ROADS AND TRAFFIC AUTHORITY v RYAN; BLUE MOUNTAINS CITY COUNCIL v RYAN

Court of Appeal (NSW)|2004-11-04|Before: Mason P, Sheller JA, Bryson JA, Dunford J

Introduction On 9 July 1994, Nadia Ryan (the plaintiff), who was then 9½ years old, was seriously injured when struck by a motor vehicle being driven by Jack Pledge (Mr Pledge). The accident occurred on a service road adjoining the Great Western Highway at Blaxland. The plaintiff, who was in the company of her father and sister, was struck after she stepped on to the service road from the nature strip which divided the highway and the service road. She instituted proceedings against Mr Pledge alleging negligence in his driving of the motor vehicle and against the Blue Mountains City Council (the Council) and the Roads and Traffic Authority (RTA). Against the Council and the RTA, or its predecessors, she alleged negligence in the design, construction, management and maintenance of the service road and of the nature strip, particularly in planting and in failing to maintain by pruning shrubs the foliage of which prevented Mr Pledge from seeing the plaintiff and the plaintiff from seeing Mr Pledge as the plaintiff moved to step off the nature strip. 3 The proceedings were heard by Dunford J, who gave judgment on 10 April 2001. His Honour found each of the three defendants guilty of negligence. His Honour held that Mr Pledge was driving the motor vehicle at an excessive speed in all the circumstances and had failed to keep a proper lookout when he should have adverted to the possibility of a pedestrian emerging from the shrubs on the nature strip. 4 Because there is some dispute about the issues now before this Court, it is necessary to recite that part of Dunford J's reasons for judgment which dealt with the plaintiff's case against the Council and RTA. His Honour said: "26 ... As already observed, the vegetation on the nature strip was wooded in varying degrees by a number of shrubs and trees. These in places extended up to the kerb of the service road, in places overhanging it and in other places actually extending into the gutter. Such shrubs are depicted in a number of photographs, particularly Ex. C taken on the day of the accident, and as already noted this foliage had a tendency to restrict the view by a driver on the service road of pedestrians on the nature strip and vice versa. 27 It was also submitted that, having regard to the surrounding features, steps should have been taken to restrict or prevent pedestrians crossing the service road except at the continuation of the pedestrian crossing of the highway where motorists would be more likely to expect them, that the construction of the 90° angle parking bay outside the hardware store in a place where the service road was too narrow for that purpose created a potential hazard which distracted drivers from keeping a proper lookout, and finally, that taking all these considerations into account, signs should have been erected to warn drivers and/or pedestrians of the danger. 28 In relation to these matters a number of witnesses gave evidence, namely Mr Wingrove (consultant transport engineer), Mr Grewcoe (horticulturist / arborist), Mr Winning (traffic engineer), and in addition there were the reports of Mr Richmond (highway engineer) (Ex. G). Mr Richmond's were admitted over objection (see my judgment of 31 January 2001) but it later appeared that the third defendant's solicitors had given notice to the first defendant's solicitors that he was required for cross-examination whereupon Mr Garling, senior counsel for the first defendant, said he would not be submitting that Mr Richmond's opinions were not challenged by the third defendant. 29 Ultimately this appears to me to make no significant difference as there was little, if any, disagreement between the various experts on what constituted acceptable road construction and maintenance practice in relation to the matters relevant to the case. 30 Some issue was raised as to whether it was foreseeable that pedestrians would cross the nature strip and the service road in the area that the plaintiff and her father did on the day in question when there was the controlled pedestrian crossing of the highway located some 40-50 metres south of Coughlan Road with the paved area of the nature strip on its eastern extremity and the high post and rail fences at that point which had the purpose and capacity of "storing" pedestrians there, so that they would tend to cross the service road at that point. 31 However, bearing in mind that the Blaxland High School was located on the northern side of Coughlan Road, it could be anticipated that at times students and others would cross the highway form [sic] the northern kerb of Coughlan Road, through the gap in the arc weld fence on the highway median strip at the intersection across the eastern side of the highway, through the low post and rail fence at the western edge of the nature strip, across such strip and then across the service road, particularly if heading to homes on the eastern side of the service road. See also Mr Wingrove's report para 19. 32 In addition it could be foreseen that the hardware store would generate customers and not all would arrive by car and park in the 90° angle parking bay. There was no restriction on parking on either side of the highway in the breakdown lane (as the Ryan family did on the western side) and persons parking in that area would be unlikely to walk to the controlled crossing. Indeed in the case of those who might park their cars on the eastern side of the highway they would have no reason at all to walk down to the crossing and the gaps in the low post and rail fence invited them to walk across the nature strip to the service road. Such forseeability is confirmed by the existence of what was described as the "well trodden track". 33 Having regard to the problem of headlight glare from oncoming traffic, particularly on the left hand side as between Sydney bound traffic on the highway and north bound traffic on the service road, it was appropriate and necessary to provide some form of screening, and vegetation is a generally acceptable form of such screening. However, the Guidelines (Exs. 17A and 17B) as well as the expert opinions of Messrs Richmond and Winning make it clear that such vegetation screening should not extend up to, or over the kerb as this did, but should be set back so that pedestrians intending to cross the road are clearly visible to drivers of approaching vehicles and are not obscured by the foliage, and likewise approaching vehicles are visible to the pedestrians. I am satisfied that the vegetation on the nature strip in this area did not meet these standards; it was too dense, and too close to the kerb, at times actually extending beyond the kerb onto the carriageway itself. 34 The plans prepared by the Department of Main Roads (Ex. N1) in fact showed the foliage overhanging the carriageway of the service road. Whilst these may have been intended to represent trees overhanging at a considerable height above ground, there is no border back from the kerb so as to provide a proper sight line of and for pedestrians. Mr Winning, formerly employed by the Roads and Traffic Authority, described such plans as "inadequate" and potentially dangerous. He said that no traffic authority would plant vegetation intending it to grow over the carriageway or to reduce the sight distances on the carriageway (T 482). He said that if he had been presented with such a plan he would have rejected it; and he agreed that when vegetation was planted on a nature strip it should be planted so as to ensure that either at maturity or by means of pruning there should be left a clear space between the vegetation and the kerb (T 483). 35 Although the Guidelines Exs. 17A and 17B (1987 and 1982) specify 1 metre clearance from the kerb to the trunk of the shrub, they also make clear that the foliage must not restrict sight distances between road users. 36 Moreover, as Mr Grewcoe the horticulturist explained, the types of shrubs used were in many cases such as would grow and thicken up, and consequently a proper program of maintenance and pruning was required. There was apparently no such program and they were not pruned until after, and almost certainly as a result of, the plaintiff's accident. 37 It was submitted that there should have been some form of barrier type fencing to prevent pedestrians crossing the nature strip except from the holding bay at the eastern extremity of the controlled crossing. I do not consider this would have been necessary if the vegetation necessary to prevent the headlight dazzle had been planted an appropriate distance back from the kerb and been properly maintained; but as an alternative a solid screen type fence could have been placed on the median strip effective so as to both prevent the passage of pedestrians and screen the headlight glare; or an arc weld type fence similar to that on the highway median strip could have been erected along the nature strip and vegetation planted as was in fact done to limit the headlight glare. 38 As it happened, the vegetation planted where it was and allowed to grow as thick as it did in an area where it was foreseeable that pedestrians would cross, significantly restricted the vision of the first defendant, particularly in circumstances where his attention was distracted by the traffic movements associated with the parking bay. Accordingly I am satisfied that the public authorities responsible for the design and construction of the nature strip and the planting and maintenance of the vegetation on it were guilty of negligence which contributed to the plaintiff's accident. 39 The other major matter of contention in relation to the road design was the provision of the parking bay providing parking for vehicles at 90° outside the hardware store on the eastern side of the service road. Australian Standard 1742, Part 2-1978 (Ex. P) provided that a relevant consideration for the provision of 90° angle parking was the width of the carriageway (Clause 14.3.3 and Fig. 14.6) and the 1993 standard was in similar terms. 40 Having regard to those standards and the opinions expressed by the expert witness Mr Wingrove, I am satisfied that, as the service road was only 7.4 metres wide from kerb to kerb, it was negligent design to provide for 90° angle parking, because in those circumstances vehicles reversing out of the parking bay, even if intending to travel south on the service road, necessarily had to back out onto the northbound (or opposite) side of the service road. This created a potential hazard for drivers proceeding north on the service road when a vehicle was backing out of the bay in that it distracted them from other matters requiring their attention directly ahead, particularly the possibility of pedestrians moving off the nature strip to cross the road, which I am satisfied is exactly what happened to the first defendant in this case. 41 Having regard to the likelihood of pedestrians crossing the service road from the nature strip in the vicinity of the hardware store, the density and closeness to the kerb of the foliage on the nature strip and the location of the 90° parking bay on the narrow service road, I am also satisfied that there was a need of warning signs or a notice limiting the speed of vehicles (or directing them to proceed slowly) etc." 5 Dunford J gave judgment shortly before the High Court published its decision in Brodie v Singleton Shire Council (2001) 206 CLR 512 (31 May 2001). His Honour said: "42 Although a highway authority is not liable for mere failure to repair or maintain the highway (non-feasance), it is liable if it does work and such work is done negligently so as to create a danger which did not previously exist and which results in injury to a plaintiff: Buckle v Bayswater Road Board (1936) 57 CLR 259, Gorringe v Transport Commission (Tas.) (1950) 80 CLR 357 at 363, Webb v State of South Australia (1982) 56 ALJR 912, Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232, Lake Macquarie City Council v Bottomley [1999] NSWCA 28. The construction of the service road, including the 90° angle parking bay road, and the planting of trees and shrubs on the nature strip were all instances of misfeasance and consequently the public bodies who carried out such work are liable for any consequences arising from any negligence in the carrying out of such work. 43 Moreover the immunity for non-feasance does not apply to the non repair of artificial structures, including trees, planted near the highway but not forming part of the road surface itself which because of lack of maintenance become dangerous with the passage of time: Donaldson v Municipal Council of Sydney (1924) 24 SR 408, Hughes v Hunters Hill Municipal Council at 236; such failure constitutes misfeasance, so the second and third defendants cannot claim immunity in respect of the failure to prune and maintain the shrubs and trees on the nature strip. 44 It was submitted that the non-feasance immunity only extends to a public authority acting as highway authority exercising its powers as such to build, maintain and repair roads, and does not extend to a public authority acting as traffic authority: Turner v Ku-ring-gai Municipal Council (1990) 12 MVR 321, 72 LGRA 60 but that exception seems to apply only in respect of mandatory speed signs and not in the case of advisory speed signs (which is what is in issue here) where the ordinary misfeasance/non-feasance rule applies: Gloucester Shire Council v McLenaghan [2000] NSWCA 208 at [72]. 45 It was submitted on behalf of the second defendant that because councils have limited funds it was necessary to consider the resources it had to determine whether it was reasonable to spend money on this service road and nature strip, but as the Court of Appeal pointed out in Hughes v Hunters Hill Municipal Council at 236-7, although the limited resources of public authorities may have been the rationale for the immunity for non-feasance, the authorities have clearly established liability for misfeasance without regard to an examination of resources - contra Powell JA, dissenting, in Gloucester Shire Council v McLenaghan . 46 The second and third defendants also sought to avoid liability on the ground that they owed no duty to the plaintiff because of their failure to exercise the statutory powers vested in them by the Roads Act 1993 , ss 145 and 146, or as occupiers of the roadway; and reference was made to cases such as Perre v Apand Pty Ltd (1999) 198 CLR 180, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, Sutherland Shire Council v Heyman (1985) 157 CLR 424, Pyrenees Shire Council v Day (1998) 192 CLR 330, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Stovin v Wise [1996] AC 923. But none of these cases concerned the liability of highway authorities for the condition of the highway, which is different to, and is not based on, the duties of occupiers to persons entering on land, and the extent of their duty in relation to the exercise of their statutory powers as highway authorities is defined by the misfeasance/non-feasance rule: Buckle v Bayswater Road Board per Dixon J at 280-4. In Stovin v Wise the bank which constituted the danger by obscuring the view was on adjoining private land, and not on the highway itself. 47 For these reasons I am satisfied that each of the second and third defendants are liable to the plaintiff as they were both concerned in bringing about the circumstances which, together with the negligence of the first defendant, led to the plaintiff's injuries." 6 Dunford J found that the plaintiff should have been aware of the need to be careful when, and to look both ways before, crossing a road, and said that indeed the plaintiff had been taught to do so. His Honour was satisfied that she left the grip of her father's hand and stepped on to the service road without looking. "On the other hand, she probably did not realise that because of the trees and shrubs, the density of the foliage and the narrowness of the service road there was a need to pay even more attention to looking than in the ordinary case. In all the circumstances I assess her responsibility for her injuries at 10%." 7 Dunford J found that the provision of the service road and nature strip was part of the widening and upgrading of the Great Western Highway. The design of the service road and the nature strip, including the tree planting plan, was the work of the RTA and its predecessor, the Department of Main Roads. On the other hand, the design of a parking bay which, in his Honour's opinion, contributed to the problem, was the work of the Council. By agreement between the Council and the RTA the responsibility for maintaining the nature strip designed and planted by the RTA as part of the widening and reconstruction of the highway was, after a six month period, entrusted to the Council, which carried out some maintenance and pruning but failed to do it properly or adequately. 8 Further, his Honour said that having created the danger against which the nature strip was directed (headlight glare) the RTA was not able to avoid liability by delegating its responsibility for the maintenance of the nature strip. His Honour held that the responsibility for the plaintiff's injuries should be apportioned between the defendants as 50 per cent to Mr Pledge, and 25 per cent to each of the Council and the RTA. 9 Damages were agreed at amounts which the trial Judge considered reasonable and approved. At common law they were agreed at $4,125,000 and as recoverable under the Motor Accidents Act 1988, as in force on 9 July 1994, the date of the accident, (the MAA), at $3,250.000. Dunford J held that although the damages recoverable against Mr Pledge had to be assessed in accordance with the MAA the damages against the Council and RTA did not and were assessable under the common law. His Honour referred to Rouse v Shepherd (1994) 35 NSWLR 250 at 253 and Bitupave Ltd v Bollington (1998) 28 MVR 223 at 229. On the other hand, on the cross-claims by each defendant against each of the other defendants, Mr Pledge submitted that he could only be liable to the other defendants for the relevant proportion of the MAA assessment. The other defendants claimed that they could recover from Mr Pledge the relevant proportion of common law damages. 10 Dunford J referred to the decision of Wood CJ at CL in Lanza v Codemo [2001] NSWSC 72 and to Unsworth v Commissioner of Railways (1958) 101 CLR 73 and Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199. Dunford J was satisfied that the effective cap on the liability of Mr Pledge was the amount of damages after reduction for the plaintiff's contributory negligence, namely $2,925,000. This was consistent with the objects of the MAA which included keeping premiums to an acceptable level by limiting the amount of damages payable under the compulsory third party policy under that Act. If he were ordered to pay contribution assessed on a common law basis in excess of his liability under the MAA, he would not be insured in respect of such excess. His Honour continued: "64 As I understand the first defendant's submissions, he submits that he should only be ordered to make contribution to the extent of the relevant proportion of the MA Act damages, and not the relevant proportion of common law damages capped by the MA Act damages. Although the matter is not free from doubt, I feel that in this regard I should adopt the position indicated by Wood CJ at CL in Lanza v Codemo and allow the relevant proportion of common law damages capped by the amount of the first defendant's liability under the MA Act . 65 Accordingly, on the Third Cross-Claim (Pledge v Blue Mountains City Council) there will be an order for contribution of 25% of $3,712,500, namely $928,125, and a similar order on the Fourth Cross-Claim (Pledge v Roads and Traffic Authority). 66 On the Sixth Cross-Claim (Roads and Traffic Authority v Pledge) there will be an order for contribution for 50% of $3,712,500 namely $1,856,250 (the cap on the first defendant's liability being in the particular case irrelevant), and on the Seventh Cross-Claim (Roads and Traffic Authority v Blue Mountains City Council) there will be an order for contribution for 25% of $3,712,500 namely $928,125. 67 On the Eighth Cross-Claim (Blue Mountains City Council v Pledge) there will be an order for contribution for $1,856,250 and on the Ninth Cross-Claim (Blue Mountains City Council v Roads and Traffic Authority) an order for contribution for $928,125." 11 In the end result, if the RTA were to pay the plaintiff the amount of the verdict against it, namely $3,712,500, the RTA would recover by way of contribution from Mr Pledge $1,856,250 and from the Council $928,125 leaving it with a net liability of $928,125. Significantly, Mr Pledge would pay $1,856,250, half of the common law verdict. If his liability was limited to contributing 50 per cent of the verdict recoverable against him under the MAA, his contribution would be $1,462,500.

First appeal hearing - Court of Appeal 12 Both RTA (No 40334/01) and the Council (No 40335/01) appealed from Dunford J's decision to this Court. The RTA's amended grounds of appeal were: "1. His Honour was in error in holding that the 'RTA' was liable to 'Ryan'. 2. That his Honour was in error in holding that the 'RTA' was negligent in the design and construction of the nature strip and in the planting and maintenance of the vegetation. 3. That his Honour was in error in holding that it was foreseeable that 'Ryan' would cross the nature strip and service road in the area that she and her father did on the day in question. 4. That his Honour was in error in holding that there was a need for warning signs or a notice limiting the speed of vehicles on the service road. 5. That his Honour was in error in apparently holding the 'RTA' liable for the provision of 90 degree angle parking on the service road. 6. That his Honour was in error in apportioning equal liability between the 'RTA' and the 'Blue Mountains'. 7. That his Honour was in error in his apportionment of 50% to 'Pledge', 25% to the 'RTA' and 25% to the 'Blue Mountains'. 8. His Honour erred in finding that damages payable by the appellant should not be assessed pursuant to the Motor Accidents Act 1988 (as amended)." 13 The Council's grounds of appeal were: "1. His Honour erred in finding that the extent of the common law duty of care in relation to the exercise of the appellant's statutory powers as a highway authority, was defined by the misfeasance/non-feasance rule. 2. His Honour erred in finding that the first respondent's injuries, loss and damage were caused by the appellant's breach of a common law duty owed by the appellant to the first respondent. 3. His Honour erred in apportioning responsibility for the first respondent's injuries: 50% to the second respondent, 25% to the appellant; and 25% to the third respondent. 4. His Honour erred in finding it was foreseeable that pedestrians would cross the nature strip and service road at the site which the first respondent and her father crossed on 9 July 1994. 5. His Honour erred in finding that as a public authority [sic] was responsible for the design and construction of the nature strip and the planting and maintenance of the vegetation on that nature strip the appellant was negligent. 6. His Honour erred in finding that the appellant was negligent in its design of the 90 degree angle parking outside the hardware store on the western side of the service road. 7. His Honour erred in finding that the appellant was negligent in failing to provide warning signs or a notice limiting the speed of vehicles (or directing them to proceed slowly). 8. His Honour erred in finding that the shrubs on the nature strip between the highway and the service road were pruned almost certainly as a result of the first respondent's accident. 9. His Honour erred in finding that the vegetation on the nature strip between the highway and the service road did not meet the relevant standards. 10. His Honour erred in rejecting the admission of oral and documentary evidence relating to the appellant's common law duty and any breach of that duty. 11. His Honour erred in finding that the limited resources of a public authority is not a rationale for determining whether a public authority in the position of the appellant owes a common law duty of care or a rationale for determining whether there has been a breach of that duty. 12. His Honour erred in finding that damages payable by the appellant should not be assessed pursuant to the Motor Accidents Act 1988 (as amended)." 14 Mr Pledge cross-appealed against the Council and the RTA on the following grounds: "1. That his Honour erred as a matter of law in assessing the basis for calculation of the contribution recoverable by the First and Second Cross Respondents against the Cross Appellant at Common Law and not pursuant to the Motor Accidents Act 1988; 2. That his Honour erred as a matter of law in assessing the basis for calculation of the contribution recoverable by the First and Second Cross Respondents against the Cross Appellant other than pursuant to the Motor Accidents Act 1988; 3. That his Honour erred as a matter of law in finding that the Motor Accidents Act 1988 conferred a right of contribution upon co-tortfeasors against a Motor Accidents Act insurer." 15 On 10 April 2002, this Court upheld the appeals, set aside the judgment in favour of the plaintiff against RTA and the Council for $3,712,500 and ordered judgment in favour of the RTA and the Council against the plaintiff. The Court also set aside the orders made in regard to the cross-claims and dismissed the cross-claims. There was on this basis no need to consider the cross-appeals. Further orders relating to costs were made by the Court of Appeal on 16 May 2002.

Appeal to High Court 16 Pursuant to special leave granted on 14 March 2003, both Mr Pledge (S122 and S123/03) and the plaintiff (S124 and S125/03) appealed to the High Court from this Court's decision on the Council's appeal and the RTA's appeal. On 11 March 2004 the High Court allowed the appeals with costs and made these orders (Pledge v Roads and Traffic Authority (2004) 78 ALJR 572): "2. Judgment and orders of the Court of Appeal of the Supreme Court of New South Wales on 10 April 2002 set aside. 3. Matter remitted to the Court of Appeal to determine re-apportionment of liability among the respondents to the second appeal and other matters that were before the Court of Appeal but not dealt with in its judgment including the matter of costs in that Court." 17 In their joint judgment, Callinan and Heydon JJ, with whom McHugh ACJ and Kirby and Hayne JJ agreed, said at 577-8: "[30] The RTA and the Council appealed to the Court of Appeal (Meagher and Giles JJA and Ipp AJA) against the findings of negligence against them, and in respect of some other currently non-relevant matters. Mr Pledge cross-appealed, but only as to the extent of the contribution assessed against him. [31] The Court of Appeal allowed the appeals by the RTA and the Council for reasons given by Ipp AJA with whom the other members of the Court, with one minor exception stated by Giles JA, agreed. These were, first, that for some significant distance before the point of impact Mr Pledge's vision was not affected by the vegetation on the nature strip. Secondly, any failure of the RTA and the Council to clear the vegetation on the nature strip to the extent of 1 metre as suggested by non-binding guidelines did not cause the collision. Thirdly, failure by the Council to erect warning signs of any kind would not have caused Mr Pledge to drive in any different manner from the way in which he did. And fourthly, the finding that the provision of 90 degree angle parking bays was negligent was not 'justified', as the presence of the bays was not a causative factor in the collision."

Hayne J observed at 574: "[8] … It was the Council which designed and permitted the use of off road parking, at 90 degrees to the direction of travel, in bays beside the service road. …" 18 In the High Court, Mr Pledge's grounds of appeal in both his appeals were: "1. The Court of Appeal erred in overturning the factual findings of the trial Judge, Dunford J, and in substituting its own factual findings, without determining that in making those findings the trial Judge had misused the advantage which he had as a result of undertaking a demonstration and inspection of the accident scene. 2. The Court of Appeal erred in rejecting the evidence of witnesses, or else making findings of fact contrary to their evidence, where the evidence of those witnesses had not been challenged during the trial. 3. The Court of Appeal erred where the trial Judge had accepted those witnesses as being honest, truthful and their evidence as accurate."

Mr Pledge sought orders in both appeals that the judgment and orders of the Court of Appeal on the appeal and cross-appeal be set aside, that the appeals of RTA and the Council to the Court of Appeal be dismissed and that the hearing of Mr Pledge's cross-appeal to the Court of Appeal be remitted to the Court of Appeal for hearing and determination. 19 The plaintiff's grounds of appeal in both appeals to the High Court were: "1. The New South Wales Court of Appeal erred in substituting its opinion that vegetation would not have impeded vision for the opinion of the Trial Judge based upon photographic evidence, oral evidence from witnesses (substantially unchallenged) and a view of the scene. 2. The New South Wales Court of Appeal erred in substituting its opinion as to the effect of vegetation based upon some of the photographic evidence for that of the Trial Judge based upon the whole of the evidence. 3. The New South Wales Court of Appeal erred in failing to accord to the Trial Judge the advantage in respect of acceptance of witnesses required by Abalos v Australian Postal Commission (1999) 171 CLR 167. 4. The New South Wales Court of Appeal erred in holding that non-compliance with the Australian Standard in respect of parking and with the Roads and Traffic Authority's own standard in respect of vegetation did not constitute negligence by both the Council and the Roads and Traffic Authority. 5. The New South Wales Court of Appeal erred in finding that a warning sign as to speed would have been disregarded by a motorist who was complying with the existing speed limit. 6. The NSW Court of Appeal erred in overturning the judgment against the Council and the Roads and Traffic Authority. 7. The New South Wales Court of Appeal erred in finding that it is fair and appropriate that Nadia Ryan and Jack Pledge bear equal liability for the Council's and Roads and Traffic Authority's costs of the Trial and Appeal."

The plaintiff sought that the judgment of the Court of Appeal be set aside and the judgment at first instance reinstated. 20 In each of the four appeals in the High Court the Council filed a notice of contention or an amended notice of contention setting out these grounds: "1. That the extent of the Common Law duty of care in relation to the existence of the Council's statutory powers as a highway authority was not defined by the misfeasance/ non feasance rule. 2. That it was not foreseeable that pedestrians would cross the nature strip and service road at the site at which the Third Respondent (the Plaintiff) and her father crossed on 9 July 1994. 3. That the Council had not breached its duty of care to the Plaintiff in failing to provide warning signs or a notice limiting the speed of vehicles (or directing them to proceed slowly). 4. That the pruning of shrubs on the nature strip between the highway and the service road was not as a result of the Plaintiff's accident. 5. That the vegetation on the nature strip between the highway and the service road met the relevant standards. 6. That the trial Court erred in rejecting the admission of oral and documentary evidence relating to the Council's Common Law duty and any breach of that duty. 7. That the limited resources of a public authority is a rationale for determining whether a public authority in the position of the Council owes a Common Law duty of care or has breached that duty of care. 8. That the Council did not breach any duty of care it owed to the Plaintiff. 9. In the event that the Council is held liable to the Plaintiff, it contends that: a. any damages which the council is liable to pay should be assessed pursuant to the Motor Vehicles Act 1988 (as amended); b. its responsibilities for injuring the Plaintiff should be less than 25% for the purposes of the Law Reform (Miscellaneous Provisions) Act 1946 (as amended)."

The Council also sought special leave to cross-appeal on similar grounds.

21 In his judgment in the High Court, McHugh ACJ said at 573: "[1] The facts and the issues in these appeals are set out in the judgment of Callinan and Heydon JJ which I have had the advantage of reading. Their Honours hold that the Court of Appeal of New South Wales erred in three respects in exculpating the Roads and Traffic Authority of New South Wales and the Blue Mountains Council from responsibility for the harm suffered by the plaintiff. They were: (1) no proper basis for preferring observations of the photographic exhibits to the oral evidence of four witnesses whose evidence was accepted by the trial judge; (2) reliance on time, speed and distance calculations that involved so many imponderables as to make the calculations little more than speculation; (3) failing to give sufficient weight to the advantage that the trial judge enjoyed by viewing the scene of the accident. [2] For the reasons given by Callinan and Heydon JJ, the Court of Appeal erred in these three respects. It follows that these appeals must be allowed and the matters remitted to the Court of Appeal to re-apportion liability between the three defendants and to determine the issues not dealt with by the Court of Appeal in the appeal to that Court."

At 574, Kirby J said: "[3] I agree, for the reasons given by Callinan and Heydon JJ, that error has been shown on the part of the Court of Appeal of New South Wales in exculpating the Roads and Traffic Authority of New South Wales and the Blue Mountains Council from responsibility for the damage suffered by the plaintiff. I also agree with the additional reasons of Hayne J and his analysis of the issues raised in these appeals. [4] It follows that I agree that the appeals must be allowed with costs. The proceedings must be remitted to the Court of Appeal to determine the outstanding issues and to reapportion liability between the three defendants in the light of the conclusions of the Court of Appeal with which this Court has agreed. These are the lack of causative negligence in (1) the absence of the propounded traffic sign; and (2) the provision of parking bays at an angle of 90 degrees to the service road." 22 Hayne J, who agreed with Callinan and Heydon JJ that the appeal should be allowed with costs and the matters remitted to the Court of Appeal and generally with their Honours' reasons said at 574-6: "[8] … The state of the foliage on the median strip had been brought about by either or both of the Roads and Traffic Authority of New South Wales (the RTA) or the Blue Mountains Council (the Council). (Whether it was the RTA or the Council which was, or both [of] which were, responsible for the state of the foliage will have to be determined on remitter of the matter to the Court of Appeal. So too will any question of apportionment of that responsibility). … … [14] The issue about the parking bays may be contrasted with the foliage on the median strip. The foliage was as obvious as were the parking bays, But what was not obvious was that pedestrians could and did cross the median strip at an otherwise unmarked point in the strip. And as they did so, they were hidden from the view of drivers approaching that point, and cars were hidden from the pedestrians' view. It was the presence of the foliage (in its then state) which hid pedestrian from driver, and vehicle from pedestrian. … [16] It was well open to the trial judge to conclude that, had the foliage been less, Mr Pledge's attention would have been attracted to the pedestrians and the accident avoided or the impact lessened. … [18] In the Court of Appeal, the absence of signs was understood to present two issues: one about breach of duty and the other about causation. Ipp AJA concluded that it was 'questionable' whether the Council was duty bound to have erected a sign of the kind suggested but that 'there were insufficient grounds to hold that a sign of the kind postulated would have caused [the driver] to drive in any different way'. I, too, would very much doubt that not to erect a sign of the kind suggested was a breach of any duty owed by the Council to the injured pedestrian. But whether or not that is so, there was no evidence that the presence of a warning sign would have affected the way in which the driver drove on this day. There was, therefore, no basis in the evidence for concluding that the absence of a sign was a cause of the accident. And there was, in any event, no finding that the Council was negligent in failing to provide signs of the kind discussed. [19] These conclusions do not dispose of all the issues that were raised in the proceedings in the Court of Appeal. As between the Council and RTA there remains undecided in this Court what role each played in designing or maintaining the foliage on the median strip. What has not been determined, therefore, is what responsibility each had for the state of the foliage at the time of the accident. That will be a matter for the Court of Appeal. It follows that whether the amount of any damages which the Council may otherwise be liable to pay is affected by Pt 6 of the Motor Accidents Act 1988 (NSW) is a question for the Court of Appeal. It also follows that apportionment of responsibility between the parties found to have been negligent is a matter which should be determined by the Court of Appeal. Finally, Mr Pledge's cross-appeal to that Court remains undecided."

Mr Pledge's cross-appeals were directed only to the contribution assessed against him being calculated by reference to the damages at common law awarded against the Council and the RTA and not by reference to the damages recoverable against him under the MAA. 23 Callinan and Heydon JJ said at 583: "[50] We would allow the appeals. But that does not mean that the trial judge's apportionment should necessarily stand. His Honour does seem to have had regard to the absence of a sign, and the provision of angle parking as negligent, and causative factors. Because in our opinion they were not, re-apportionment of negligence as between Mr Pledge, the RTA and the Council should now be made. Other issues arose before the Court of Appeal. The identification of the issues that remain to be determined and their resolution should be left to the Court of Appeal. As the Court of Appeal will need to decide these in any event, and because some of them relate at least to the respective obligations and liabilities of the RTA and the Council inter se, it is better that the Court of Appeal undertake any re-apportionment of liability rather than this Court. [51] Each appeal should be allowed with costs. The judgment of the Court of Appeal of the Supreme Court of New South Wales should be set aside. The proceedings should be remitted to the Court of Appeal for reapportionment of liability among Mr Pledge, the RTA and the Council consistently with the decision of this Court and for the determination of the other issues before, and not decided by, the Court of Appeal, including the costs to date in the Court of Appeal having regard to the decision of this Court." 24 To these extents the appeals by RTA and the Council and the cross-appeals by Mr Pledge are now before the Court again pursuant to the remitter from the High Court.

The facts of the accident 25 The relevant facts were stated by Callinan and Heydon JJ as follows: "[21] The Great Western Highway (the Highway) passes through the town of Blaxland in New South Wales. It consists of a service road, about 7.4 m wide, a fairly densely planted nature strip about 3.4 m wide bisected by an almost continuous post and rail fence, two traffic lanes for Sydney bound traffic and two traffic lanes for Katoomba bound traffic. Coughlan Rd forms a T-junction with the Highway on the side of the Katoomba bound lanes. On the side of the Sydney bound lanes, between them and the service road, was a well trodden path across the nature strip through a gap in the fence. It was that path that Nadia Ryan (the plaintiff) followed shortly before she was struck by a vehicle driven by the appellant, Mr Pledge. It was frequently used by other pedestrians to cross the service road. It was also located within comfortable walking distance of a marked pedestrian crossing on the Highway controlled by traffic lights. Off the service road was a car park which ran from a point level with the marked crossing and the T-junction on which parking at an angle of 90 degrees to the Highway was the practice. One of the purposes of the dense planting on the nature strip was to shield passing vehicles from the glare of headlights at night. [22] The provision of the service road and nature strip was part of a scheme for the widening and improvement of the Highway, and the design of the service road and nature strip were all the work of the Roads and Traffic Authority of New South Wales (the RTA). The Blue Mountains Council (the Council) was responsible for the maintenance of the nature strip. It had also designed the car park beside the service road. [23] During the afternoon of 9 July 1994 the plaintiff, who was then nine years old, her sister and their father, Mr Ryan, crossed from the Katoomba bound lanes of the Highway and reached the nature strip. They passed through the post and rail fence and paused momentarily. Mr Ryan said that he thought that they had stopped about 18 inches to two feet from the kerb of the service road. [24] It was then that Mr Ryan apparently released the plaintiff's hand. Mr Pledge was driving his vehicle in a northerly direction, towards Katoomba. His view of the family was partially obscured by vegetation. Mr Ryan's vision was also reduced. The plaintiff moved forward one or two steps. She was struck by Mr Pledge's vehicle. Mr Ryan had tried to grasp the plaintiff's hand immediately before the impact but missed it by about a foot. At this stage the plaintiff was the only one of the family who was on the road surface. [25] At the time of the accident another vehicle was reversing at an angle of 90 degrees from the car park in front of a hardware store."

High Court reasons for judgment 26 Callinan and Heydon JJ expressed the reasons for their conclusion as follows: "[44] There is no doubt that the Court of Appeal in this case strove to carry out its statutory appellate duty in accordance with the statements of principle that we have quoted. In our opinion it succeeded in doing so in discarding, as causative factors, the absence of any traffic sign, and the provision of parking bays at an angle of 90 degrees to the service road. The reasons for this are comprehensively stated by Ipp AJA. In addition, the proximity of parking bays to a service road is in no way remarkable. A service road is of quite a different character from an open highway. Motorists should proceed with caution along such a road because it necessarily will be used by motorists and their passengers proceeding to and from the establishments which it is designed to service. [45] We are unable to reach the same conclusion however with respect to the rejection by the Court of Appeal, of the nature, density and location of the vegetation on the nature strip as a causative factor of the collision. It cannot, in our opinion, be doubted that it was a contributing cause. It obscured not only the visibility of Mr Pledge, but also the visibility of the plaintiff and her father. Its presence inevitably brought the plaintiff close to the roadway before she could obtain any useful view of passing traffic. Similarly, its presence produced the same consequence for Mr Pledge with respect to any opportunity that he might have had to see the plaintiff. Its presence would also suggest to any motorist proceeding as Mr Pledge was, that any pedestrian would need to be, and would be, cautious in proceedings through and from it on to the roadway. It is no answer to say that Mr Pledge did not in any event see the plaintiff before the impact and that therefore the presence of the foliage was of no significance. The eye may be attracted by a shape, or a movement, or contrasting colour. Mr Pledge would have had a greater opportunity to catch a glimpse of these phenomena had the foliage been less dense. The denial of that opportunity, by reason of an obstruction in the form of the dense foliage, probably contributed to this accident. The denial of an opportunity, by the presence of an obstruction such as dense foliage, to catch a glimpse of these can and must necessarily have contributed, as the trial judge found, to this accident. … [47] First, their Honours had no sufficient basis for preferring what they thought the photographs showed to the evidence accepted by the trial judge and coming from several and opposed sources, namely the plaintiff's father, Mr Pledge, two police officers and an expert, Mr Wingrove. The circumstances of the accident themselves point strongly to that error. [48] Secondly, their Honours' reliance on the calculations that Ipp AJA made was unjustified. They depended on too many imponderables which were really little more than matters of speculation: estimates based on the plaintiff's father's evidence as to how long the plaintiff paused before she moved, and how long it took her to walk to the point of impact; that the appropriate extent of clearing of foliage should be 1 metre only, as indicated by the non-binding guidelines; Mr Pledge's estimated speed; the distance of his vehicle from the plaintiff as she stood on the nature strip before leaving it; and the effectiveness of Mr Pledge's attempts to decelerate. It is not irrelevant that the calculations in question were not sought to be made during the trial by any party where the assumptions upon which they were based could have been fully tested and explored. [49] The third error was the failure of the Court of Appeal to have sufficient regard to the utility of the trial judge's experiences in inspecting the site of the accident and driving along the road towards the accident site, particularly the enhanced utility accorded to it by s54 of the Evidence Act. Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, a case relied on by Mr Pledge, and which affirmed the special position of the trial judge, was a case in which the trial judge had enjoyed an analogous advantage, of an in-court demonstration. Even before the enactment of the Evidence Act , appeals courts customarily accorded significance to a demonstration or view at first instance. It was not accorded the weight that it deserved here. It is also relevant to the first error that has been identified. It must have supplied to the trial judge the valuable third dimension that the photographs necessarily lacked, and which formed the basis for much of the intermediate court's exculpation of the RTA and the Council." 27 The decision of this Court was, as Callinan and Heydon JJ pointed out, that the plaintiff had failed to demonstrate that the nature, density and location of the vegetation on the nature strip was a causative factor of the collision. As Ipp AJA, who gave the principal judgment in the Court of Appeal, said: "[52] The question raised by the RTA and the Council in this appeal is whether their failure to ensure that there was a cleared area of 1 metre at the eastern edge of the nature strip contributed to the collision."

At [66] Ipp AJA said that he considered that Dunford J erred in finding that the failure of the RTA and Council to clear the vegetation on the nature strip to the requisite degree caused the collision. His Honour then went on to deal with the Council's failure to erect a warning sign and negligence in providing parking bays on the eastern side of the service road at an angle of 90 degrees. At [80] Ipp AJA said that he considered the appeal should be upheld. "There is no need to deal with the other issues that arise and the cross-appeals fall away."

Second appeal hearing - Court of Appeal 28 The issues now before this Court were not agreed by all parties. In particular the Council, for whom Mr Joseph SC appeared, sought to put submissions about its liability in accordance with its notice of appeal to this Court claiming that it owed the plaintiff no common law duty of care, that it was not foreseeable that pedestrians would cross the nature strip and service road at the site where the plaintiff and her father crossed on 9 July 1994, that Dunford J erred in finding that the Council was responsible for the design and construction of the nature strip or for the planting and maintenance of the vegetation on that strip and that the trial Judge erred in finding that shrubs on the nature strip between the highway and service road were pruned almost certainly as a result of the accident. Further, the Council submitted that the trial Judge erred in rejecting the admission of oral and documentary evidence relating to its common law duty and breach of that duty. 29 Mr Joseph submitted, during argument, that, unlike counsel for the RTA, Mr Davies SC, the Council never admitted breach of duty in the High Court. It was submitted that Dunford J's determination that a simple lack of maintenance gave rise to a breach of a duty of care was wrong in law either before the decision in Brodie or after it. Further, it was submitted that, if the claim was in non-feasance, the Council had not been allowed to tender evidence in respect of its resources and therefore was prevented from running the defence which Brodie would have permitted. 30 Mr Joseph recognised that the Council's remedy, if in fact such evidence should have been admitted, was a new trial and not a verdict in its favour. Mr Joseph submitted that the Council wished to put before the Court evidence of its financial problems at relevant times, the backlog it had both in capital and maintenance work and the fact that it had had to reduce maintenance work by 19 per cent in the financial year in which the accident happened. Part of the evidence was that of Kenneth Anthony Schneiders, a senior constable of police called by the plaintiff, who was asked on behalf of the Council and as a ratepayer in the local government area whether, during the course of time, he had become aware of the extent of the demands on the Council for facilities it was required to provide to people such as Mr Schneiders and others in the local government area, a question objected to and rejected. 31 Other material was to be found in two documents tendered, rejected and marked for identification 9 and 10, the first a document of 30 October 1979 relating to the final cost of widening and strengthening certain pavement and the other a general submission dated February 1992 to the New South Wales Grants Commission indicating the backlog of capital works in the City of Blue Mountains Local Government Area and the shortfalls in recurrent maintenance funding. In this it was said to be shown that in 1992 only 71 per cent of the required level of funding could be provided for roads and drainage, a shortfall in funding since 1982 which was increasing annually and, in relation to parks, gardens and reserves, that in 1992 only 60 per cent of the level of funds required to maintain parks, gardens and reserves could be provided, a shortfall of $.67million. The works programme and detailed budget programmes of the Council for 1993 were part of the tender. These last documents were marked for identification 10. Marked for identification 11 was the annual report 1994/95 of the Council. 32 It is impossible to see how generalised and incomplete material of this sort could suffice to cover any of the matters for consideration described by Gaudron, McHugh and Gummow JJ in Brodie at 580-581 [162]: "The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authorities. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of materiel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question." 33 Mr Joseph submitted that the plaintiff bore the onus of proving that what the plaintiff alleged the Council should have done was reasonable. In my opinion, in a context where shrubs had been planted and had grown in a way which obscured drivers' visibility of pedestrians crossing the nature strip on a beaten track approaching a roadway, and the pedestrians' visibility of drivers, it was open to the plaintiff to claim that it was reasonable to expect the Council to prune the foliage regularly. However that may be, all that was put forward was evidence of some general shortage of money without any attempt in terms of the Council's responsibility, planning and priorities to demonstrate by evidence that financial constraints explained the fact that the foliage had not been regularly pruned. 34 In the course of these submissions the Court required Mr Joseph to decide whether or not he sought, on behalf of his client, a new trial, something not sought in the Council's notice of appeal. When the Court resumed hearing the appeals the next day, 5 November 2004, Mr Joseph indicated that his instructions were not to seek a retrial. However, he pressed the tender of the evidence rejected below to which the RTA, Mr Pledge and the plaintiff objected on grounds of prejudice. Dr Morrison SC, who appeared for the plaintiff at trial and on the appeals, pointed out that the particular matter had not been raised until after the close of the plaintiff's case and had not been pleaded or particularised. The Court rejected the application to tender the evidence on the appeal and said it would give its reasons later. 35 It would obviously be unfair to permit the Council to put in evidence and rely upon such material without the other parties having the opportunity to deal with it in oral evidence both from the Council's witnesses and their own. Thus, in the absence of any claim by the Council for a new trial, the evidence clearly should not be admitted on the appeal. Further, it was of doubtful weight bearing in mind what the High Court said in the passage I have quoted in Brodie. But there is a more important aspect of this. Callinan and Heydon JJ said [51] that the judgment of the Court of Appeal having been set aside the proceedings should be remitted to the Court of Appeal for reapportionment of liability among Mr Pledge, the RTA and the Council "consistently with the decision of this Court" and for the determination of other issues before, and not decided by, the Court of Appeal, including the costs to date in the Court of Appeal "having regard to the decision of this Court". 36 All parties agree that the issues now before this Court include questions of reapportionment of liability and questions about the impact of the MAA on the amount of contribution required of each of Mr Pledge, the RTA and the Council. It is doubtful whether the majority of the High Court intended that the liability of the Council to the plaintiff was a matter now to be re-agitated in this Court, particularly in the context that both the RTA and Mr Pledge accept liability; however, compare per Hayne J at 574 [8] which I have quoted above. In the course of the joint judgment, Callinan and Heydon JJ said: "[22] … the provision of the service road and nature strip was part of a scheme for the widening and improvement of the Highway and the design of the service road and nature strip were all the work of the … RTA. The Blue Mountains Council … was responsible for the maintenance of the nature strip. It had also designed the car park beside the service road."

A part of the Council's argument now is that it was not liable to the plaintiff because it has not been shown to have been so responsible. 37 Also the Council sought to raise a question about foreseeability. Mr Joseph made the point that the Council was not responsible for the planting of the offending vegetation. A map provided by the RTA with a date apparently in the late 1980s showed the existence of the highway boundaries. The service road and the nature strip were entirely within those boundaries. There was no evidence that this situation changed and no evidence of any handing over by the RTA to the Council. 38 Mr Winning, a consultant traffic engineer, called by the RTA, gave evidence that until a handover was effected, the constructing authority continued to maintain the highway and the shrubbery adjoining the highway. According to Mr Winning, it was only upon the handover of the highway to the local road authority that the local road authority took over the responsibility for such activities including the cutting back of shrubs and keeping the grasses level on the nature strip. A notice to produce was given to the RTA to produce documentation relating to such a handover. Nothing was produced. 39 Mr Joseph conceded that the Council had done work on both the nature strip and kerbed guttering and had power under the relevant Local Government Act to do so. 40 Mr Pledge's response to these submissions was that the case against the Council was never cast as being a failure to exercise a statutory power in the sense referred to in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, Sutherland Shire Council v Heyman (1985) 157 CLR 424 or Pyrenees Shire Council v Day (1998) 192 CLR 330. It was argued that the duty arose by reason of the active involvement of the RTA and the Council in the design, construction and maintenance of the service road including agreement between the RTA and the Council. Reference was made to what was said in the joint judgment in Brodie at 180 [150]-[151]. The duty which arises under the common law imposes upon authorities having statutory powers of the nature here in question to take reasonable care that their exercise or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons such as pedestrians which would include the plaintiff. 41 It was submitted that each of the RTA and the Council owed a duty to the plaintiff by reason of their active involvement in the design and construction of features of the service road adjacent to the place where the plaintiff was injured. Those features and that lack of maintenance of the vegetation created a situation in which the plaintiff and pedestrians generally were placed in a position of danger. The design and construction included the planting of the nature strip which involved the intentional introduction of artificial structures such as trees and shrubs on to the road reserve, and the negligent maintenance of the vegetation. Reference was made to Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232. Ongoing maintenance which was a constant and regular requirement was also a source of duty. 42 The design and construction work occurred in about 1985. The Council's Traffic Committee considered the state of the nature strip on at least two occasions and made recommendations to Council which it had acted upon. Such actions were not consistent with the Council having no responsibility for the nature strip. Both the RTA and the Council assumed responsibility for the nature strip by carrying out works on it before the accident. Shortly after the accident and no doubt in response to it the Council undertook extensive pruning to remove about 40 per cent of the vegetation between the pedestrian crossing and the Highway HHHHardware Store referred to by Dunford J as the building adjacent to the parking bay. 43 In written submissions, counsel for Mr Pledge set out a list of conduct which involved either or both of the RTA and the Council including a meeting on or about 16 December 1982 between two officers of the RTA and three engineers from the Council about the design and carrying out of landscaping. It was noted that the Council was to be approached by the RTA's predecessor for a quote to carry out landscaping work. The landscaping plans increased the density of the inter-planting in the area of the nature strip between the hardware store and the Great Western Highway. In October 1983 the Acting Divisional Engineer of the RTA wrote to the Council's Town Clerk enclosing the then current landscaping plans and seeking the Council's concurrence to the plans. In that document the Council was invited to carry out the landscaping work including the supply of all material and plants. The RTA was prepared to meet the cost of this work and the maintenance thereof for a period of six months. There was neither response nor demurrer by the Council recorded in the evidence. The planting was to be dense planting. It was submitted that the plans were inadequate and inappropriate having regard to the likely growth to maturity. Expert evidence to this effect was unchallenged. Such trimming as was necessary would be a relatively routine task for either the RTA or the Council. On several occasions before the accident the Council undertook maintenance of the vegetation of the nature strip including the pruning of overhanging vegetation to improve sight lines and enhance safety. The Council lopped and pruned, mowed the grass, weeded, removed vegetation to the tip and yet failed to prune the vegetation between the pedestrian crossing and the hardware store adequately so as to reserve an appropriate sight distance until after the accident. The trial Judge accepted the evidence of Mr Pledge about the presence of obstructive vegetation overhanging the roadway. 44 Further, it was submitted that the trial Judge quite properly drew an inference from the existence of a "well worn track". The pedestrians were using the median strip as a means of access between the Coughlan Street intersection and the hardware store. Dunford J was entitled to find that it was reasonably foreseeable that persons would cross the median strip at that point. The issue of foreseeability was to be determined in the context of a public authority considering the engineering decisions regarding the roadway and the involvement of the Council in the design and acceptance of responsibility for the maintenance of the physical features adjacent to the service road. 45 These matters it was said were properly taken into account:

(a) The agreement between the RTA and the Council about the passing of the responsibility for the maintenance of the vegetation on the median strip.

(b) The design and construction of the 90 degree angle parking bay by the Council immediately adjacent to the accident site.

(c) The knowledge of traffic authorities that vegetation encroaching on the roadway could impede sight lines for passing motorists.

(d) The action taken by the Council before the accident to improve sight lines at the other end of the median strip simply by clipping back vegetation. 46 The Council elected to call no evidence from any Council officer in relation to the system of maintenance over a road such as the service road in the Council area. The agreement between the RTA and Council was clear. After the planting of a median strip, the RTA would be responsible for the maintenance of the vegetation for six months when the responsibility would vest in the Council. The trial Judge accepted Mr Winning's evidence that there was clearly a state of knowledge by road authorities that the growth of vegetation on to the road could affect the sight lines of approaching drivers. There was a clear finding by the trial Judge that there was vegetation to the right of the plaintiff. The Council called no evidence which could challenge the finding that shrubs on the nature strips between the highway and the service road were pruned after the accident by the Council as a result of the accident. 47 There was detailed expert evidence from Messrs Grewcoe and Winning to the effect that it was inappropriate engineering design and maintenance practice to permit vegetation to grow over the kerb so as to present an obstruction to persons using the roadway. This general principle was well known to road engineers and horticulturists when the accident occurred. 48 In my opinion, no argument advanced on behalf of the Council would lead to a conclusion that the Council was not liable in negligence for the injuries suffered by the plaintiff as a result of the accident.

Motor Accidents Act 1988 49 I have had the benefit of reading in draft the judgment of Bryson JA, who has reviewed the history of the "Motor Accidents" legislation, which restricts the damages recoverable for the injury of persons "as a consequence of motor accidents", amendments to the MAA and changes consequent upon the coming into force of the Motor Accidents Compensation Act 1999 (MACA). As his Honour has pointed out, the relevant form of the MAA was that in force at the date of the accident. Part 6 was headed "Awarding of damages". Important was the form of s69(1) and s70 which were to be found in Pt 6. Section 69(1) provided: "This Part applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle."

Section 70 provided: "A court shall not award damages to a person in respect of a motor accident contrary to this Part." 50 Both the RTA and the Council submitted that Dunford J erred in finding the damages payable by each of them should not be assessed pursuant to the MAA. Bitupave Ltd v Bollington concerned a plaintiff motorist who had been severely injured when the semi-trailer he was driving ran off the road. It was found that this event was caused by the defendant, Bitupave, a contractor doing re-surfacing work on the road, negligently placing signs which misled the plaintiff into driving his semi-trailer along an exit ramp from the Hume Highway in the belief that he was still on the highway and being injured when he ran across another highway crashing into a barrier on the other side of it. The driver recovered damages from the contractor for negligence. The trial judge assessed the plaintiff's share of responsibility for his injury as 12½ per cent. 51 Priestley JA, with whom Beazley and Stein JJA agreed, said at 229 that the submission by the appellant that Pt 6 of the MAA applied to and thus restricted the damages which might be awarded to the plaintiff was based on s69(1) of the MAA. The argument was that since the award of damages to the plaintiff related to the injury to him caused, in part, by his fault as the driver of the semi-trailer in its use, Pt 6 applied. In Priestley JA's opinion at 229: "… the award of damages to the plaintiff related to the injury to him caused by the negligence of Bitupave as road repairer. That award was reduced by 12½% being the amount the trial court thought just and equitable having regard to the plaintiff's share in the responsibility for the damage. Thus what the plaintiff received as damages was the amount which related to his injury caused by the fault of Bitupave as road repairer less the proportion attributable to the plaintiff's own fault. Assuming in the defendant's favour that the plaintiff's injury was caused by his own fault in the sense of s69(1) (something about which I have doubts), there was nothing to quantify pursuant to Pt 6 of the Motor Accidents Act in respect of that fault of the plaintiff. The quantification of amount was entirely done in calculating what should be awarded to the plaintiff for the damage caused to him by Bitupave's breach of duty, which had nothing to do with the Motor Accidents Act. Once that amount was quantified, it was reduced pursuant to the Law Reform (Miscellaneous Provisions) Act 1965 in accordance with the trial judge's judgment of what was just and equitable having regard to the plaintiff's share in the responsibility for the damage quantified in the plaintiff's common law claim, unaffected by the Motor Accidents Act, against Bitupave." 52 In the present case, the damages recovered by the plaintiff from each of RTA and the Council relate to the injury to her caused by its breach of duty. Furthermore, the rights of two parties to contribution from the Council or from the RTA relate to its liability in respect of the injury to the plaintiff. The amount of the contribution recoverable is that found to be just and equitable having regard to that party's responsibility for the damage. Section 5(1) and (2) of the Law Reform (Miscellaneous Provisions) Act focus upon the liability and extent of responsibility of the Council or the RTA for the injury. Priestley JA was considering the MAA in the form as it existed on 9 July 1994. His Honour's view of the meaning and application of s69(1) at that time has not since been doubted; Johnson v Inverell Shire Council [2002] ACTSC 18 at para 33; Fell v Blue Mountains City Council [2003] NSWSC 17 at para 77. See also Rouse v Shepherd at 253. 53 Bryson JA has helpfully reviewed the effect of later amendments to the MAA and the provisions of MACA which, if they had applied, may have produced a different result; Gunter v State Transit Authority of New South Wales [2004] NSWCA 330. Notably the MACA in s5 stated the objects of the Act. "(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims…" 54 It is not, in my opinion, necessary for us to express any view about the correctness of those cases applying the MAA in its amended form or the MACA. Dunford J was correct to assess the damages payable by the RTA and the Council to the plaintiff as those recoverable at common law.

Contribution; the Law Reform (Miscellaneous Provisions) Act 1946 (s5) 55 The problem of what orders for contribution should be made as between tortfeasors liable in respect of the same damage where the extent of the damages for which one of them is liable is limited by statute and where the jury's estimation of the victim's damages exceeds the prescribed limit is discussed authoritatively in Unsworth v Commissioner for Railways. In that case a widow brought an action for the benefit of herself and her three children under the Queensland equivalent of Lord Campbell's Act against the driver of a motor vehicle in which the widow's deceased husband had been travelling when the vehicle collided with railway trucks stopped at a level crossing in consequence of a collision with a semi-trailer. The other defendant to the widow's claim was the Commissioner for Railways. The Railways Act 1914 (Queensland) limited the amount of damages recoverable from the defendant Commissioner. The jury found both defendants guilty of negligence and found it just and equitable under the Queensland equivalent of the Law Reform (Miscellaneous Provisions) Act (s5) to allot 85 per cent of the responsibility for the negligence causing the collision to the Commissioner and 15 per cent of the responsibility to the driver of the motor vehicle. The jury brought in a verdict for the sum of £5,615. The Commissioner's liability under the Act was limited to £2,000. The High Court held that the damages for the plaintiff against the Commissioner and the amount of contribution payable by the Commissioner was the sum of £2,000. 56 At 87 Fullagar J said: "The above conclusion, however, is not the end of the matter. If it were the end of the matter, it would lead to the very remarkable result that the commissioner might be liable to a plaintiff only to the extent of 2,000 pounds, but liable to pay many thousands of pounds by way of contribution to another tortfeasor. In other words, he might, where he was only partly responsible for the damage, be compelled to pay much more than if he were solely responsible for it. But the conclusion so far reached means only that s121 does not operate directly to limit the amount recoverable by the appellant from the commissioner by way of contribution. We have still to turn to s5(c) of The Law Reform Act to see what the appellant's rights against the commissioner are. His right is to recover 'contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage'. Mr Mylne said that the commissioner was another tortfeasor who was liable with Unsworth for the wrongful causing of the death of King, and that s5(c) had no bearing on the quantum of the contribution recoverable. But it is, in my opinion, clearly implicit in s5(c) that the amount of the liability to pay contribution cannot be greater than the amount of the primary liability. Contribution can only be recovered from one who 'is, or would if sued have been, liable' to pay damages to the person injured. A person cannot be said to be so liable except to the extent to which damages can be recovered from him at law. In any case, I do not think that it could be lawfully held to be 'just and equitable' within the meaning of s6 of The Law Reform Act that a person should be ordered to pay by way of contribution to another tortfeasor a larger amount than he could be compelled to pay to the person injured." 57 At 91-2 Taylor J said: "The question is whether the appellant, in pursuit of his right to contribution, is entitled to recover from the commissioner a sum in excess of that which the plaintiff was entitled to recover against the latter in her action. For the commissioner it is said with some force that it would create an anomalous situation if it should be held that his liability to contribute can exceed the amount of his original liability to the plaintiff whilst the appellant, on the other hand, points out that, in pursuing the cause of action created by s5(c), it is unnecessary for him to show more than responsibility on the part of the commissioner for 'the same damage' and, thereupon, to recover a contribution to his own liability which is 'just and equitable having regard to the extent of' the commissioner's 'responsibility for the damage'. The latter expression the appellant interprets - and rightly so - not as a reference to the extent to which the commissioner might be liable to pay damages to the plaintiff but as a reference to his degree of blameworthiness for the injuries which resulted in the death of the deceased." 58 At 92 Taylor J observed that if the Commissioner's contentions were rejected the result would be that his liability as a person only partly responsible for personal injuries may well exceed the liability to which he would be subject if wholly responsible. On the other hand, if the Commissioner's contentions were accepted the result would be that the appellant, whose degree of responsibility was assessed at 15 per cent only, would be called upon to meet the bulk of the damages recoverable by the plaintiff. At 93 his Honour said: "It is true also that the language of s5(c) has been chosen without regard to the difficulty which arises in the present case. But the right to contribution is dependent upon the fact of liability and it seems reasonably clear that if the plaintiff had recovered judgment against the commissioner for the sum of 2,000 pounds and the commissioner had thereupon paid that sum to her the appellant could not, thereafter, have succeeded in his claim to recover a contribution. In such circumstances it would then have been impossible for the appellant to contend that the commissioner was a person 'who is, or would if sued have been, liable in respect of the same damage'. If this is so it would be anomalous to a degree to hold that he may now be required to contribute a sum in excess of that amount. This solution of the problem may be regarded as somewhat unsatisfactory but, if it is, it is because the language of the sub-section is obscure and incapable of ready application to the circumstances of cases such as the present. But, on the whole, the provision assumes the existence of a liability in the party from whom a contribution is sought and may fairly be taken to intend that, within the limits of that liability only, he may be called upon to make a contribution to the first tortfeasor." 59 It is clear on this authority that Mr Pledge could not be asked to contribute to another or other tortfeasors an amount or amounts which exceeded his capped liability under MAA. But on the other hand, up to that cap it is open to conclude, as Dunford J did, that a contribution of 50 per cent of the other tortfeasor's liability to the plaintiff would be "just and equitable" within the meaning of the section. This ground of appeal fails. 60 That leaves the question of whether, because both this Court and the High Court thought the plaintiff's case in negligence based upon the angle parking area and the want of signs failed against the Council, an adjustment should be made of the proportions of contribution. I am not persuaded that this follows. I think it correct to say, as was put by Mr Jackson QC for Mr Pledge, that his Honour divided responsibility equally between the driver's negligence and what could be described as the foliage negligence of the RTA and the Council. The RTA and the Council were equally responsible for not properly maintaining the nature strip and in particular not pruning the foliage. It was well open for Dunford J to attribute responsibility in the proportions he did. It is correct to say that Dunford J erred in bringing into account the acts of the Council in locating the 90 degree parking bay on the narrow service road and in failing to provide warning signs or a notice limiting the speed of vehicles when determining the amounts of the contributions. The task of this Court is to review the contributions freed of those errors. I am of opinion that the proportion of contributions remains appropriate and should not be disturbed. Looked at in this way, the 50 per cent liability of the driver, Mr Pledge, should not be increased and the division of the responsibility of the RTA and the Council equally was correct.

Orders 61 In the result, in my opinion, the appeals and cross-appeals from the decision of Dunford J should be dismissed with costs. These costs will include the costs of both the first and second hearing in this Court. 62 BRYSON JA: I agree with the judgment and conclusions of Sheller JA but prefer to state reasons in my own terms for the conclusion that the contribution recoverable among defendants is not, on the facts of this case, affected by Pt.6 of the Motor Accidents Act 1988 as in force when the plaintiff Ms Ryan was injured on 9 July 1994. Earlier in this litigation it has been established that the plaintiff is entitled to recover damages against each defendant Mr Pledge, BMCC and RTA. It has also been established that the effect of Pt.6 is that the damages (reduced for contributory negligence) to which the plaintiff is entitled if regulated by Pt.6 of MAA are $2,925,000 but if not so regulated $3,712,500. The ultimate incidence of damages will be determined by the working out of entitlements of defendants to contribution from other defendants under s.5 of the Law Reform (Miscellaneous Provisions) Act 1946 (LRMPA). It is not disputed that the caps in Pt.6 apply to recovery by the plaintiff of damages against Mr Pledge. Issues were debated on the remitted appeal relating to the operation of those caps on her recovery of damages against BMCC and RTA, and on entitlements to contribution among all defendants. 63 As the plaintiff was injured on 9 July 1994 her claim for damages is governed by Pt.6 Awarding of Damages of the Motor Accidents Act 1988 (MAA) - see s.2AA, inserted by Sched. 3 of the Motor Accidents Compensation Act 1999 (MACA). MAA was significantly amended by the Motor Accidents Amendment Act 1995; the amendments do not govern the plaintiff's claim: see MAA Sched. 4 para 17(1) which applies those amendments to claims made or in relation to motor accidents occurring after (in some cases) 26 September 1995 and (in other cases) 22 December 1995. MACA applies to claims arising from motor vehicle accidents occurring after the commencement of that Act, and its principal provisions commenced on 13 September 1999 and 5 October 1999; Ch 5, Award of Damages commenced on 5 October 1999. (See notes at p165 of Reprint No. 1 of MACA). Several decisions to which we were referred were decided on MAA after 1995 amendments or on MACA. Decisions on MAA after 1995 amendments and on MACA cannot govern and cannot well illustrate the interpretation of MAA before 1995 amendments.

64 Significant differences between the two forms of MAA include these. MAA before 1995 Amendments Definitions in Subs 3(1) included these: "injury" means personal or bodily injury, and includes: (a) pre-natal injury; and (b) (repealed) (c) psychological or psychiatric injury; and (d) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.; "injured person" means a person who suffers injury which is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle . "motor accident" means an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.

Definitions in Part 5 Claims and court proceedings to enforce claims included: "claim" means a claim for damages in respect of the death of or injury to a person caused by fault of the owner or driver of a motor vehicle in the use or operation of the vehicle;

s. 69(1) provided: 69 Application (1) This Part applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle . s. 70 provided: 70 General regulation of court awards A court shall not award damages to a person in respect of a motor accident contrary to this Part.

There is a further definition of inclusion relating to the words "Motor Accidents" in Pt.6 - see s.68, but that definition of inclusion has no present importance. 65 MAA after 1995 Amendments

Definitions in subs 3(1) include: injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, and (b) includes: (i) pre-natal injury, and (ii) psychological or psychiatric injury, and (iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.

The definitions of "injured person" and "motor accident" were unchanged.

In Part 6, subs.69(1) and s.70 were unchanged, but provisions relating to objects and interpretation were inserted: 2A Objects of Act (1) The objects of this Act are: (a) to repeal the Transport Accidents Compensation Act 1987 and thereby to abolish the scheme for compensating victims of transport accidents (TransCover) established under that Act, and (b) to re-instate a common law based scheme under which damages can only be awarded after a finding of negligence, and (c) by the scheme under this Act: (i) to reduce the cost of the former common law based scheme by limiting benefits for non-economic loss in the case of relatively minor injuries, and (ii) to introduce a stricter procedure for the making and assessment of claims for damages, and (iii) to preserve the benefits payable to persons with more severe injuries involving on-going disability, and (iv) to give full weight to the need to identify fraudulent claims , deter their lodgment and prosecute those responsible for them, and (v) to encourage recovery from injury and early and effective rehabilitation , where appropriate, as a key feature of the scheme, and (vi) to encourage the speedy, efficient and effective provision of benefits balanced by the need to investigate claims properly and the need to encourage an early return to employment. This statement of objects is based on the introduction to the outline of Option 3 in the TransCover Review, published in Motor Accidents: The Act and Background Papers by the Attorney General's Department, 1989, p 101. (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law.

2B Interpretation and application of Act by reference to objects (1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the object of this Act or the provision is to be preferred to a construction that would not promote that object. (2) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the object of this Act or of the provision concerned. 68A Objects - Part 6 The objects of this Part are: (a) to control the amount of damages that may be awarded to a claimant for the purpose of ensuring that the scheme under this Act is affordable, and (b) to achieve this control by the deliberate strategy of placing the burden of ensuring affordability on those who suffer relatively minor injuries so that sufficient funds are available to more fully compensate those who suffer more severe injuries. 66 Provisions of Pt.6 impose limits, often called caps, on elements to be included in damages awards and provide for the manner of calculation of those elements. As an example, subs.79(3) fixes a maximum amount which may be awarded for non-economic loss at $180,000 and s.80 provides for indexation of that amount. At several points provisions of Pt.6 relating to award of damages were amended in 1995: s.70A, s.72, s.72A, s.76, s.79, s.79A, s.80, s.80A. 67 The provisions most relevant to the disposition of the present litigation are subs.69(1) and s.70, which were not amended in 1995. The amendments made in 1995 which are most significant for present purposes are the substituted definition of "injury" in subs.3(1) and the provisions relating to objects and interpretation in ss2A, 2B and 68A which have no earlier counterparts. "Injury" appears in subs.69(1), so its substituted definition affects the meaning of subs.69(1). In some ways now relevant MACA follows provisions of MAA after 1995 amendments: but the objects which it states are more extensive.

68 To determine or give effect to the meaning of MAA before 1995 amendments is a completely different exercise to determining or giving effect to the meaning of MAA after 1995 amendments because the provisions about objects and interpretation are far-reaching. So too for MACA. Subsection 69(1) and s.70 were not amended in 1995 and were substantially re-enacted in MACA, but their meaning must be considered with the provisions about objects and interpretation, and changes in definition of terms.

69 It is useful to restate some inherently obvious propositions about the facts because they have a bearing on discerning the significance of some previous case law.

Mr Pledge owned and drove a registered motor vehicle, and its collision with the plaintiff could not be doubted to be a motor accident within the definition in subs.3(1) of MAA before 1995 amendments. She suffered "injury" and is an "injured person" as defined. She made a "claim" as defined.
At the time of the accident the plaintiff was a pedestrian; she was not driving a motor vehicle nor a passenger in one, and her contributory negligence had nothing to do with her owning or driving a motor vehicle.
The negligence of BMCC and RTA related to acts and omissions as highway authorities and had nothing to do with operation by them of any motor vehicle. Only Mr Pledge's motor vehicle was involved. Nothing in MAA other than (possibly) in Pt.6 has anything to do with their liability to pay damages. 70 In my opinion subs.69(1) and s.70 of MAA before 1995 amendments when read literally and alone provide that Pt.6 applies to the award of damages in favour of the plaintiff against RTA and BMCC. The structure of the provisions appears to have the effect that award of damages to which s.70 relates to is limited to award of damages which subs.69(1) declares that Pt.6 applies to and in respect of; but this structure has no practical limiting effect. Although the reasons why the Court has awarded damages against BMCC and RTA are not related to fault of the owner or driver of a motor vehicle in use or operation of the vehicle for which they are responsible, it is to my mind literally clear, if attention is paid to subs.69(1) and s.70, that there has been a motor accident within the definition of subs.3(1), and there has been an award of damages against each of BMCC and RTA to which subs.69(1) declares that Pt.6 applies, so that s.70 apparently produces the result that the Court is not to award damages to the plaintiff contrary to Pt.6. 71 However it is necessary to consider whether, on the terms of the whole of MAA before 1995 amendments, this literal rendering of the text of subs.69(1) and s.70 reveals the intention of the legislature. It is important to address those provisions and the effect which they apparently produce in the context of the whole of MAA and its purposes or objects as shown by its terms, without regard to the statements of objects in ss.2A and 68A which were inserted in 1995. 72 All subjects with which MAA before 1995 amendments deals have a relation to claims for damages for personal injury arising out of motor accidents within the general subjects of insurance and protection of the enforceability of claims against owners and drivers of motor vehicles. Part 3 deals with Third Party Insurance of owners of motor vehicles, makes insurance compulsory, regulates insurance, insurance policies and insurers, and controls premiums. There are detailed provisions about entitlements between insurers and their insured, and also other persons such as unauthorised drivers who may indirectly appear to derive some benefit from the availability of compulsory insurance. There are also provisions dealing with enforcement against insurers. Part 3 Div.5 deals with the nominal defendant scheme for uninsured and unidentified motor vehicles. Part 4 deals with rehabilitation of persons injured in motor accidents. Part 5 deals with claims and court proceedings to enforce claims; and "claim" is defined in s.40 in terms with a close resonance with subs.69(1). The provisions of Pt.5 revolve around claims arising out of motor accidents against drivers, owners, insurers and the nominal defendant. Provisions of Pt.5 include alterations of the procedural law relating to court proceedings: in s.52 there is a provision excluding the Limitation Act 1989 and making other provisions with respect to notice of claims and time for commencing proceedings; in s.53 there are detailed provisions about a presumption of agency of drivers on behalf of owners, in ss.57 to 63 there are provisions in great detail about admissibility of hearsay evidence and credibility of statements, overriding the general law; and there are other detailed procedural provisions. 73 The provisions of Pt.5 are integrated into the scheme of compulsory insurance, in a way which makes it difficult to suppose that the provisions were intended to operate upon a claim for damages made in respect of injury to a person caused by the fault of someone other than the owner or driver of a motor vehicle, concurrently with fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. This would be especially difficult if the claim were made only against that other person, and not against the owner or driver of the motor vehicle: that situation illustrates the difficulty but does not change it. Although a number of provisions in Pt.5 can literally be read so as to apply to a claim and to court proceedings even though the court proceedings were not in fact brought against the owner or driver of the motor vehicle, or against an insurer or nominal defendant, there is in my opinion no purpose which the legislature could have intended to achieve by extensively regulating claims which are outside the general subjects of insurance and protection of the enforceability of claims against owners and drivers of motor vehicles with which MAA deals generally. For example, no purpose could have been intended to be achieved by changing the law relating to the time available for bringing proceedings, or to the admissibility of evidence and means of proof, or presumptions about agency, except in relation to claims which could lead to liability of insurers or of funds within the scheme of compulsory insurance. 74 Part 6 Awarding of damages prescribes special rules for the award of damages and should be seen as a continuation of the chain of provisions including procedural provisions made in Pt.5. For Pt.6 there are anomalies of the same kinds as for Pt. 5. If a person is injured through the negligence of several concurrent tortfeasors there is in my opinion no purpose which the legislature might have intended to achieve by placing caps or other restrictions on the damages recoverable by persons whose injuries were caused by negligence of some person whose acts or omissions were not connected with the use of a motor vehicle which was concurrent with negligence of some other person in the use of a motor vehicle. The anomaly of the application of Pt.6 would appear more clearly if the injured person chose not to sue the owner or driver of the motor vehicle but only to sue other concurrent tortfeasors, so that the owner or driver was not a party, nor was his insurer nor a nominal defendant. The anomaly would be less evident but would be the same anomaly if the injured person chose to sue the owner or driver of the motor vehicle as well as the concurrent tortfeasors in the same proceedings. No apparent purpose of the general provisions of MAA before 1995 amendments would be served by improving the position of the non-motoring concurrent tortfeasor. 75 Consideration of this anomaly make it difficult, in my view ultimately impossible to understand the provisions of subs.69(1) and s.70 as intended to impose caps and restrictions on the award of damages against persons other than the class of persons with whose liability MAA deals generally, namely owners, drivers, insurers and the nominal defendant. In my opinion there is no purpose which could have been intended to be achieved by conferring the advantage of capping awards of damages on tortfeasors whose only connection with the general operation of MAA was that their negligence was concurrent with the negligence of someone else whose liability arose out of use of a motor vehicle. Distribution of an advantage, which may be a large advantage as in the present case, on such a fortuitous and random basis is not something which it can reasonably be supposed the legislature intended. My view is that notwithstanding the literal interpretation of the words in subs.69(1) and s.70, Pt.6 applies only to awards of damages against persons with whose liability MAA is generally concerned, that is, owners and drivers of motor vehicles, their insurers and the nominal defendant. It would be a strange result, unlikely to have been intended, if words of apparently general application in the midst of legislation dealing with a specialised subject conferred immunities or advantages on persons whose affairs are not involved in that subject, or restricted their liability. Reading MAA before 1995 amendments on a reasonable basis, it does not have any such meaning. 76 Whether a particular award of damages falls within the meaning of subs.69(1) and s.70 is a question of fact. The reasons why in the finding of the Court the circumstances of a particular death or injury bring an award of damages within the meaning of subs.69(1) and s.70, and why the relationships indicated by the general words "which relates to" in subs.69(1) and "in respect of" in s.70 are present, are not susceptible of complete exposition: the nature of language is such that questions about whether a state of facts falls within a definition can only be answered by answers which cannot be fully expounded. There is however still a need to give an answer whenever it is decided whether Pt.6 applies to an award of damages in its circumstances, and the way the facts are found in one case does not determine any question which can govern decision in another case with a different array of facts and circumstances of the integers of subs.69(1) - relation of the award to the death or injury, and cause of the death or injury. The force of this is obscured by there being, in most cases, an unmistakably obvious answer to the question of fact: where a car hits a pedestrian, or two cars collide and injure a passenger, and nothing raises consideration whether any other person's negligence contributes to the injury, the answer is obvious on either state of MAA, before and after 1995 amendments. There may be some assistance from earlier judicial experience and from analogy, but that is the most that an earlier case can provide. Where as with subs.69(1) and s.70 there have been large changes in the statutory context, introducing an entirely new definition of "injury" and a new array of elaborately stated objects which all have a place in interpretation, there is nothing of authority in a decision given on the state of MAA on the other side of the divide created by the Motor Accidents Amendment Act 1995. 77 Judicial opinion dealing with MAA before the amendments of 1995 uniformly supports applying caps only to damages awarded against an owner, driver, insurer or nominal defendant. 78 In Bitupave v Bollington (1998) 28 MVR 223 the Court of Appeal addressed the construction of subs.69(1) in relation to a claim arising out of a motor accident on 27 May 1993, to which the amendments of 1995 did not apply. The plaintiff was a motorist who had been severely injured when the semi-trailer he was driving ran off the Hume Highway; the defendant was a contractor doing resurfacing work on the road, and it was found that the event was caused by the defendant negligently placing signs which misled the plaintiff into driving his semitrailer along an exit ramp in the belief that he was still on the highway; he was not prepared to encounter a junction with another road to which the exit ramp led, and when in fog he came to stop signs at the junction he was unable to stop, but ran across the other road and down a steep drop. He recovered damages against the contractor, and the contractor's negligence was not fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. The plaintiff's damages were reduced by 12½ % for his contributory negligence. 79 In the leading judgment Priestley JA (with whom Beazley and Stein JJA agreed) said at 229: Ground 8: does the Motor Accident Act 1988 Pt6 apply to the assessment of damages?

For the appellant it was contended that Pt6 of the Motor Accident Act 1988 applied to, and thus restricted the damages which might be awarded by the court. This submission was based on s69(1) of the Act which said: "This Part applies to and in respect of an award of damages which relates to the injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle."

The argument was that the award of damages to the plaintiff related to the injury to him caused, in part, by his fault as the driver of the semi trailer in its use. Therefore the Part applied.

I do not agree with this submission. In my opinion the award of damages to the plaintiff related to the injury to him caused by the negligence of Bitupave as road repairer. That award was reduced by 12.5% being the amount the trial court thought just and equitable having regard to the plaintiffs share in the responsibility for the damage. Thus what the plaintiff received as damages was the amount which related to his injury caused by the fault of Bitupave as road repairer less the proportion attributable to the plaintiff's own fault.

Assuming in the defendant's favour that the plaintiff's injury was caused by his own fault in the sense of s69(1) (something about which I have doubts), there was nothing to quantify pursuant to Pt6 of the Motor Accidents Act in respect of that fault of the plaintiff. The quantification of amount was entirely done in calculating what should be awarded to the plaintiff for the damage caused to him by Bitupave's breach of duty, which had nothing to do with the Motor Accidents Act . Once that amount was quantified, it was reduced pursuant to the Law Reform (Miscellaneous Provisions) Act 1965 in accordance with the trial judge's judgment of what was just and equitable having regard to the plaintiff's share in the responsibility for the damage quantified in the plaintiff's common law claim, unaffected by the Motor Accidents Act , against Bitupave.

80 The brief reference to the appellant's argument shows that it was based on the apparent literal effect of subs.69(1). It will be seen that Priestley JA addressed the question whether the award of damages related to injury caused by the fault of the driver of a motor vehicle in use or operation of the vehicle, and gave what I would respectfully say was a narrow and exact and also correct reading of subs.69(1); it was as if Priestley JA had asked what exactly it was that the award of damages related to and answered that the award of damages was not related to injury to the plaintiff caused by the fault of the plaintiff as driver of a motor vehicle in the use or operation of the vehicle. Damages were awarded for the negligence of the contractor; the award of damages did not relate to the plaintiff's negligence, as the quantification of the amount was done on a basis which excluded recovery in respect of his own fault. 81 In the present case, as in Bitupave v Bollington, there was contributory negligence of the plaintiff, and the damages have been reduced accordingly. There are however some elements in the facts of Bitupave v Bollington which are different from the present case. In this case the plaintiff was not driving a vehicle, and in Bitupave v Bollington unlike the present case, there was no defendant who was driving a vehicle. These circumstances do not materially distinguish Bitupave v Bollington from the present claim of the plaintiff against BMCC and RTA. . 82 In Rouse v Shepherd (1994) 35 NSWLR 250 Badgery-Parker J dealt with MAA before the amendments of 1995. There were three defendants, two being the drivers of motor vehicles which had collided head-on and the third being the RTA which was carrying out roadwork in the area. Counsel for RTA contended that RTA had the benefit of Pt.6 of MAA in the assessment of damages awarded against it. In dealing with this contention, Badgery-Parker J said: Section 69(1) is not effective to make Pt 6 applicable to the plaintiff's claim against the third defendant. There is no occasion to invoke, as an aid to interpretation of s 69(1), the common law principle of construction that ambiguity will be resolved by an interpretation which preserves fundamental common law principles or rights; nor to refer to the law reform reports antecedent to the enactment of the Motor Accidents Act 1988 nor to the second reading speeches, because the subsection is plain and unambiguous: Booker v State Rail Authority of New South Wales (No 1) (1993) 31 NSWLR 393 at 399; Booker v State Rail Authority of New South Wales (No 2) (1993) 31 NSWLR 402 at 410. The plaintiff alleges no fault against the third defendant as either owner or driver of a motor vehicle: its liability flows from negligent acts and omissions in the course of carrying out road maintenance. 83 That is to say, in his Honour's view subs.69(1) unambiguously did not apply to an award of damages against a tortfeasor other than the owner or driver of a motor vehicle. The references to Booker v State Rail Authority of New South Wales (No 1) (1993) 31 NSWLR 393 and Booker v State Rail Authority of New South Wales (No 2) (1993) 31 NSWLR 402 may reflect a misunderstanding as that case related principally to subs.69(2), not subs.69(1); but Badgery-Parker J's own view is clear. 84 In O'Sullivan v Thai Airways International Ltd (1998) 28 MVR 469 Simpson J held that Pt.6 of MAA applied to limit award of damages against the owner of a motor bus where, in Thailand, the plaintiff was thrown from her seat as a result of negligence of the driver and suffered personal injury. The bus of course was not registered in Australia and had no New South Wales Third Party Insurance and no connection with MAA. Only one tortfeasor was involved and there was no contributory negligence. Simpson J held that MAA applied, and that the Court might not award damages contrary to Pt.6. Her Honour said (at 474-475), in relation to the question whether subs.69(1) operated extraterritorially: "I do not detect any relevant ambiguity or uncertainty in any of the sections to which I have earlier referred.". Her Honour also referred to ss.2A and 2B; she did not attribute any relevant operation to them, and it should be observed that they had no relevant operation because they took effect at a later time than was relevant. Her Honour's holding about extraterritoriality has been completely overtaken by the decision of the High Court of Australia in Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491. 85 In Roads and Traffic Authority v Scroop (1998) 28 MVR 233 the appeal related to three separate actions in which damages for personal injuries arising out of the same accident were recovered against a motorist and his trucking company, RTA and Bitupave a paving contractor; and there were elaborate claims for contributory negligence. The Trial Judge assessed common law damages and damages under MAA; see p234. The issues on appeal related to liability of RTA and to contribution; there was no issue on appeal about whether the Trial Judge had acted correctly in assessing common law damages and also damages under MAA against different defendants, and it is not even clear from the judgment whether, having assessed damages, the Trial Judge gave judgment on one or the other basis against different defendants. RTA v Scroop is not an authority on the meaning of subs.69(1) and s.70. 86 In Gunter v State Transit Authority of NSW [2004] NSWCA 330 the Court of Appeal concluded to the effect that on the facts of that case and under s.123 of MACA, which is in very similar terms to s.70 of MAA, damages were to be awarded only in accordance with caps and restrictions imposed by MACA. MACA contains provisions which are very similar in their terms to provisions of MAA including in s.3 a definition of "motor accident" in terms almost exactly the same as the definition in s.3 of MAA. Subsection 122(1) and s.123 are closely similar to subs.69(1) and s.70 of MAA. A striking difference however is that MACA contains in ss.5 and 6 provisions about objects and interpretation by reference to objects which do not have any counterpart in MAA before 1995 amendments. There is a lengthy statement in s.5 of MACA of the objects of the Act, and subs.(2) states a number of considerations relating to the operation of the scheme including the insurance scheme for Motor Accident Compensation which "must be acknowledged in the application and administration of this Act." Some objects stated in s.5 recognisably continue objects stated in MAA after 1995 amendments, but the statement of objects is much more detailed. 87 Objects which in Gunter v STA were regarded as having a first claim on attention (by Young CJ in Eq at 14) were objects 1(a) and (b) as follows: 5 Objects of Act

(1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,

Object 1(b), early resolution of compensation claims, had a prominent influence on Young CJ in Eq's disposition of the appeal, in which his Honour rejected (at para [34]) an argument to the effect that people injured where the cause of the accident was only incidentally related to the use of the motor vehicle were excluded as claimants against funds with which the Act deals. His Honour accepted a contrary submission in which counsel said: If the construction is given to it as proposed by my learned friend, one would see a number of cases where motor accident compulsory third party insurers would be declining indemnity on the basis that the accident happened due to some other cause and the potential is there for endless debates.

(See also paras [36], [37] and [38]). There is no object in MAA before 1995 amendments which leads in this direction. 88 The factual circumstances of the decision in Gunter v STA are very different to those of the present case. In Gunter v STA the plaintiff was injured when standing on the footpath of George Street Sydney; she was hit by a temporary bus stop sign which had been struck by a bus. There was only one defendant, STA. The facts showed that STA was the employer of someone who placed the temporary bus stop sign too close to the kerb where a bus could strike it and knock it over, and that STA was also liable as the employer of the bus driver who struck the sign with a protruding side mirror and knocked it over by driving too close to the kerb and to the sign. The fall of the sign and the plaintiff's injury were caused by the concurrent negligence of two different persons for whose negligence the STA was liable; and would not have happened if the negligence of these persons did not operate concurrently. The plaintiff's claim was presented in a careful way so as not to refer to negligence of the bus driver, with the object of showing that MACA did not operate to limit the damages. 89 Young CJ in Eq said at [9]: [9] The claimant's statement of claim was deliberately pleaded so as to make no allegation at all as to the negligent driving or operation of the bus. The plaintiff sued in negligence, but she said the negligence was that the opponent had placed the sign at the edge of the footpath immediately adjacent to the roadway and that was negligent because it was foreseeable that it would be struck by a vehicle and might injure a person such as the plaintiff and not only that, there was a failure to warn the plaintiff of the dangers that the placing of the bus stop in that position represented.

Although negligence was denied, Young CJ in Eq said at [10]: …this must be read as denying any negligence as alleged by the claimant, because the line taken by [State Transit Authority's] counsel in the District Court and before [the Court of Appeal] clearly was that the accident happened as a result of the negligence of the operation of the bus.

The provisions of MACA relating to objects had an influence on the decision, as the review by Young CJ in Eq of the history of the legislation included consideration of the Motor Vehicles ( Third Party Insurance ) Act 1942, the scheme of MAA in 1989, and the 1995 amendments, including reference to the Minister's Second Reading Speech on introducing the Bill for the 1995 amendments. His Honour observed: (at [25]) "What has not been directly addressed by the legislation is where there are two or more causes of the injury" and went on to refer to case law relating to that situation, including two recent decisions on the operation of MAA: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2003) 57 NSWLR 321 at 324-5 and Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636, in both of which injury was caused by negligence but there were, on their facts, difficulties of classifying the association between the negligence and the motor vehicle. 90 In Gunter v STA no reference was made to Bitupave v Bollington; and I do not find this surprising, as the facts of Bitupave v Bollington were strikingly different to the facts under consideration in Gunter v STA, and Bitupave v. Bollington was not decided on MACA, but on the very different MAA before the 1995 amendments. 91 At the level of form, Gunter v STA is not a decision on the legislation I am considering, and for that reason should not be treated as binding. It is not an authority for the further reason that it was made upon a situation of fact significantly different to the facts now relevant. The element now of central importance that the injury was caused by the negligence of tortfeasors who had no involvement in driving a motor vehicle, concurrently with negligence of another tortfeasor who did, was not present. The application of s.123 of MACA to the facts of Gunter v STA was a question of fact and interpretation: there was only one defendant, which was not pointing away from itself when pointing to the non-motor vehicle concurrent negligence: the interpretation made by Young CJ in Eq seems, with respect, to have a very strong foundation, but those facts will not often recur. 92 Allianz Australia Insurance v GSF Australia Pty Ltd to which Young CJ in Eq referred, is a decision on the meaning of the definition of "injury" inserted in s.3 of MMA by the Motor Accidents Act Amendment Act 1995, which took effect on 1 January 1996 in relation to accidents occurring on or after that day. Allianz did not involve concurrent tortfeasors. The plaintiff was injured as a result of defective loading mechanism of a truck owned by his employer and used in his work: the issues related to allocation of (admitted) liability to the Motor Accidents Third Party Insurer or the Workers Compensation insurer: each had a statutory provision limiting damages. The definition of "Injury" in MAA after 1995 amendment, with a reference to causation, had a significant part in decision: it was on causation that the (majority) decision turned. The previous and simpler definition of "injury" has effect for the present case and could give rise to no corresponding difficulty of application. Emad Trolley Pty Ltd v Shigar was also decided upon the later form of MAA. There were no concurrent tortfeasors: the plaintiff was injured in the course of his employment when he slipped off his employer's trolley truck, and it was held, largely on the later definition of "injury", that MAA after 1995 amendments applied. 93 None of these three cases involved decision on or consideration of whether subs.69(1) and s.70 applied to limit the award of damages against a concurrent tortfeasor who was not the owner or driver of a motor vehicle. 94 The purpose of legislation is to be regarded in its construction; see Interpretation Act 1987 (NSW) s.33. Regard for the whole terms of an enactment, and the purpose for which it is enacted, can well show and has often been found to show that some words in it were not intended to mean what those words appear to say on their face, in some part of the enactment read in a literal way. There is no novelty in saying: And the judges of the law in all times past have so far pursued the intent of the makers of statutes that they have expounded Acts which were general in words to be but particular where the intent was particular.

(Stradling v Morgan (1560) 1 Plowd 199, 75 ER 305 at 312). The Exchequer Barons went on to refer to earlier cases in which apparent literality had been departed from. This passage was cited in Bowtell v Goldsborough, Mort & Co Ltd (1905) 3 CLR 444: see O'Connor J at 457-458. A collection and review of case law on reading down the literal construction of general words so as to give effect to the intention revealed by the terms of a statute as a whole was given in R v Young (1999) 46 NSWLR 681 at 688-690 [17-31] (Spigelman CJ). 95 In my opinion nothing in MAA before 1995 amendments taken at large reveals any possible purpose to be served by providing to the effect that any tortfeasor, no matter in what circumstances the tortfeasor was liable, had the benefit of restrictions on the award of damages if it happened that his tort was concurrent with the tort of another person whose negligence was also a cause of the same injury, and who at the time was driving a motor vehicle. A rule like that could have no benefit for or influence on the effective operation of the system of insurance and related provisions for which the Act generally provides. On any reasonable reading the legislation was not intended to confer a large advantage on a person whose liability was not connected with motoring or third party insurance except through the chain of circumstances I have mentioned; such a result would be so unlikely that it must be understood that it was not intended.

96 In my opinion the words of subs.69(1) and s.70, notwithstanding their apparent literal reach, do not when read in the context of MAA before 1995 amendments as a whole show that it was the intention of the legislature to restrict or regulate the award of damages against a tortfeasor who was not involved in the events as the owner or driver of a motor vehicle, whether or not that tortfeasor's negligence was concurrent with the negligence of some other person who was the owner or driver of a motor vehicle. The exact and narrow ground upon which Priestley JA disposed of Bitupave v Bollington is applicable, and if (as is not clear) it is different in substance to the view I have expressed, Priestley JA's ground is also applicable in the present case and has the consequence that the damages recoverable by the plaintiff against RTA and BMCC are not limited by Pt.6. It is important to observe that I am not addressing the construction of MAA after the 1995 amendments, its expressly stated objects, or the objects stated in MACA. 97 In the judgment of Dunford J [2001] NSWSC 259 - at [53] (Orange 68 at [53]) His Honour after addressing the facts at length said: - In these circumstances I considered that the responsibility for the plaintiff's injuries should be apportioned between the defendants as 50% to the first defendant, and 25% to each of the second and third defendants. 98 Dunford J considered the influence of the caps imposed by Pt.6 of MAA on the contribution recoverable from Mr Pledge by BMCC and RTA towards the uncapped award of damages against them (see [56-65] at Orange 69-74). After reduction for contributory negligence Dunford J gave judgment for $3,712,500 against each of BMCC and RTA and for $2,925,000 against Mr Pledge. His Honour made orders for contribution of 25% of $3,712,500, that is, of $928,125 against Mr Pledge in favour of each of BMCC and RTA; so that the total amount of contribution which Mr Pledge was ordered to pay was $1,856,250. Of course it is mathematically clear that the total of the contribution which Mr Pledge has been ordered to pay is less than the capped damages recoverable against him by Ms Ryan. When the whole of Dunford J's reasons are taken together it must, in my view, be understood that his Honour determined that it was just and equitable that BMCC and RTA should each recover a contribution of $928,125, and that the percentage apportionment of responsibility was no more than a step (however important) on the way to that conclusion. 99 The contention on behalf of Mr Pledge was to the effect that contribution which he should pay to each of BMCC and RTA is 25% of the capped damages $2,925,000, that is $731,250, so that the total contributions would be $1,462,500. In the judgments delivered on the first appeal on 10 April 2002 the Court of Appeal did not address this contention because it was of the view that there should be no recovery against BMCC and RTA. The order of the High Court of Australia of 11 March 2004 and the reasons then published show that on the remitted appeal the Court of Appeal is to determine reapportionment of liability among Mr Pledge, BMCC and RTA and also other matters that were before the Court of Appeal but were not dealt with in its earlier judgment. 100 The power to award contribution between joint and several tortfeasors is conferred by s.5 of LRMPA. Provisions of s.5 now relevant are as follows: 5 Proceedings against and contribution between joint and several tort-feasors (1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (a) … (b) … (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. (3)… 101 Consideration of the influence which caps on the award of damages in accordance with Pt.6 of MAA should have on an award of contribution arises under subs.5(2) on the question what contribution is to be found to be just and equitable having regard to the extent of Mr Pledge's responsibility for the damage. Provisions of subs.69(1) and s.70 applicable to the award of damages do not refer to the award of contribution under s.5 of LRMPA; Pt 6 speaks only of "damages," not "damage" and "contribution" which are the integers of s.5, and makes provisions for limiting the award of damages which plainly cannot be applied to decisions on contribution under subs.5(2). 102 It has long been clear that a claim for contribution under s.5 is not a claim for damages. The distinction is drawn in a clear way in Unsworth Commissioner for Railways (1958) 101 CLR 73 on Queensland legislation corresponding with LRMPA: see Fullagar J at 86, approving Nickels v Parks (1948) 49 SR (NSW) 124 at 129, 130 (Jordan CJ). See too Taylor J at 90-91, Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323 at 327-328 (Barwick CJ), and Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 526-527. 103 It is also well established that regard should be paid, when deciding what contribution is to be awarded under s.5, to special statutory limitations of the damages recoverable against a person against whom contribution is to be awarded. Fullagar J addressed such a question in Unsworth at 87: But it is, in my opinion, clearly implicit that in s.5(c) [of Queensland contribution legislation] the amount of the liability to pay contribution cannot be greater than the amount of the primary liability. Contribution can only be recovered from one who 'is, or would if sued have been, liable' to pay damages to the person injured. A person cannot be said to be so liable except to the extent to which damages can be recovered from him at law. In any case, I do not think that it could be lawfully held to be 'just and equitable' within the meaning of s.6 of the Law Reform Act [which corresponds to subs.5(2) of LRMPA] that a person should be ordered to pay by way of contribution to another tortfeasor a larger amount than he could be compelled to pay to the person injured.

Taylor J. reached a similar conclusion: see 91-93. 104 The view of Fullagar J was followed and applied in this Court in Commonwealth of Australia v Flaviano & Anor (1996) 40 NSWLR 199; see 201-202 (Sheller JA). This view was acted on specifically in Lanza v Codemo [2001] NSWSC 72 (Wood CJ in CL) where damages were assessed under the Common Law against two of the three defendants and assessed as capped against another defendant whose liability was capped by MAA and further capped by Workers Compensation Act 1987 s.151Z. Wood CJ in CL made an apportionment calculation on the basis of the liabilities of the uncapped defendants, and on the basis that the MAA tortfeasor's maximum exposure was its capped liability. In the present proceedings Dunford J referred to this decision. 105 The approach to be taken to apportionment was authoritatively stated by the High Court of Australia in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-494. A very wide range of considerations may reasonably be regarded when assessing just and equitable contribution under subs.5(2). It was established by Unsworth that contribution exceeding a statutory cap on damages which a concurrent tortfeasor was or would if sued have been liable to pay to a third party should not be awarded. Accordingly, reasoning which calculates contribution by reference to a proportion expressed as a percentage and applied to the uncapped damages payable by the party claiming contribution appears to me to be the approach which should usually be adopted. The uncapped damages are the expression of "damage" referred to in subs. 5(1)(c) and 5(2): the capped damages are not. 106 Written submissions on behalf of Mr Pledge appeared at first to proceed on the mistaken view that Dunford J's decision relating to contribution led or might lead to Mr Pledge's being required to pay more than the capped amount (see Orange 147). In oral submissions it was contended that a tortfeasor to whom MAA does not apply should not be able to recover from a tortfeasor to whom MAA does apply more than the appropriate percentage of the amount for which the MAA tortfeasor is liable. It was contended that the policy of limiting awards of damages evident in ss.69 and 70 of MAA should apply in determining what level of contribution is just and equitable, because MAA should be understood as indicating a legislative statement as to the extent to which persons in Mr Pledge's situation should be liable for damages (See oral submissions at transcript 123-124). Senior counsel for Mr Pledge referred to judgments in the High Court in Andar Transport v Brambles [2004] 78 ALJR 907 at 921 [59-60] and 924 [80-83]. I have not found any assistance in those passages. 107 It is evident that Dunford J treated $3,712,500 recoverable against BMCC and RTA as one of the integers in the process of reasoning towards decision on just and equitable contribution in s.5. In my opinion the caps and restrictions in Pt.6 of MAA do not form a reason why his Honour should not have done so, as the ultimate conclusion on contribution did not impose a liability higher than the capped liability on Mr Pledge. The amount of Mr Pledge's capped liability is a relevant consideration; it could be given weight in reaching a proper decision on what is just and equitable, it is not a predominant consideration except that it should not be exceeded, and so long as it is not exceeded there is no reason not to pay regard to the higher liability which the parties claiming contribution have incurred for the damage caused by the concurrent torts when deciding what contribution is just and equitable. It would be an error to treat ss.69 and 70 of MAA as governing or controlling a decision under subs.5(2) of LRMPA, or to treat the provisions of MAA relating to capping awards of damages as having a wider operation than MAA actually gives them. The correct expression of damage when applying subs.5(2) is the amount awarded against the defendant whose liability is not capped, and that damage should be considered when giving effect to subs.5(2) and, in its words, "having regard to the extent of that person's responsibility for the damage". 108 The claim that a Court assessing contribution by reference to what is just and equitable should not assess contribution at more than the capped amount has the support of the strong observations of Fullagar J in Unsworth. It also has the support of the consideration that if more than the capped damages were awarded as contribution the result which MAA clearly intended should not happen directly would be brought about indirectly. What MAA intended should happen is within the concept of the just and equitable which ought not be defeated. If the cap is observed, everything had been done which should be done to observe the justice and equity of the capping legislation. 109 In my view the decision of Dunford J is not in conflict with any discernible policy of MAA, so that if any such policy should have a place in a decision under s.5(2) of LRMPA, his Honour's decision is not in conflict with that. Dunford J's decision did not, in my opinion, fail to have regard to the extent of Mr Pledge's responsibility for the damage; and the statutory cap on the damages which might be awarded against him should not have had any influence on the decision beyond its not being exceeded. 110 For these reasons I am of opinion that Dunford J's decision and orders on contribution should not be disturbed. 111 I agree with the orders which Sheller JA has proposed.

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.

CITATION: ROADS AND TRAFFIC AUTHORITY v RYAN; BLUE MOUNTAINS CITY COUNCIL v RYAN [2005] NSWCA 34

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2003) 57 NSWLR 321 Andar Transport v Brambles [2004] 78 ALJR 907 Bitupave Ltd v Bollington (1998) 28 MVR 223 Booker v State Rail Authority of New South Wales (No 1) (1993) 31 NSWLR 393 Booker v State Rail Authority of New South Wales (No 2) (1993) 31 NSWLR 402 Bowtell v Goldsborough, Mort & Co Ltd (1905) 3 CLR 444 Brodie v Singleton Shire Council (2001) 206 CLR 512 Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323 Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636 Fell v Blue Mountains City Council [2003] NSWSC 17 Gunter v State Transit Authority of New South Wales [2004] NSWCA 330 Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232 Johnson v Inverell Shire Council [2002] ACTSC 18 CASES CITED: Lanza v Codemo [2001] NSWSC 72 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 Nickels v Parks (1948) 49 SR (NSW) 124 O'Sullivan v Thai Airways International Ltd (1998) 28 MVR 469 Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Pyrenees Shire Council v Day (1998) 192 CLR 330 R v Young (1999) 46 NSWLR 681 Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 Roads and Traffic Authority v Scroop (1998) 28 MVR 233 Rouse v Shepherd (1994) 35 NSWLR 250 Stradling v Morgan (1560) 1 Plowd 199, 75 ER 305 at 312 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Unsworth v Commissioner of Railways (1958) 101 CLR 73

Notwithstanding the literal interpretation of the words in subs 69(1) and s70 of the MAA, Part 6 of the MAA applies only to awards of damages against persons with whose liability the MAA is generally concerned with, that is, owners and drivers of motor vehicles, their insurers and the nominal defendant. Bitupave Ltd v Bollington (1998) 28 MVR 223 applied. Gunter v State Transit Authority of New South Wales [2004] NSWCA 330 distinguished. Held: in relation to contribution between tortfeasors per Sheller JA, Mason P and Bryson JA agreeing:

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