56 COLE AJA: I have had the advantage of reading, in draft, the judgment of Stein JA in which the factual circumstances surrounding the plaintiff's accident, and the bases upon which each appellant was held liable, are set forth. I adopt Stein JA's statement of facts subject to the following additional matters:
(1) The plaintiff was 17 years 7 months old at the date of the accident.
(2) The plaintiff's usual mode of going to school was to catch a bus from the street in which she lived, Tallangandra Drive, to Blacktown Station and then walk the 10 minutes required to Blacktown High School. In the afternoons, school ceasing at 3pm, she would reverse the journey normally catching the 3.10 pm bus alighting in Tallangandra Drive. If she missed that bus she would normally wait until the next bus leaving at about 3.40 pm which again allowed her to alight in Tallangandra Drive. She had done this for some years. That journey did not involve any need to cross the busy Richmond Road. On the day of the accident, she missed the 3.10 pm bus, saw a girl whom she knew catching the subject bus and decided also to catch that bus. She had taken this alternate route approximately monthly. There was thus available to the plaintiff a safe, convenient alternative route to the bus that she caught on the day of the accident which did not involve her in crossing the busy four lane Richmond Road. On some other occasions she caught a second alternative bus described as the Doonside Station Bus, alighting from that in Hill End Road near the Richmond Road intersection. Either of these two bus routes, other than that which travelled to Tallangandra Drive, required her to cross Richmond Road. She sometimes caught the Doonside Station bus because she wanted to go to the shops, presumably near Doonside Station. This bus was sometimes caught by the plaintiff because of her having employment after school.
(3) On travelling west along Richmond Road on the route the subject bus took, there were nine marked bus stops apart from the unmarked stop where the subject bus terminated its route. At two only of the nine bus stops were there pedestrian crossings to facilitate persons leaving the bus crossing Richmond Road. At each of the remaining seven marked bus stops, and the unmarked stop, pedestrians wishing to cross to the northern side of Richmond Road either had to walk to one of the two marked pedestrian crossings, or take the risks associated with crossing the four lanes of Richmond Road. The plaintiff knew that in catching the bus she did she would have to cross Richmond Road.
(4) On all occasions when the plaintiff previously had alighted from a bus, whether at the subject stop or any other stop, she had never run out in front of the stopped bus because she knew it would be a stupid thing to do as there might well be traffic overtaking the bus and she could thus be hit.
(5) The plaintiff knew that whether she alighted at the terminating spot as she did, or whether she alighted in Hill End Road if the bus proceeded into that road, as an alternate route did, she would be alighting at an unmarked bus stop, and would, in each instance, have to cross Richmond Road to get to her home.
(6) The plaintiff was the only alighting passenger wishing to cross Richmond Road who did not go to the back of the bus to make that crossing.
(7) The journey from Blacktown Station to the terminating stop of the subject bus took about 12 to 15 minutes. To have extended that trip to travel along Hill End Road would have extended the journey by a further five to seven minutes. The period around 3 to 4 pm was described as the "flat out" time of the day for bus services.
(8) The evidence of Mr Brown, the other bus driver, was that in the past children had run in front of his bus whether it was stopped at a designated or non-designated stop. Whilst he had adopted the alternative of dropping people on the northern side of Richmond Road on his return journey to Blacktown rather than drop them at the non-designated stop, he continued to drop children wishing to go to the northern side of Richmond Road when he dropped them at a designated stop. This was so even though there was no pedestrian crossing. There was thus no established practice or recommendation that persons, be they adults or children, wishing to go the northern side of Richmond Road should be dropped there on the return journey to Blacktown Station to avoid their having to cross Richmond Road. Apart from Mr Brown, it was the normal practice for the buses returning to Blacktown Station not to stop on the return journey.
(9) There was no evidence from the plaintiff that, had she been offered the option of remaining on the bus whilst it drove either into Hill End Road, or around the roundabout to return to Blacktown Station, so as to be dropped in Hill End Road or on the northern side of Richmond Road, she would have taken that option.
(10) One expert, Mr Vaughan, regarded the circumstance that the accident occurred near a non-designated as distinct from a designated bus stop as a "matter of irrelevance". The other expert, Mr Johnson, did not "necessarily agree" that the accident was just as likely to have occurred at a designated as distinct from a non-designated bus stop. The reason why he "did not necessarily so agree" was because of a hypothetical proposition that "the presence of a left horizontal curve on approach with limited sight distance has perhaps been a partial or causal factors (sic) of the incident. "
Mr Johnson was referring to the parked bus being a possible cause of motor vehicles changing lanes to avoid the stopped bus. It was not explained why the necessity for vehicles to change lanes varied when a bus stopped at either a designated or non-designated stop. There was no suggestion in the evidence that at the other nine bus stops on Richmond Road, the road was any wider than where the bus in fact stopped, or that there were bus stopping bays set into the verge and out of the two lines of traffic.
Duty of care of bus company
57 I agree with Stein JA that as a general proposition a bus company's duty of care to a passenger ceases when the passenger is deposited safely on the footpath. An example of failure to comply with this duty is found in Urban Transit Authority v Ruz-Canales (1995) 22 MVR 249 where the bus company permitted a passenger to alight away from the footpath by opening a door permitting him to step down into a stream of traffic. I also agree that, in rare circumstances, particular facts may indicate that, prior to a passenger alighting on to the footpath, a bus company may breach its duty to that passenger, although the damage is suffered after the passenger so alights. Jarvis v Scrase Unreported Queensland CA 22 December 1998 is such an example. There the bus driver had control over children within the bus, and breached its duty to the child injured by permitting the child to alight with knowledge that the young child would cross a road in circumstances where it was plainly not safe to do so. Jarvis v Scrase was a special case involving a school bus where the driver had authority and control over the young children who were his passengers. However, subject to such rare circumstances as illustrated by Jarvis v Scrase, the duty of care owed by a bus company to its passengers to transport them safely to the point at which they are to alight terminates on their leaving the bus by stepping on to the safety of the footpath. The reason why the duty then terminates is because, from that time onwards, the bus company and its driver have no control over and cannot influence the decision of the alighting passenger regarding his conduct. Once the passenger has alighted, he is free to do as he wishes and there is nothing which the bus driver, or the bus company, can do to regulate or restrain the actions of the departed passenger. The passenger is a free agent entitled to take such risks as the passenger regards as appropriate. Once the passenger has alighted from the bus the relationship between the passenger and the bus company and its driver ceases. There is thereafter no contractual or tortious relationship.
58 It is important, in my view, to recognise that the contractual obligation or tortious duty which a bus company undertakes by accepting a passenger on to the bus is not to ensure that the passenger arrives safely at his ultimate destination. It is to act reasonably and without negligence in the conveying of that passenger to the point at which the passenger alights on to a footpath, normally at a designated bus stop. The bus company does not contract with the passenger or undertake any duty to thereafter assist the departed passenger safely to arrive at his next destination. The passenger may go in any direction he wishes, and may go directly or indirectly to his ultimate destination. He may take such time as he regards as appropriate in so doing.
59 There are strong reasons of public policy why a bus company, and its driver, should not have imposed upon them any duty to the departed passenger after the time when that passenger has been safely deposited on the footpath. Those policy considerations include the freedom of the individual to act as he wishes once he has been safely released from the temporary custody of the bus company during the transporting operation. There is no basis in principle on which the bus company should be entitled to regulate that individual's freedom of action. From the bus company's point of view there are sound reasons of policy why it should not be obliged to take responsibility for the actions of the departed passenger once he has alighted from the bus because the bus company has no power to control, or authority over, either the departed passenger or his actions.
60 It follows, in my view, that it will be the exceptional case in which it can be held that liability in tort attaches to the bus company or its driver arising from independent actions of a departed passenger.