Ryan v Nominal Defendant

That qualification has remained a part of the relevant section ever since. 55 "Public street" had been defined by the Motor Vehicles (Third Party Insurance) Act 1942 itself to have same meaning as that provided by the Motor Traffic Act 1909. The Motor Traffic Act 1909, which was the first specific motor traffic legislation enacted in New South Wales, in turn adopted the same definition of "public street" as its earlier predecessor, the Metropolitan Traffic Act 1900 (Act No 8, 1900). Section 4 of the latter stated that "'public street' means street, road, lane, thoroughfare, or place, open to or used by the public" [emphasis added]. The Metropolitan Traffic Act was the first step, as the Second Reading Speech in the Legislative Assembly makes plain, towards centralised general regulation of vehicles, drivers and other users of roads under the control of the Metropolitan Police force. Precipitating it was concern for public safety due to the growing congestion of streets in the metropolitan area. 56 Prior to enactment of the Metropolitan Traffic Act in 1900 regulation of traffic had been variously the province of: (i) the Metropolitan Transit Board (with responsibility for public vehicles such as taxicabs for hire: Public Vehicles Act 1899, and (ii) municipal councils (with responsibility for local traffic on roads within their boundaries other than main roads of the colony): Municipalities Act 1897 Pt XIV, Div 1; Sydney Corporation Act 1879, Pt V). That legislative regime was somewhat piecemeal and unsatisfactory. The earlier statutes did not use the words "a place open to or used by the public". The fullest definition was provided in the Municipalities Act 1897, which comprehended a formal legal user or enjoyment in favour of the public; s175. However, that definition was not carried over into the new statute. 57 Under the mandatory third-party insurance scheme in its various guises, it is unlawful for an uninsured vehicle to be used upon a public street or road. This effectively cast an obligation on persons who intended to use a vehicle on such a road to obtain insurance. Since it was to be assumed that persons will generally act lawfully, the legislation is beneficial in the sense that it gives people an expectation that, if they are injured by a vehicle on a public street, they will not be out-of-pocket and will be able to access a compulsory insurer for a remedy. Conversely, that expectation would be unfounded in the case of people using places which are not roads in that sense. Such users simply could not be confident that the vehicles they encountered were being used unlawfully if not registered and insured. To use the example referred to in the Minister's Second Reading Speech, a person walking through the paddocks of a private farm simply cannot know that any vehicle he or she encounters is required to be insured. It would not accord with the purpose of the legislation to make the nominal defendant liable for accidents occurring in such circumstances. Although the meaning of road cannot depend upon the subjective question of whether a person using a place would expect to encounter insured vehicles, this feature of the legislation should be borne in mind when considering whether any particular place is a public street or road under the scheme. 58 It is still the case that it is an offence to use an uninsured motor vehicle on a road: s8 MAC Act. It is still the case that it is an offence to use an unregistered motor vehicle on a road: s18 Road Transport (Vehicle Registration) Act 1997. It is still also the case that a vehicle is only eligible to be registered if the requirements of applicable third party insurance legislation has been complied with in respect of the vehicle: Part 2 Div 2, Road Transport (Vehicle Registration) Act 1997; clause 7, Road Transport (Vehicle Registration) Regulation 1998. This combination of provisions provides both the carrot and the stick that make the compulsory third party insurance scheme workable. In order lawfully to drive on public roads, a motorist must obtain registration and insurance. Corresponding to this, the liability of the nominal defendant with respect to uninsured motor vehicles only extends to liability in respect of motor vehicles, used on roads, as defined, which (a) are exempt from registration, or (b) which should have been (and are substantially capable of being) registered: s33(5) MAC Act. In this way, the liability of the nominal defendant vindicates the assumption of the injured claimant that the vehicle was being lawfully used. 59 In one important respect, the liability of the nominal defendant is narrower than that of other third-party insurers. That is illustrated by Nominal Defendant v Merritt (1988) 48 SASR 278 per Jacobs J at 283 dealing with legislation of a similar ambit. For the nominal defendant to be liable, the accident itself must have occurred on a road. By contrast, the terms of the current third-party policy, prescribed by s10 MAC Act (cf s9, Sch 1 MA Act), expressly provide that no significance attaches to where the accident occurred. The policy must simply insure, in the case of vehicles not subject to an unregistered vehicle permit, in respect of "death or injury to a person caused by the fault of the owner or driver of the vehicle … in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road)": s10(1)(a) [emphasis added]. It would appear that the words in parenthesis were included by way of emphasis. This policy without them would have had the same effect, given the earlier broad and unqualified reference to "any part of the Commonwealth". The words in parenthesis did not appear in the earlier Motor Vehicles (Third Party Insurance) Act 1942, as amended, when prescribing the policy that was required to be issued by the Government Insurance Office. However, the ambit of that policy was substantially the same. 60 Thus the legislature determined to extend the beneficial impact of the mandatory third-party insurance scheme beyond covering accidents occurring within the ambit of the statutory obligation to obtain insurance. The liability of the nominal defendant is, however, otherwise strictly co-ordinate with the obligation to obtain insurance. This is appropriate as it is the insurer of last resort which, upon the earlier analysis, is required to do no more than vindicate the assumption of members of the public that others are behaving lawfully. 61 One question raised squarely by this case is how much narrower the nominal defendant's liability should be. If the expression "open to or used by the public" were given a broad interpretation, the gap between the nominal defendant's liability and the liability of other insurers would be minimised. But error lies in narrowing the gap too far, by recourse to a purposive interpretation directed exclusively to protecting those injured by motor vehicles wherever an accident may befall. So to do renders the qualifying words "open to or used by the public" meaningless. There must be a difference between a "place open to or used by the public" and merely a "place". If the legislature had wanted to make the nominal defendant's liability co-extensive in that way with that of ordinary insurers under the scheme, it could have said so plainly. But that would be to make it do more than fill the perceived lacuna which the amendment in the Motor Traffic (Amendment) Act 1951 (No 59, 1951) was expressly enacted to fulfil. Though a question of fact and degree, there must be a point where a person who is injured by a motor vehicle is unable to take comfort from the ready accessibility of insurance, under a discrimen based on the public nature or character of the road. 62 In the light of this, it is helpful to consider in summary form various classes of injuries and their consequences under the legislation: (a) A person injured by an insured motor vehicle, whether on a "road" or not, will primarily have recourse against the third-party insurer: cf Pt 4.2, s72(2)(a) MAC Act; (b) (i) A person injured by an uninsured motor vehicle, which is exempt from registration or should have been and is substantially capable of being registered, where the injury occurs on a "road", will have recourse primarily against a third-party insurer, in the form of the nominal defendant. (ii) The nominal defendant can then seek to recover amounts paid out by it as a debt from the owner and/or driver. (iii) The nominal defendant will be unable to recover if the motor vehicle was not required to be registered, was exempt from registration or was not required to be insured: cf ss 33, 39, 72(2)(a) MAC Act; (c) A person injured by an uninsured motor vehicle, not on a "road", will have recourse only against the owner or driver of the vehicle: cf s72(2)(b) MAC Act.

The difference between class (b) and (c) is that in (b) the claimant has a readily available statutory fund to draw upon to satisfy any proven claim. It is worthwhile to note that the injured person in class (c) is not devoid of all remedy. In such cases, it is just that the economic risk that the negligent owner or driver is impecunious or otherwise judgment-proof falls not on the nominal defendant but on the injured claimant. This can be regarded as a function of the policy of the legislation in allocating the risk of injury, giving to the State the responsibility of ensuring that the assumptions it has created are not disappointed where the public element is satisfied, while otherwise leaving the risk where it lies. 63 In the context of the nominal defendant scheme the use of the phrase "open to or used by the public" can be regarded as the product of two distinct but interrelated legislative purposes. First, the definition of "public street" in the traffic Acts is intended to be coextensive with the effective reach and control of the central police force in monitoring and administering traffic law. Second, the beneficial intent and ambit of the mandatory third-party insurance scheme must be given some force without going so far as to render a "place open to or used by the public" equivalent to any place.

A "factual condition" 64 The statute provides that an area which is open to or used by the public is, if the other conditions not presently relevant are met, a "road". It has been held by the High Court that the expression "a place open to or used by the public" is apt to describe a factual condition, such that the street actually is open to or used by the public: Schubert v Lee (supra) at 592. This requires a finding by inference, derived from the constituent facts on which it is based. Of this process, though in another context, Viscount Simonds said: A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent. This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or … what is perception, what evaluation: Benmax v Austin Motor Co Ltd [1955] AC 370 at 373 65 Since Schubert v Lee is so often cited it is appropriate to consider that case in some detail. Mr Schubert was prosecuted for obstructing the passage of traffic on a road or footpath under reg 327 of the Regulation then in force under the Traffic Act 1919-1941 (WA). "Road" was defined by s4 of the Act as including any street, road, lane, thoroughfare, footpath open to or used by the public. In evidence before the Court of Petty Sessions in Perth, the Mr Schubert was alleged to have been found conducting an SP bookmaker's business in a T-shaped laneway running between separately occupied allotments of land, but which was open at all three points of entry and exit. The Magistrate entered a conviction, being satisfied the lane was intended for use by the public. Mr Schubert appealed by way of order nisi to the Full Court, arguing in part that the lane could not be a "road" because there was no proof of dedication. The Full Court judgment is reported at (1946) 48 WALR 43. The principal judgment was delivered by Wolff J (with whom Dwyer CJ and Walker J agreed), who concluded: "The learned Magistrate had evidence before him that the lane was in fact being used at the particular time by members of the public. He also saw the lane on the invitation of counsel for the appellant, and he saw evidence that it was being used for the passage of motor cars and carts. The open ends of the lane further indicate that it was intended for the use of the public in gaining access to and egress from the various allotments which abut on it. In these circumstances I think there was ample evidence on which the learned Magistrate could come to the conclusion that the lane was open to or used by the public, and came within the category of a road as defined in the Traffic Act." (at 45) 66 As I read the facts of Schubert, there was no doubt that, as a matter of fact and practice, the lane was both open to the public and used by the public. The circumstance of the alleged obstruction, while altering the extent of the openness of the lane, must primarily be regarded as constituting an impediment to the presupposed and proven public use. 67 Mr Schubert applied for special leave to appeal to the High Court (Latham CJ, Rich J and Dixon J). This was on the basis that the statutory definition only applied to places which are "open to or used by the public as of common right and not to such places although in fact open to the public if they are not places which the public is entitled to have kept open or which it is entitled to use." (at 592). That argument sought to place a gloss on the words of the statute, such that it was not applicable to places used only by the licence of the owner. 68 The Court emphasised the distinction between "public streets, roads, lanes, &c." on the one hand, and "places open to or used by the public" on the other. The Court then stated, in frequently quoted words (at 592): "The words " open to or used by the public " are apt to describe a factual condition consisting in any real use of the place by the public as the public - as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or other premises. Prima facie the words of the section mean streets, &c., which actually are open to or used by the public, so that there is some need for protection of the public in the use of such streets, &c." [emphasis added]

The High Court then went on to say (at 592-3): This is a view which has been taken of not dissimilar provisions contained in the Road Traffic Act 1930 of the United Kingdom, where a definition of the term "road" includes the following words - "and any other road to which the public has access." It has been held by the Court of Session that a road falls within the definition if the public in fact has access to it even though it is privately owned, and the public has no right of access to the road. It was so held in the case of Harrison v Hill , and that decision has been followed in England in relation to the same Act in the case of Bugge v Taylor . In our opinion the words "open to or used by the public" should, as the Full Court has held, be construed in the same way, so that a lane falls within the definition if in fact it is "open to or used by the public" whether or not there is a public highway over it." 69 The High Court's characterisation of the question as requiring satisfaction that a factual condition exists indicates that it is to be distinguished from a pure question of public entitlement. That indeed is the issue that was before the Court in Schubert. It was contended by the unsuccessful applicant that a place could only be open or used if the public had an entitlement to have it remain open or an entitlement to use it. The High Court did not suggest that entitlement was irrelevant, and indeed the authorities cited by their Honours in connexion with their decision indicate quite the opposite. However, the case stands for the proposition that lack of entitlement is not determinative. To the extent that the Nominal Defendant by its Notice of Contention seeks to uphold the decision on the ground that there could be no use by the public simply because all users were trespassers, this is unsustainable.

The complex relationship between openness and usage 70 Both openness to the public and use by the public are factual qualities of the place in question. This is especially important in considering use, often misleadingly described by reference to the purpose or capacity of the user. Assuming that the expression contains two disjunctive limbs, there are potentially three types of area with different combinations of attributes which can be roads: (a) Areas which are both open to the public and used by the public; (b) Areas which are open to the public, but not used by the public; (c) Areas which are not open to the public, but are used by the public; 71 A survey of the many cases dealing with whether a particular place is open to or used by the public reveals that it can be surprisingly difficult to slot them exclusively into one or other category in this schema. The bulk of cases straddle the overlap between categories (a) and (b), where the Court concludes that a place is open to the public, and, having done so, does not need to analyse whether such areas are also used by the public. Indeed in most cases, including the present, the question of actual use by the public only seems to arise for consideration once it has been concluded that the area was not open to the public. 72 It is submitted by the appellant that there can be no conceptual overlap between the so-called disjunctive limbs of the statutory test. It is said that entitlement may be relevant at most to the question of openness. However, I am of the view that the relationship between the two limbs of the statutory test is more complex than that. It is too simplistic to seek to quarantine the question of openness from the question of use. Even if it were possible as a matter of logic to separate the two, it is likely to be impossible as a matter of practical proof. 73 Rather, openness and use are subtly interrelated. The concept of openness inherently connotes the factual potential for use, whereas use itself is typically the fulfilment of that potential. This goes some way to explaining why openness is often treated as logically anterior to use. 74 Whether a place is "open to the public" is influenced by the nature of the place and the uses for which it is designed or adapted: cf R v Abrahams [1984] 1 NSWLR 491 at 541 per O'Brien CJ of Cr D. Places can be loosely categorised into a number of broad categories based upon the uses for which they are intended. A town square is in a different category from a supermarket car-park and the gated driveway of a private residence. In the first case, the place is designed for the congregation of large numbers of people for public intercourse. In the second case, the place is designed for those persons who are interested in shopping to gather in accordance with their common interest. In the third case, the place is designed for private individuals to access their homes excluding all whom they do not wish to entertain. In the first case, there is a public right, in the second a public invitation, and in the third no public element of either sort. 75 The nature and extent of use is clearly relevant to determining whether a place is open to the public, as the factors consistently taken into account by the Courts demonstrate: cf Harrison v Hill (1931) SLT 598, Schubert v Lee (1946) 71 CLR 589, Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728. There is no reason why the nature and extent of any openness (or lack thereof) should not be relevant to determining whether a place is used by the public. 76 Whether a place can properly be said to be "open to the public" is the product in each case of a subtle dynamic between the two fundamental concepts which the potentiality of openness entails: potential for physical use and potential for lawful use. On the one hand some places have no or no adequate barriers to entry by all and sundry, but it would be misleading to describe them as "open to the public", if the landowner has erected signs proclaiming 'Private Property: Keep Out'. On the other hand other places may be entirely physically closed to the public. Then it would be wrong to view them as not open to the public if the landowner had by his or her actions effectively signalled that the public were invited to enter. In each case, the first appearance is belied by the true situation. This dynamic between the potential for actual and lawful use is the means by which the private property rights recognised by law are balanced against the actual behaviour of members of the public. This is borne out by authority, albeit using a less theoretical framework. 77 The point was made as long ago as 1931 by Lord Clyde in the leading case of Harrison v Hill (1931) SLT 598; (1932) JC 13. There the High Court of Justiciary considered a stated case asking whether a private road connecting the farmhouse to the public highway was a "road to which the public has access" so as to constitute a road for the purposes of the Motor Traffic Act 1930 (UK). There was no gate or obstacle impeding access or any intimation that the road was not open to the public. The appellant had been convicted of driving on a road while disqualified from holding a licence. His argument was that his conviction was unsustainable because those members of the public who used the road used it not qua members of the public but qua licensees or trespassers. The Sheriff-Substitute had found that members of the public having no business at the farm frequently walked upon it. 78 The Lord Justice-General, Lord Clyde held (at 600): "I think that, when the statute speaks of " the public " in this connection, what is meant is the public generally, and not the special class of members who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways.

I think also that, when the statute speaks of " the public " having "access" to the road, what is meant is neither (at one extreme) that the public has a positive right of its own to access, nor (at the other extreme) that there exists no physical obstruction, of greater or less impenetrability, against physical access by the public; but that the public actually and legally enjoys access to it. It is, I think a certain state of use or possession that is pointed to. There must be, as a matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed - that is to say, must be permitted or allowed, either expressly or implicitly , by the person or persons to whom the road belongs. I include in permission or allowance the state of matters known in right of way cases as the tolerance of a proprietor. The statute cannot be supposed to have intended by public "access" such unlawful access as may be had by members of the public who trespass on the property of either individuals or corporations.

In arriving at these conclusions I am partly influenced by the broad consideration that, as the statute is intended for the protection of the public, it is natural to suppose that the statutory traffic regulation should apply to any road on which the public may be expected to be found. Hence the inclusion of such private roads as the public (generally) is, as a matter of fact, allowed to use, and the exclusion of those which the public (generally) cannot lawfully use at all." [emphasis added] 79 In this conclusion he was joined by Lord Sands, who added (at 601): "In my view access means, not right of access, but ingress in fact without any physical hindrance and without any wilful intrusion. In one view it is a technical trespass to put a foot upon an owner's land without the owner's permission. But, as is a matter of common knowledge, there are many roads upon which members of the public enter without any sense of wilful intrusion. In my view, any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied." 80 The decision in Harrison v Hill was followed in England by Lord Caldercote CJ (with whom Hawke and Humpreys JJ agreed) in Bugge v Taylor (1940) 104 JP 467 in a case stated by the Surrey Justices asking whether the forecourt of a hotel was a "road to which the public has access". It is evident that their Lordships in Harrison and in Bugge respectively considered that at the point where members of the public wilfully render a place open to them by defying the owner's assertion, consistently maintained, of his private rights of property, it should not be open to them to say that the place was one to which the public have access. The public does not have access; it has taken access. Thus public access is not a characteristic of the place at the relevant time nor the product of a de facto tolerance by the owner. 81 This reasoning is applicable to the question of openness to the public. Despite dealing with a different statutory formulation, Harrison v Hill and Bugge v Taylor are particularly relevant as they were referred to approvingly in the leading Australian case on this area; Schubert v Lee. The High Court described the UK provision as "not dissimilar". Indeed it is evident from the comments of their Lordships in Harrison that the concept of "access" comprehends issues which overlap the two concepts of openness and use (themselves interrelated) employed by the NSW statute. 82 It is possible to put forward a tentative taxonomy of the relationship between openness and use, based upon different degrees of relationship between the landowner and the potential user. It is the relationship between the landowner and those who may use the land which is the primary criterion of openness: (1) Public places - First, in the case of a place which the public have an entitlement to use, the place will be said to be " open to the public " regardless of whether in actual fact it is a place which the public can enter without impediment. This is because the public have a collective right vis-à-vis the (usually governmental) owner to use the place, and any member of the public who in fact uses it can reasonably expect others to be using it also. In such a case it is unnecessary to consider the question of whether the place is " used by the public ". It is established by Schubert v Lee that the ambit of the legislation is not confined to such public places. (2) Private property to which the public are invited - Second, in the case of a place which is held open by a private owner for the public to enter, the place will be considered to be "open to the public" only if the owner is in fact making it available to the public. The openness is co-ordinate, both in scope and in time, with the owner's invitation. Those who use the place are invitees and unless the invitation is issued indiscriminately to the public at large the place will not be open to the public: Mercantile Mutual (supra). Because the land has a potential for use which exceeds that potential inherent in its openness, the land may nevertheless be used by the public, if the requirements of use are satisfied. (3) Other private property - Third, in the case of a place which the public has no entitlement or invitation to use, it can only be said to be "open to the public" if it is in fact used by members of the public, the owner having failed consistently to maintain a prohibition on that use, though the users be technically trespassers. Tolerance of the owner is a shorthand description of that state of affairs. In this case the question of use must be logically anterior to the question of openness. If Harrison v Hill were tried under the NSW statute, it would have to be determined that the private road was used by the public as such (as indeed the Sheriff-Substitute was seemingly satisfied). Having been satisfied of use by members of the public as such (rather than as members of a smaller subgroup thereof) it would also be possible (albeit unnecessary) to show that the place was also open to the public. This use may fall short of being properly characterised as a use by the public, but yet may serve as cogent evidence to prove that the place is de facto open to the public by the tolerance of the landowner. Casual or occasional use may not be use by the public, but it may (in conjunction with other evidence) allow the Court to infer that the place is open to the public because the potential for actual use is the stronger element than the absence of permitted use. 83 It is important to note that similar evidence could therefore be used to prove use by the public and openness to the public. In some cases the level of use will allow the plaintiff to prove openness (in conjunction with other factors).

What is use by the public? 84 In all other cases, it must be considered whether the use is properly characterised as a "use by the public". To answer this question, matters of fact and degree are critical. If the use is but casual or occasional the place may be held not to be used by the public. 85 There are clearly two elements to the expression "used by the public". First, there must be an actual use of the relevant place. Second, that the use must be by the public. The relationship between the two elements is symbiotic. Although the intrinsic generality of use is narrowed by reference to who are its users, whether or not those users are in fact the public is a question to which the nature and intensity of the use is relevant. It is well to remember the cautionary words of Lord Hoffmann in Regina v Brown [1996] AC 543 (at 561): "The fallacy … is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole." 86 The expression 'the public' is one that has proved to be particularly amorphous, its own meaning regularly being coloured by the context in which it is found (see for example the discussion by Gummow J in the context of broadcasts to the public: Australian Performing Right Association v Telstra Corp Ltd (1993) 46 FCR 131; upheld by the High Court (1997) 191 CLR 140). The chameleon character of the words 'the public' is demonstrated by a few examples. Depending upon the context, it can mean the res publica in the abstract, or the community as an aggregate, but not in its organized capacity; hence, the members of the community. Sociologists have recognised that it may be more accurate to think in terms of 'a public' than in terms of 'the public', because the expression (whether prefaced by the definite or indefinite article) so often refers merely to a collective group regarded as sharing some cultural, social, or political interest but who as individuals do not necessarily have any contact with one another. Experimental social psychologist, F H Allport commented that: "Since the public is no specific group of individuals, but is defined wholly by the range of the common interest in a particular transaction, there may be a separate public for every issue raised. We are compelled, therefore, to think of various publics." ( Institutional Behaviour (1933) v, 87) 87 In Mercantile Mutual (supra) the words "the public" as used in Schubert v Lee seem to have been equated to "members of the public as such" by Glass JA (at 735). That case primarily concerned whether a marketplace was open to the public. In relation thereto, Glass JA held that the place must be "open indifferently to any member of the public without any discrimination", commenting: "I do not think that it ceased to be open to the public because only those citizens minded to buy fruit and vegetables were likely to enter. After all a public baths would not cease to be a place open to the public merely because only swimmers entered nor would a museum cease to be open to the public merely because its exhibits had an appeal to a limited class only" (at 735) 88 A similar approach was taken in R v Abrahams (supra) at 526-7, per O'Brien CJ of Cr D (with whom Street CJ agreed), in considering whether a hotel car park was a "public place" for the purposes of a driving offence under the Motor Traffic Act 1909. See also, in the prospectus context Lee v Evans (1964) 112 CLR 276 at 285 per Barwick CJ, Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201 at 208 (Mason ACJ, Wilson, Deane & Dawson JJ); Solomon v Corporate Affairs Commission (NSW) (1992) 10 ACSR 67. 89 Glass JA in Mercantile Mutual, made clear that the fact that only a limited class of persons take advantage of the potential for use does not affect the nature of the potential itself. Glass JA, like almost all the authorities in this area, was considering the question of openness to the public. The character of a place as in fact open to the public was not altered by the fact that only a limited class of the public (with a common interest) would be likely to make use of that openness. I would respectfully agree. The case would be different if access were limited by the owner of the land to a narrow class, such as the local trail bike association and no others. They could hardly be described as the public. 90 Turning from openness to the distinct question of public use, one may expect that the nature of the land or place and the uses to which it is adapted will naturally limit the range of common interest of those inclined to use it. Unlike with openness to the public, it is unproductive simply to ask whether a place is used indifferently by any member of the public without any discrimination. Such a statement could only be true of a place which has an unlimited range of possible uses or of persons who do not care what they are doing or where they are doing it. Different considerations must pertain to the question of use in a public, collective sense. The issue is at what level or intensity does the usage, which may be varied in character though adapted to the land in question, deserve the epithet of public use as distinct from a more limited use by persons categorised legally (trespassers or invitees) or in some other way (tradespersons, trail bike riders, etc). 91 That analysis should not be overly refined. The key to the High Court judgment in Schubert v Lee is the proposition that whether a place is used by the public is a factual condition. It is the sort of question that could fairly be put to a jury to answer using their common sense and knowledge of community standards. What the expression "use by the public" connotes is a sense of members of the general community variously using the place for whatever purposes it is adapted, with some degree of frequency and intensity. All of these things are, to a considerable extent, matters of impression though their appraisal must be on a principled basis. That said, it is not possible to lay down a general rule as to what feature in each individual case will tip the balance. Many features peculiar to the land, its location and the general surrounds will be relevant. By way of example consider a partially fenced area of private land with a path on it in rural areas and an identical area in central Sydney. In both cases a number of people use the track as a short-cut to their destination. It would clearly be absurd to require the same degree and intensity of use to constitute a "use by the public" in both cases. If each week 25,000 people walk past the track in central Sydney and only 20 people flout the prohibitions, it might be very difficult to characterise that use as a "use by the public". However a different result may well follow in the case of rural land where, say, the weekly traffic is only 250 people and 20 people still flout. 92 The way of giving a rational meaning to the expression "use by the public" is to import into it considerations of the qualitative and quantitative characteristics of the use. That is why use may lose its public character if it is only casual or occasional or cannot be said to be a real use by the public. But the qualities of the place are also relevant insofar as they provide the context for assessing the weight of the qualitative and quantitative characteristics of use against the benchmark of "the public". 93 One example of the way this issue is to be approached is found in Nominal Defendant v Merritt (supra). There a young girl was injured when she was hit by an uninsured trail bike being ridden on an unfenced reserve owned by the local Council. The South Australian statute provided that a place was a road if it was either "commonly used by the public" or a place "to which the public were permitted to have access". The trial judge was not prepared to find, due to a narrow evidentiary and pleading point, that the reserve was a place to which the public were permitted access, but found for the plaintiff on the basis that the place was commonly used by the public. There was evidence that the reserve was frequently used by children in the manner in which one would expect children to use the reserve (in various recreational activities), and by various trail bike riders (many of whom but not all were local). The Full Court dismissed an appeal which sought to confine the term "use" in the statute to vehicular use. Millhouse J commented: I am satisfied on the evidence, without canvassing it, that this was a place commonly used by the public, in the sense that the use was more than casual or occasional. It was (and is) probably used mainly by those living nearby but that is not the point: it was used by people, children playing, boys on their trail bikes and so on. The learned trial judge, rightly, could not find because of lack of evidence that the public was "permitted to have access" but I should be very surprised if they were not. It does not matter to the decision because the latter part of the definition is in the alternative." (at 289) 94 This therefore was a case where the same evidence could theoretically have shown access (openness) but was actually deployed to demonstrate sufficient frequency and intensity of use to show common use by the public. Merritt of course was decided on its own facts, but the same approach should apply when considering the NSW statute and cases such as this.

Is entitlement irrelevant to or determinative of use by the public? 95 The appellant seeks to upset the adverse finding of fact made by the trial judge on the basis that she impermissibly conjoined two disjunctive limbs of the statutory expression in her focus upon entitlement to use the land. Entitlement, it was submitted, could be relevant only to the question of whether the place was open to the public, which had here been conceded was not the case. For its part the Nominal Defendant took the opposite extreme, submitting by its Notice of Contention that entitlement to use the land was determinative of the issue (against the appellant). 96 It follows from what I have already said that I do not accept the contention of the Nominal Defendant that lack of entitlement is determinative. Nor do I agree that entitlement is irrelevant to considering whether, as a question of inference from fact, a place can be said to be "used by the public". It may be more directly relevant to openness, but it is also relevant to the qualitative characteristics of the usage. These bear on whether they can fairly be considered a use by the public. For example, the fact that the uses are substantially trespassory may lead a trial judge to require a greater magnitude of use before being willing to declare that the land was de facto used by the public.

THE EVIDENCE 97 I turn now to the detailed evidence before the trial judge, and her treatment of it particularly with respect to the factual findings made. The trial judge appears to have based her finding as to the intensity of use of the track (at Red, 30S-V) in part upon her assessment of the credibility of certain witnesses. The general conclusion of the trial judge in that regard was that "the usage of the land as stated by the plaintiff's witnesses is overstated" (Red, 31M). The appellant submits that the trial judge failed to make detailed findings of fact and gave adequate reasons for her decision in this regard, and that this finding was manifestly against the weight of the evidence (in the sense used in State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1990) 160 ALR 588 at 607). 98 The appellant called evidence from two local residents of Young Street in Heddon Greta (Messrs Jenner and Schmierer) and also from Harper and Ryan himself, both being 'regulars' at the gate. Evidence was also given by the investigating police officer (Senior Constable Herring). Evidence in the Nominal Defendant's case came from Ms Garven who was also a "regular" and from Mr Macleod of Coal & Allied, who visited the property on a monthly basis. No evidence was received from Mr Hague. I deal in turn with the evidence of each.

The evidence of Mr Jenner 99 Mr Jenner lived on the corner of Young and Trenchard Streets, Heddon Greta, about 600 metres from the gate (Combined, 12U). Although his house fronted onto Trenchard Street, he gave evidence that he could see the gate from his backyard (Combined, 6G-I). Mr Jenner gave evidence that from 1995 to late 1996 he was in the habit of using the track for exercise with his dog at least 3 to 4 times per week, the walks taking approximately 1 hour (Combined, 9M-10J). Mr Jenner gave evidence that in the course of his walks, he invariably saw others using the track for a number of purposes: "Q. What did you see these other people doing, if anything? A. Well I used to see other people walk - some walking, some on motorbikes, some on pushbikes, some on horseback, not all the time on horseback, they weren't as very - as frequent as you'd see them - always you'd see motorbikes or the pushbikes.

Q. How often did you encounter people on pushbikes or motorbikes? A. I've never walked down there that I haven't seen a motorbike or a pushbike, never.

Q. And in which part of the paths of the track did you see pushbikes or motorbikes, focusing on this period 1995 to 1996? A. Yeah. Between the gate and the racetrack, is that what you're asking me?

Q. Yes? A. That's where I saw them between the gate and the racetrack. …

Q. -- generally speaking what was the age range of the motorbike riders that you used to see? A. All ages, from young ones - when my next door neighbour, when he started I suppose he was only about 6 or 7, he used to ride the real little bikes, motorbikes, the little Pee-Wee one they call them and then just through the years they've gone up to the bigger bikes. But you'd see all sizes - well I saw all sizes of bikes, from little bikes to the big ones.

Q. Did you ever see people with any vehicle other than pushbikes and motorbikes? A. Yes.

Q. What sort of other vehicles did you see? A. I used to see motor cars and I used to see utilities and small trucks, the little tip trucks. They used to go down there to dump rubbish, they still do, and trailers, cars with trailers on, sometimes just out of the boot. (Combined, 10Q-12D) " 100 Mr Jenner did not resile from this evidence in cross-examination. He gave evidence that he would see others using some part of the track during his round trip from his home to the Speedway and back (see Combined, 31W-32E). He usually took his walks early in the morning or later in the afternoon, keeping mainly to the track (Combined, 27R-W). He denied that when he took his walks in the morning he would not see motorbikes, pushbikes or other walkers. He could not say whether those people had entered the land from the gate or from any one of the other entrances onto the land in general. He gave evidence that when he took his afternoon walks on weekdays he saw the group of youths congregating at the gate, with a number of pushbikes and some trail bikes (Combined, 36K-37V). It was put to Mr Jenner in various forms - and resolutely denied by him - that he had exaggerated the level of use of the land by himself or others (the most explicit example being at Combined, 48C-E). 101 The trial judge recounted the evidence of Mr Jenner (Red, 18P-20I), including the substance of that which I have set out in the immediately preceding paragraphs. Later in her judgment, the trial judge stated that she had formed an adverse view of Mr Jenner's reliability on the basis that his evidence that the gate was never closed was contradicted by the evidence of Mr Macleod and Ms Garven (both of whom she found to be reliable). This caused the trial judge to "doubt the accuracy of his evidence as to the numbers of bikes and cars he says he saw using the track." (Red, 31E-F). All of Mr Jenner's evidence was to be tarred with the same brush of unreliability. The trial judge provided no other detail of quite why these doubts arose. The trial judge did not specifically state that she found Mr Jenner not to be a witness of credit; indeed contradictorily she specifically stated that she did not find him to be "colouring his evidence in favour of the plaintiff" (Red, 30X). Rather, it appears that her assessment of the reliability of Mr Macleod and Ms Garven necessarily meant that any evidence inconsistent with theirs was to be discounted. Whether overall that approach was challengeable on appeal is one of the issues in this appeal.

The evidence of Mr Schmierer 102 Mr Schmierer was a resident of Heddon Greta, who lived about 600 yards from the gate on the corner of Young and Bowden Streets. He was retired. Before the end of 1994, he had been accustomed to use the track about once or twice a week, generally in the mornings, for the purpose of walking his dog (Combined, 51I-S). He conceded that he did not see a lot of people at the times he walked on the track. After 1991, however, Mr Schmierer did not regularly visit the track, but could see it clearly from his house. Nevertheless, Mr Schmierer gave circumstantial evidence of use of the track by trail bike riders and cyclists. Although the questions asked of Mr Schmierer may have been at first strictly limited to the period before the end of 1994, it is clear that his evidence pertains to the whole period prior to the accident. As will become apparent, he neither drew nor was asked to draw any distinction between the period in late 1994 and the further period leading up to the accident in February 1996. 103 Mr Schmierer gave evidence that he had heard the noise of motor trail bikes coming from the direction of the gate in the afternoon, and witnessed groups of riders going down Young Street past his house and through the gate (Combined, 52G-S). In response to a direct question from the cross-examiner, Mr Schmierer stated that before the accident "there was a mob of young fellows who were always going past" his house in the direction of the gate (Combined, 54T). The mob included Hague. Mr Schmierer also stated that these bike riders generally continued straight through to the end of Young Street and the gate, rather than turning off into the last preceding side street (Combined, 58I-S). Mr Schmierer denied the proposition that he was "totally guessing" where the noise was coming from, whether from the race track itself, other areas of adjoining scrub, nearby streets, on the track or around the gate (Combined, 62B-T). Mr Schmierer did not give specific evidence of the frequency of the activities which he described. 104 The trial judge recounted the evidence of Mr Schmierer (Red, 20J-21M) and then treated it in the same fashion as that of Mr Jenner, holding his evidence to be unreliable "simply because he is mistaken when he says the gate was never locked before the accident" (Red, 31I-J).

The evidence of Senior Constable Herring 105 Constable Herring was the principal investigating officer who had attended the scene of the accident on 9 February 1996. On that day he had driven his 4-WD police wagon over the dirt mounds to access the crash site (Combined, 67I-K). He stated that an ordinary station wagon would have had trouble negotiating the mounds (Combined, 71N). Constable Herring gave evidence of the physical characteristics of the site, and described the track as being in a "reasonably flattened and well used condition" (Combined, 68R) and described observing the marks of traffic on the mounds on either side of the gate: "Q. While you were at the scene of the accident did you notice anything about the mounds of earth adjacent to the gate being the mounds which you'd negotiated with your police vehicle? A. Certainly the mounds of earth were fairly well worn. They weren't high, they were quite low and it was obvious that they were - there were marks - or by-passes worn around the gate over the mounds of earth.

Q. I take it you could differentiate between the tyre track of a motorbike and the tyre track of an ordinary four wheel vehicle. Did you see any tyre marks in the area inside the gate, that is down towards where the Coke bottle was in [Exhibit] A5? A. Yes for any type of wheel track?

Q. Yes. [A.] Well there's obviously - I can see from the photograph that there's certainly - what appears to be thinner motorcycle tracks." (Combined, 68J-P)

(It seems clear that this last entry in the transcript contains an error - the last sentence is the answer given by the witness, it being immediately followed by the next question. Accordingly I have inserted the italicised "[A]".) 106 The trial judge did not refer at all to that significant evidence of Senior Constable Herring, aside from noting that he was called in Darren Ryan's case.

The evidence of Mr Harper 107 Harper was a fellow schoolmate of Ryan's and a regular attendee at the gate. The trial judge summarised Harper's evidence in a lengthy passage (Red, 21Q-22Q, based on the transcript passage in Combined, 77O-81): "Mr Harper started to go to the area known as the gate in 1992/1993. He was in Year 8 at school. Up until the time of the accident he says he went there regularly, four or five times a week, mostly afternoons and week-ends. He would sometimes go to the area during school hours and says in the period leading up to the accident he would sometimes stay there all week end including sleeping out in the area overnight.

His means of transport to the gate whilst he was in Year 8 was as a pillion passenger on somebody's bike, riding a pushbike or walking. By February 1996 he had his own bike. He had a racing bike and a track bike. His bikes came and went. He rode to the gate on a bike about 50% of the time.

There were always other people at the gate and their ages varied from 13 to 18. On average after school there would be 8 to 12 other children present. About half of them were school friends. There was no set arrangement to meet at the gate, they would just congregate there after school. It was mostly to smoke cigarettes and ride bikes. In the early days there were 2 or 3 bikes to ride. The bikes were ridden from the Speedway on the Maitland side to the gate at the end of Young Street. The gate was the meeting point. A dirt bike track with jumps had been created 15 to 20 metres inside the gate. The children took turns to ride the bikes, those not riding would sit nearby and watch. The pushbikes were also ridden on the trail bike track.

In the time leading up to the accident, Mr Harper says he was going to the area 4 to 5 days a week and missing school. He estimates the group who were also present to comprise 8 to 12 other children. He says motorbikes were ridden 100% of the time he was present. Robbie Hague was a regular attendee and he was there about the same amount of time as Mr Hague.

Apart from the teenagers who hung out at the gate, Mr Harper says the track was used by people walking their dogs and by people to dump rubbish."

I have set out this passage in full because the trial judge made no adverse comment upon it though supportive of the appellant's case. Indeed she made no reference to it at all when it came to assessing the nature and level of usage of the track, apart from the catch-all finding that the usage of the land as stated by the plaintiff's witnesses was overstated. 108 In cross-examination it was put to Harper, and denied by him, that he was not at the gate as often as he had said (Combined, 104U). He was also subjected to a line of cross-examination suggesting that the number of children present were less than he had stated, and that he saw few adults while he was there since the spot was picked for the reason that there were few adults who would witness the clandestine smoking (Combined, 94-95, 100-104). Mr Harper in substance denied that he was overstating the usage of the track and land by himself, his friends and other adults.

The evidence of Darren Ryan 109 Ryan gave evidence that he first went to the track about 6 months prior to the accident and went there on almost a daily basis in the after-school period from about 3.30 or 4pm, staying until around 5pm to 6pm (Combined, 116T-117T). On weekdays he would ride his pushbike from his home in Kurri Kurri, whereas on the weekends he would take his motorcycle. He gave evidence that about 3 to 5 members of the group had their own motorcycles and someone was riding a motorbike "practically all the time" (Combined, 118B-G). He gave evidence of witnessing others using the track: "Q. When you were at the track after school and on weekends during this period of about six months [before the accident] did you ever see anyone there who wasn't a teenage or school friend? A. Actually now that I think about it yes, yes I did."

Q. Did you see anyone doing anything other than hang out around the bikes? A. Yes I seen people bushwalking ands things like that. There was a lady that came down there fairly often to visit …

Q. Apart from motor bikes did you ever see any other vehicles? A. Yes.

Q. What sort of vehicles? A. Cars.

Q. What did they appear to be doing? A. Actually they were driving, they had their children in there as well." (Combined, 122S-123J) 110 In cross-examination, Ryan was challenged on his use of the words "now that I think about it", but denied that he had thought long and hard about that issue (Combined, 124H-O). Otherwise, his evidence as to the usage of the track was not challenged. 111 Again the trial judge did not recount the evidence of Ryan in this respect, or make any reference to it whatsoever in assessing the evidence as to the nature and level of usage of the track. She made only one brief reference to the evidence of Darren Ryan, in any of its aspects: "The plaintiff was called to give evidence. It is clear he has sustained significant brain damage. It is not in dispute that his evidence is unreliable. It is clear that he has sought to reconstruct in his own mind what occurred on the day of the accident. He did not regain consciousness until he was in hospital and his next complete recollection is waking in the rehabilitation unit at Rankin Park Hospital some weeks later." (Red 18G-K)

The appellant submits that this itself demonstrated error, namely that the trial judge had misunderstood a concession made that Ryan's evidence was unreliable insofar as it concerned the events of 26 February 1997, by taking it to mean that Ryan's evidence was unreliable per se or so far as the pre-accident circumstances were concerned.

The evidence of Ms Garven 112 Amanda Garven was called by the Nominal Defendant to give evidence as to the circumstances of the accident. She gave evidence in chief that she had been a regular attendee at the gate for the 12 months preceding the accident, going there "nearly every afternoon five days a week" (Combined, 141S-T). In cross-examination, the substance of Ryan's case as to the use of the track was put to her (Combined, 151J-156). In written submissions, Mr Petty SC fairly sets out her evidence from that passage of cross-examination in summary form, the substance of which I set out below: (a) There was a group of " regulars " who used to meet at the gate after school (Combined, 151K,X); (b) The group varied between a minimum of 4 to 6 and a maximum of 8 to 10 or more with a "hard core" of about "half a dozen" (Combined, 151Q-V); (c) There were usually "a couple" of motorbikes there and bicycles (Combined, 152P-S, 153B); (d) There would be at least one motorbike constantly going up and down the track (Combined, 153H,W); (e) Riders would sometimes go over the mounds and do wheelies outside the gate creating a cloud of dust and smoke (Combined, 153K-O); (f) The boys not riding motorbikes would ride a bicycle along the track (Combined, 154E-H); (g) The other teenagers present would congregate on either side of the track in the area where the accident occurred (Combined, 154J-M) (h) There would be a constant passage of motor bikes and bicycles during the 2 to 3 hour period after school (Combined, 155D-I); (i) There was only one regular lady, who walked at 4.30pm, whom she could remember having seen walking her dog along the track (Combined, 155T-156C); (j) On a few occasions on week-ends, she saw cars with trailers going down the track. She also saw large heaps of rubbish already dumped in the vicinity of where the group congregated, these heaps being bigger than that which a wheelbarrow could carry (Combined, 156F-M). 113 The trial judge recounted Garven's evidence in this regard very briefly, devoting only two lines to what emerged in cross-examination, saying that "when cross examined she conceded that cars with trailers were seen on the track and that rubbish was dumped on the land" (Red, 28B-C). Later in her judgment, as I have previously mentioned in connection with the evidence of Messrs Jenner and Schmierer, the trial judge stated that she found Garven to be reliable (Red, 31B), and nowhere hints that she considered Garven to be overstating the usage of the track. 114 On appeal, the appellant contends that if the judge found Garven to be reliable, and Garven essentially corroborates the nature and level of use attested to by the plaintiff's witnesses, then the discounting of the plaintiff's witnesses by reference to Garven's evidence was erroneous. The trial judge, it is submitted, should have considered the evidence of Garven and all the other witnesses and made the finding that the track relevantly was used by the public, resulting in a verdict for the appellant. The only alternative to that is said to be a new trial for failure to consider all the relevant evidence on the issue.

The evidence of Mr Macleod 115 Mr Macleod was the Manager of Closed Operations employed by Coal & Allied from 1989 to 1999. He visited the property within which the track was located, the total area of which was about 80 hectares, about once a month on average, entering through the gate at the end of Young Street (Combined, 168S). Mr Macleod would either visit the Heddon Greta property early in the morning at the beginning of his circuit or in the mid-afternoon between 2pm and 4pm (Combined, 174F-I). He would spend anywhere from 20 minutes to 2 hours on the property, only a fraction of which was spent in the vicinity of the gate or the Speedway (Combined, 176H. Mr Macleod gave evidence that on his visits to the property he would occasionally come across persons walking on the property or dumping grass clippings on the Coal & Allied land near the gate (Combined, 172U-Y). He also would sometimes see trail bike riders on the property, but could only estimate that he saw a trail bike rider less than 50% of the time (Combined, 173W-174D). Nevertheless, he agreed in cross-examination that trail bike riders and rubbish dumpers were a "chronic problem" on the larger properties in the area (Combined, 177M-W, 179B-J). In fact he agreed that the mounds were put in at the Heddon Greta property to try to deter those groups of people (Combined, 178N-179J). Mr Macleod's recollection was that the mounds had some measure of success with the rubbish dumpers, but not with the trail bike riders: "Q. And even after the mounds of earth were put in I suggest to you that you used to see signs of wear on those mounds which plainly indicated that the trail bike riders were going over the mounds and not being deterred by -- A. That's correct.

Q. -- is that right? A. That's correct. (Combined, 178O-R) …

Q. So your recollection is that once the gate and the mounds went in that circumvented, stopped people with vehicles, not motor bikes, getting in and dumping rubbish beyond the gate, is that right? A. That's correct. (Combined, 179G-H) 116 The trial judge did not make much comment upon the substance of Mr Macleod's evidence, other than finding him to be "reliable" and preferring his evidence that the gate was generally locked over the evidence of Messrs Jenner and Schmierer.

The lack of evidence from Mr Hague 117 Hague, the rider of the motorcycle, made no appearance to give evidence despite being under subpoena. An affidavit was sworn and filed by the solicitors for the defendant setting out the steps taken to compel Hague's attendance, but no application was made for any bench warrant. The trial judge refused to draw any adverse inference from the failure of Hague to give evidence (Red, 25S-V), or more properly refused to strengthen an inference otherwise capable of being drawn: Jones v Dunkel (1959) 101 CLR 298. The appellant claims that the trial judge erred in this regard. If the inference had been drawn that the evidence of Hague would not assist the Nominal Defendant's case (in particular in respect of the usage of the track), the appellant submitted that the trial judge would have been entitled more readily to accept the other evidence of Messrs Jenner, Schmierer and Harper. In circumstances where Hague was the true forensic opponent, the appellant submitted that the inference should have been given its full effect.

The Trial Judge's use of the evidence 118 In short, the trial judge appears to have based her findings on the intensity and nature of usage of the track upon a preference for the evidence of Macleod and Garven, whom she found were reliable witnesses (Red, 30Y-31A), over the evidence of Messrs Jenner and Schmierer, whose evidence in this respect she doubted. Curiously the judge did not explicitly refer to the evidence of Harper or Senior Constable Herring in this regard. Nor, as I have said, did she make any reference to the evidence of Ryan. The trial judge merely concluded that "the usage of the land as stated by the plaintiff's witnesses is overstated" (Red, 31M). The appellant submits that the trial judge failed to make detailed findings of fact and give adequate reasons for her decision in this regard, and indeed, that this finding was against the weight of the evidence. In particular, the appellant submits that the evidence of Garven means that the finding that the plaintiff's witnesses overstated the level of use is insupportable. It is said by the appellant that Garven's evidence bolsters rather than rebuts the evidence of the plaintiff's witnesses as to the nature and use of the land.

DISPOSITION OF THE APPEAL Ground 1 - Statutory basis of the claim 119 I have previously explained why in this case it does not matter whether or not Darren Ryan's claim falls to be assessed under s27 MA Act or under s33 MAC Act. I do not propose to deal in any further detail with the matter raised under Ground 1, which was not in any event argued fully on appeal. If the trial judge were in error in her construction of s31 of the MAC Act - a matter of some doubt in the light of the recent decision of this Court in Wythes v McCaffery [2004] NSWCA 367 - nothing hangs on it. It cannot be said that any error of this kind vitiated the result in any way. The more substantive questions are those I have previously referred to in the context of outlining the trial judge's decision. That is, should the trial judge's conclusion be disturbed on appeal that the track was not a road or public street because it was not "open to or used by the public".

Grounds 3 - 5: Evidentiary conclusions 120 Before turning to the resolution of the ultimate issue I need to consider the issues raised by Grounds 3, 4 and 5 of the Notice of Appeal. These grounds complain of the intermediate findings of fact upon which the trial judge founded her ultimate conclusion that the place where the accident occurred was not "open to or used by the public". 121 Ground 4 suggests that a Jones v Dunkel inference should have been drawn against the Nominal Defendant because of the failure to call evidence from Hague. This turns on whether it is proper to draw an inference that Hague's evidence would not have assisted the Nominal Defendant's case on the relevant issue. The evidence of Hague would clearly have been critical to any question of whether he was negligent or whether Ryan was contributorily negligent, he being the true forensic opponent in that regard. However, the issue between the parties here was a different one, whether the accident occurred on a 'road', and one in which Hague cannot properly be regarded as the true forensic opponent. On that issue, Hague cannot reasonably be regarded as being in the camp of the Nominal Defendant such that it can be inferred that the failure to compel his attendance was because it was feared to call him. There is no room for the principle in Jones v Dunkel to operate where there is no adverse inference already capable of being drawn which can be strengthened by the failure of the party to call the witness. The lack of evidence from Hague does not assist the appellant in seeking to overturn the trial judge's findings of fact as to the nature and level of usage. 122 On Ground 3, I accept the appellant's submission that the trial judge seemingly failed to have regard to the evidence of Ryan on the nature and intensity of usage of the track. The trial judge simply made no reference whatsoever to his evidence in considering whether the land was "open to or used by the public". It is true that a trial judge is not bound laboriously to set forth all the evidence and enter upon a detailed written analysis of its minutiae. But the adverse manner in which the trial judge dealt with Ryan's evidence demonstrated to my mind that she unfortunately had failed properly to comprehend the extent of the concession as to its reliability made by counsel. The apparent failure to have regard to Ryan's evidence was an omission which may well have caused the judge to have an incomplete understanding of the factual issues involved and thus to make a decision which was not based on the totality of the evidence. 123 Whether that error had a material impact upon the precise finding that the plaintiff's witnesses overstated the usage of the land, I need not further consider, because of the difficulties in the way of such a finding on yet another account. Although the trial judge provides some reasons for discounting the evidence of Messrs Jenner and Schmierer as exaggerated, there is no reason given for the similar treatment of Harper's evidence or for failing to give any significance to Senior Constable Herring's evidence. The evidence of Harper (and also of Ryan) was significantly corroborated by that of Messrs Jenner and Schmierer. The trial judge has provided no reasons for apparently treating all their evidence with scepticism on this point. 124 The situation is only heightened when the evidence of Garven is considered. The appellant claims that the evidence of Garven means that the finding that the plaintiff's witnesses overstated the level of use is insupportable. It is said that Garven's evidence bolsters rather than rebuts the evidence of the plaintiff's witnesses as to the nature and use of the land. I agree. Garven's evidence on this issue verges on being "uncontested testimony" in the Fox v Percy sense: Fox v Percy (2003) 214 CLR 118. The trial judge found her to be a reliable witness and I find her account essentially corroborated the accounts of the plaintiff's witnesses which the trial judge thought were overstated. 125 I consider, with respect, that there is substance in the appellant's complaint as to lack of consistency of the trial judge's treatment of the witnesses in coming to her conclusion that the plaintiff's witnesses overstated the usage of the land. In terms of Garven's evidence, there are these possibilities: (a) the trial judge found her to be unreliable on this point (yet did not say so), in which case her evidence could not be used to discount that of the appellant's witnesses Messrs Jenner and Schmierer; or (b) The trial judge found her to be reliable in which case her evidence supported rather than contradicted the appellant's witnesses, and provides no basis for concluding that those witnesses overstated the usage. (I interpose that even if Garven were only accepted expressly as being reliable on the question of whether the gate was locked, that reliability was based on her regularity of attendance at the time of the accident and ought by parity of reasoning also to extend to supporting the reliability of her recollection as to the regularity and intensity of the use); or (c) The trial judge failed to have regard to her evidence on this point, despite its materiality. Any of these alternatives point to appellable error, whether for failure to give reasons or to have regard to the weight of evidence supporting the position of the appellant as plaintiff. 126 Furthermore, I have difficulty in understanding how it could properly be said that the "plaintiff's witnesses" were overstating the use of the track. The account of Garven was indeed corroborative. Even the account of Mr Macleod is not in truth inconsistent with the nature and intensity of usage attested to by the "plaintiff's witnesses". His attendances at the site were infrequent, of variable duration and conducted at times which did not necessarily coincide with the uses described. Messrs Jenner, Schmierer and Harper were all cross-examined as to the veracity of their accounts of the level of use, but, impression aside, nothing appears from any evidence tendered or sought to be tendered on behalf of the Nominal Defendant to give an evidentiary foundation to that line of cross-examination. It appears that such cross-examination was based on a perceived (or speculated) exaggeration in the witnesses, providing no proper basis for an adverse finding, credit-based or otherwise. 127 However even if I were to accept that the adverse finding (that the level of usage described by the "plaintiff's witnesses" was overstated) was based at least partly on matters within the trial judge's unique advantage in observing the witnesses giving evidence and seeing the evidence unfold in the course of the proceedings, I consider that advantage would not here be "sufficient to explain the trial judge's conclusions": Watt or Thomas v Thomas [1947] AC 484 at 488 cited with approval by McHugh J in Abalos v Australian Postal Commission (1993) 177 CLR 167 at 178. 128 Apart from the errors already discussed, I would also conclude that the trial judge did not adequately disclose her reasoning in reaching that finding given her seemingly inconsistent treatment of what was essentially similar evidence. For the trial judge to discount the plaintiff's witnesses' evidence as unreliable on the issue of usage, while not taking into account relevant corroborative evidence (Ryan and Senior Constable Herring), not providing reasons for discounting other corroborative evidence (Harper), and making unjustified use of the evidence of Garven, was to create a situation where the basis for the finding of fact is not adequately revealed. Considering the cumulative effect of the errors in the trial judge's approach to the evidence, I am of opinion that the finding cannot stand. The trial judge had "too fragile a base" to support it, given the general thrust of the evidence in this case: cf State Rail Authority of NSW v Earthline Constructions Pty Ltd (In liq) (supra) at 607 per Gleeson CJ, Gummow and Hayne JJ. 129 The question then arises at this point as to which approach this Court should make in the light of those errors by the trial judge. Mr Petty SC, submits that these errors warrant at the very least a new trial, if it be not the case (as he contends it is) that freed from the errors made by the trial judge the essentially unchallenged evidence fulfilled the statutory test, properly applied. I would be very reluctant to remit this matter to the District Court for a new trial. It has been nine years since the accident took place. The effluxion of time can be expected to have had its usual effect on the recollection of the witnesses. Nevertheless, unless this Court is persuaded that it is in as good a position as the trial judge to assess the evidence or that the essentially unchallenged evidence admits of only one reasonable conclusion, there is little alternative to a new trial. 130 However, I consider that this Court is able to reverse the error made by the trial judge in holding that the plaintiff's witnesses overstated the usage of the track. Taking that usage purely as stated, and taking into account that evidence seemingly overlooked by the trial judge, this Court is able as a matter of judgment to determine whether there was indeed "use by the public". 131 To my mind the evidence presented a reasonably unified and coherent picture of the nature and level of the usage of the land at the time when the accident occurred. From the evidence recited above, that picture contained the following features: (a) The track was located on private property on the outskirts of a fairly small township. (b) The owner had tried to prevent access to the land by means of a gate, mounds of dirt and warning signs, but these measures were quite inadequate; by the time of the accident the mounds had been worn down and were not effectively impeding access to the land by pushbikes, trial bikes and four-wheel drive vehicles; (c) In fact, the track was regularly used, at least in the after-school period and on week-ends, by a group of up to a dozen local youths who congregated at the gate to smoke and socialise and to ride their push and trail bikes, being the kind of use to which that place was adapted, so that there were invariably bicycles and motorbikes present; and (d) Apart from the use by the youths, a few local residents would access the track for walking, with some persons dumping rubbish on the land albeit with a lesser frequency than before the gate and mounds were installed. 132 This picture was indeed developed by the trial judge, but then distorted by an erroneous conception of the plaintiff's witnesses overstating the usage of the track, and (as I shall come to below) an overemphasis on the illegality of use.

Ground 2 - Was the track "used by the public" 133 Having thus concluded, it remains to be considered whether the level of usage described by all the witnesses ought to found a conclusion that the land was used by the public in the relevant sense described above. 134 Although the circumstances of this case are not so clear-cut as to make the answer self-evident, I consider that an appellate court may properly, and should, draw the inference on the evidence that the track was "used by the public" for the purpose of the relevant legislation, so satisfying that factual condition. The uses that were made were too frequent to be characterised as merely "casual or occasional uses" and too substantial to be labelled as not "real". Though close to the line, I would conclude that the level of use described by the witnesses rendered the track a place "used by the public" for the purposes of the MA Act and MAC Act. Unlike the trial judge, who was fortified in her conclusion by the view that the plaintiff's witnesses overstated the usage of the land, I am satisfied by the conjunction of the nature and intensity of the use with its particular frequency in this case that the land was "used by the public". I do so taking into account the following matters: (a) the track was used by various different people for various different purposes, in circumstances of quite ineffective prohibition by the owner, who were engaged in a range of activities, principally trail-bike riding and walking, to which the track was adapted. (b) the track was used relatively frequently and regularly by those people for those purposes, (c) amongst these were local youths who congregated there on most school afternoons and on weekends for periods of a few hours or more, walkers were to be found with similar frequency and locals dumping rubbish did so often enough for piles of rubbish to build up. (d) these groups of individuals may properly be considered to constitute "the public" being relevantly those taking advantage of the place for the purposes to which it was adapted, and (e) the variety and frequency of that usage, and the ineffectiveness of measures to prevent it, were sufficient to countervail the trespassory nature of the uses as would otherwise tell against a "use by the public". 135 Such a favourable conclusion, though sufficiently supported by those factors, also comports with the beneficial purposes of this mandatory third party legislative insurance scheme. This is in providing legislative assurance to users of the track at risk of injury at the hands of uninsured vehicles, when that usage is at the level here identified so that users might reasonably expect any vehicle encountered to be covered under the statutory insurance scheme.

CONCLUSION 136 I find that the track was "used by the public" so as to constitute a "road" within the MA and MAC Acts, thus satisfying the respective legislative requirements in that regard. It follows that there should be a verdict for the appellant in the agreed sum. I would so order. 137 Since dictating the above I have had the advantage of reading the judgment in draft of Giles JA. It may be helpful if I identified what I believe to be the point of difference between us. While both of us concur that it is not irrelevant that use may be technically a trespass, I would in the circumstances of this case not be deterred from the conclusion that the track was "used by the public" by its trespassory character. The weight of that factor is greatly diminished by what I refer to as "the variety and frequency of that usage, and the ineffectiveness of the measures to prevent it". That ineffectiveness amounts to something close to tolerance, though it is true that Coal & Allied had taken the steps referred to in [17] of Giles JA's judgment. In short, any assertion of exclusion was totally ineffectual and should be given little weight in the circumstances that here obtained, as I see the matter.

Ancillary matters 138 There has been no cross-appeal filed challenging the findings of the trial judge on contributory negligence. Consequently there is no cause for considering that part of the judgment.

ORDERS 139 I would propose the following orders: (1) Leave is granted to the appellant to amend Ground 2 of the Notice of Appeal, and file within 14 days an Amended Notice of Appeal, amended in the manner identified in the judgment. (2) The appeal is allowed; (3) The judgment and orders of English DCJ, made on 2 October 2003, are set aside; (4) In lieu thereof, order that judgment be entered for the appellant in the sum of $1,900,000, such judgment to take effect as from 3 October 2003 and to bear interest at the statutory rates from that date. (5) The respondent is to pay the costs of the appellant on appeal and in the proceedings below. 140 McCOLL JA: I agree with Santow JA.

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