23 When one looks at Ex. C7, it can be seen that immediately south of that little shrub shown in the picture, which I am satisfied is where the plaintiff, her father and sister came across the nature strip, although there was some obstruction from the foliage, there was also some view of pedestrians on the nature strip and the first defendant should have seen the plaintiff. Exhibit C2 shows a policeman standing at the position of the left hand arrow which corresponds to the "well trodden track", see also Exs. C8 and C9 and the police in Ex. C11 are at the extremity of the "well trodden track".
24 I am satisfied that the first defendant was travelling close to 60 kph as he came along the service road which was excessive in the circumstances, having regard to the narrowness of the road and the limited vision on account of the trees and shrubs on the nature strip which was liable to obscure the presence of persons there who might be heading in the direction of the hardware store. When he became concerned about traffic in the area of the parking bay he took his foot off the accelerator, although I am not satisfied his speed was reduced significantly, and he directed his attention in that direction instead of keeping a proper look-out in front of him on both sides.
25 He also moved close to the left of the carriageway, thereby reducing his visibility of persons who might be on the nature strip. Then when he perceived the danger from the parking bay to have passed he started to again apply the accelerator, but without first checking to the left in front of him. I am satisfied that if he had been keeping a proper lookout on both sides he would, notwithstanding the foliage, have been able to see the plaintiff in sufficient time to stop or swerve to avoid her, at least if he had been travelling at a more appropriate speed in the light of the road conditions to which I have referred. In these respects the first defendant was negligent and his negligence was a cause of the plaintiff's injuries.
26 I turn now to the plaintiff's case against the second and third defendants. 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 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.
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 Baywater 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.
48 The plaintiff was 9½ years old at the time of the accident and should have been aware of the need to be careful when, and to look both ways before, crossing a road, and indeed she had been taught to do so. A child is guilty of contributory negligence if she fails to take such reasonable care for her own safety as is appropriate for an ordinary child of that age and understanding: McHale v Watson (1964) 111 CLR 384, affirmed 115 CLR 199, Figueroa v NSW Insurance Ministerial Corporation (unreported - Simpson J - 18 March 1998).
49 The plaintiff did not give evidence, but on the whole of the evidence I am satisfied she left the grip of her father's hand when he released the pressure and stepped out onto the service road (I am not satisfied she was running) 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%.
50 As between the defendants I consider that the first defendant as the driver of a motor vehicle who failed to keep a proper look-out when he should have averted to the possibility of a pedestrian emerging from the shrubs on the nature strip and who was travelling at a speed which was excessive in all the circumstances must bear the largest share of responsibility for the accident, but both the second and third defendants must bear some share of the blame.
51 The provision of the service road and nature strip was part of the widening and upgrading of the Great Western Highway and the design of the service road and the nature strip, including the tree planting plan, was the work of the third defendant or its predecessor, the Department of Main Roads. On the other hand, the design of the parking bay which contributed to the problem was the work of the second defendant.
52 In addition, by agreement between the second and third defendants the responsibility for maintaining the nature strip designed and planted by the third defendant as part of the widening and reconstruction of the highway was after a six month period entrusted to the second defendant which carried out some maintenance and pruning (Ex. M) but failed to do it properly or adequately. On the other hand, having created the danger against which the nature strip was directed (headlight glare) the third defendant was not able to avoid liability therefor by delegating its responsibility for the maintenance of the nature strip: Roads and Traffic Authority v Scroop (1998) 28 MVR 233.
53 In these circumstances I consider that 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.
54 Subject to the plaintiff recovering a judgment and my approval, the parties have agreed on the assessment of damages namely $3,250,000 for damages under the MA Act and $4,125,000 for damages at common law. I have read the material relating to the plaintiff's injuries and disabilities (Ex. X) and am satisfied that such amounts are reasonable.
55 On behalf of the second and third defendants it has been submitted that damages against them should be assessed in accordance with the MA Act and not as at common law, and they rely on s 69(1) which is as follows:
"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."