to the conclusion that 99 out of 100 signs of the traffic control signs (which would include bus stops) in the Council's area at the time of Mrs McGregor's accident had been installed by the RTA or its predecessor. It is to be remembered that the alternative installers were not at large, they were developers or the Council. 135 In my opinion the evidence of Mr Lindsay is such that it could not properly be said that the conclusion reached by Judge Bishop on this issue was not reasonably open to him. 136 The RTA has submitted that this Court should set aside the finding on this issue and determine it afresh for itself. If this course were followed I would arrive at the same conclusion as Judge Bishop. I would do so substantially on the evidence of Mr Lindsay. 137 I am satisfied that more probably than not the RTA installed the post.

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Apportionment 148 Having earlier dealt with the manner of the post's erection and the condition of the footpath thereafter Judge Bishop set out his views on the issue of apportionment quite shortly. They appear at [31] above. 149 In its written submissions the Council put: "The apportionment was erroneous. At best if there was a breach of duty by both RTA and the Council, the RTA ought [to] have borne the greater majority to a significant extent, it is suggested 80% with the Council bearing no more than 20%. That is, in short, because the RTA created the danger at the time of installation of the post, it undertook the workmanship which was inappropriate, it made no attempt, on the evidence, to alert the Council to the potential danger and failed to check for any danger having regard to its workmanship, and the only failure on the part of the Council was, at best, a failure to inspect, then it is submitted that by far the greater proportion ought to be borne by the RTA." 150 The RTA did not seek to interfere with Judge Bishop's apportionment albeit Mr Watson did observe that this was not because it thought it had "a good deal from his Honour." 151 Rather the RTA put that the apportionment was not unreasonable or plainly unjust and was reasonably open on the material before him. 152 In Oxley County Council v Macdonald & Ors [1999] NSWCA 126 the trial judge had not explained his apportionment decision. Sheller JA, with whom Priestley and Powell JJA agreed, said at [55]: "This being so, this Court may infer that in some way there has been a failure properly to exercise the discretion which the law opposed in the court at first instance, if upon the facts the result embodied in the order for apportionment was unreasonable or plainly unjust; House v The King (1936) 55 CLR 499 at 505." 153 It may, I think, be properly inferred from his short remarks that Judge Bishop attached real significance to the "long period of time" to which he referred as opposed to the single act of bad workmanship. 154 In any event I do not think that the matters urged in the Council's submissions weigh against the long period of time that the obvious (in daylight) damage remained in place so as to establish that the Judge's decision was unreasonable or plainly unjust. 155 As was observed by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493:

[87]

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months." 160 Judge Bishop, having dealt with an argument based upon another requirement of s 15, which has not been relied upon in the appeal, summarised the view he took as to both past and future care as follows: "For past care the plaintiff seeks the sum of $8,190, being 17.5 hours per week for 26 weeks at $18 per hour plus three years to date at 7 hours per week deducting 7 months for treatment for the unrelated conditions. Bearing in mind the length of time that was involved for the sinus on the plaintiff's wound to heal, I consider that the plaintiff's claim for past care ought to be accepted. The plaintiff's [claim] for future care is for 6 hours per week. I am of the opinion that this figure should be discounted. In coming to that view I am influenced by the remarks of Hodgson JA in Matchan v Lyons (2003) NSWCA 3834 at paras 4 and 5. In my view the discount is appropriate for what His Honour referred to as the "fair give and take of family life", particularly as the plaintiff and her husband approach their retirement years. An appropriate allowance in my view would be 4 hours per week." 161 The contention that a future allowance of four hours a week would attract the prohibition contained in ss 15(3)(a) was not raised before Judge Bishop. However, Mr Williams, correctly, did not submit that it was not available on the appeal. (See Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Coulton & Ors v Holcombe & Ors (1986) 162 CLR1). 162 However, Mr Williams did submit that, in the events that had happened in respect of past entitlement to care expenses, the prohibition has no application to Mrs McGregor's situation. She had, he submitted, passed the "threshold" provided by the subsection and was accordingly not prohibited from recovering in the future for assistance of less than six hours per week. 163 In Geoghan v D'Aubert [2002] NSWCA 260 Stein JA, with whom Handley JA and Foster AJA agreed, considered the proper construction of s 72(2) of the Motor Accidents Act 1988. That subsection is in identical terms to subsection 15(3). 164 In Geoghan Stein JA accepted that "a strict legal construction would likely produce the answer that no compensation is payable if the services are provided for less than six hours and for less than six months. However, if services are provided, for example for five hours but for more than six months, that is no bar to recovery." 165 However, he preferred an alternative construction that no compensation is recoverable if the services are provided for less than six hours per week and no compensation is recoverable if the services are provided for less than six months. 166 His Honour preferred that construction on extrinsic material be considered, the legislative history of s 72 and the object provisions of the Motor Accidents Act 1988. 167 Whilst not all those features apply identically to the Act the purpose of limiting damages clearly does and the section should be given the same construction in the Act. (Lennon v Gibson and Howes Ltd (1919) AC 709 at 711-12). 168 Mr Williams did not submit otherwise. Indeed he drew attention to the circumstance that the Premier in his second reading speech introducing the Act merely observed that this provision was drawn from the motor accidents and health liability schemes. (Hansard Parliamentary Debates Legislative Assembly (2085). 169 Further, Mr Williams expressly did not contend that Geoghan had been wrongly decided but submitted that it could be distinguished in that in that case the plaintiff had not received relevant assistance which had crossed the "threshold". 170 Mr William's concept of a "threshold" is drawn from references in Parliamentary speeches relating to the Motor Accidents (Amendment) Bill 1993. The material is collected and the point made in the second reading speech of the Attorney-General when he said:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (94 paragraphs)

Parties

Cases Cited (14)