SKULANDER v WILLOUGHBY CITY COUNCIL

Federal Court of Australia Act 1976 (Cth) LEGISLATION CITED: Judiciary Act 1903 (Cth) Supreme Court Act 1970 Supreme Court Act 1981 (UK)

Arbest Pty Ltd v State Bank of New South Wales Ltd [1996] ATPR 41,963 British Fame (Owners) v Macgregor (Owners) [1943] AC 197 Brodie v Singleton Shire Council (2001) 206 CLR 512 CES v Super Clinics (Australia) Pty Ltd (1995) 38 NSWLR 47 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 Evans v Minister for Immigration (2003) 135 FCR 306 Farley v Skinner (No 2) [2000] PNLR 441 Gosford City Council v Needs [2003] NSWCA 144 Government Insurance Office of New South Wales v Rozniak (1992) 27 NSWLR 665 Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 Hill v Chiaverini [2004] NSWCA 265 John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 Jones v Bartlett (2000) 205 CLR 166 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Leichhardt Municipal Council v Montgomery [2007] HCA 6 Mabo v Queensland (No 2) (1992) 175 CLR 1 McPherson's Ltd v Eaton (2005) 65 NSWLR 187 Metropolitan Water Sewerage & Drainage Board v Histon [1982] 2 NSWLR 720 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 CASES CITED: O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 60 Pateman v Higgin (1957) 97 CLR 521 Perpetual Trustee Co Ltd v Tindal (1940) 63 CLR 232 Phillis v Daly (1988) 15 NSWLR 65 Pippos v Craig [1993] 1 VR 603 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 R v Ashwell (1885) 16 QBD 190 R v Lubke (1988) 15 NSWLR 318 R v Wilson (2005) 153 A Crim R 257 Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327 Swain v Waverley Municipal Council (2005) 220 CLR 517 Tasmania v Victoria (1935) 52 CLR 157 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 Todorovic v Waller (1981) 150 CLR 402 Tsivinsky v Tsivinsky Court of Appeal, unreported, 5 December 1991 Vairy v Wyong Shire Council (2005) 223 CLR 422 Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 Woolworths Ltd v Kelly (1991) 22 NSWLR 189

PARTIES: Marie SKULANDER WILLOUGHBY CITY COUNCIL

COUNSEL: Appellant: P Menzies QC/ J Stewart Respondent: C E Adamson SC/ R G Gambi

SOLICITORS: Appellant: A R Conolly & Co Respondent: Phillips Fox

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40120 of 2006 DC 6400 of 2001

MASON P BEAZLEY JA BASTEN JA

Marie SKULANDER v WILLOUGHBY CITY COUNCIL JUDGMENT 1 MASON P: On 2 May 2000 in the early evening the appellant caught a train to Chatswood where she planned to be met by her husband who was to pick her up by car at the Chatswood Bus Interchange. Portion of the Interchange is a section of footpath of variable width running from south to north, with a wall in the middle and benches along the east side of the wall, protruding like a long tongue between two sections of roadway used mainly by buses. 2 The appellant walked northwards along the footpath (with the benches and the wall to her left) towards a section where there was a break in the wall. There was a zebra-crossing over the two sections of roadway that intersected the footpath approximately at right angles at this point. The appellant was expecting her husband to be on the western roadway behind the wall, waiting for her or cruising around. 3 There does not appear to have been any crush of people, but the appellant took a path that involved her walking just to the east of the benches and, after she passed the northernmost bench, bearing across to the left before she was to take a sharp left hand turn from the footpath onto the zebra-crossing. For reasons explained below, it is not known whether she would have collided had she taken the shortest direct route. 4 At the corner of the wall there was a column. Mounted on its eastern face at the appellant's head height was an iron cage containing a gas-sensing device. As the appellant walked she was looking downwards and punching the number pad of her mobile phone attempting to ring her husband. She was holding the phone in her left hand with her left elbow at about right angles. She struck the vertex or top of her scalp slightly to the right hand side while her neck was flexed, tilted to the left with her head facing down. This caused her to suffer a hyperflexion injury that has had significant and lasting adverse consequences. 5 In the District Court, Judge Hughes entered a verdict for the defendant and did not proceed to assess damages. His Honour found that no duty of care was owed by the respondent to the appellant. 6 The respondent Council was the occupier of the Interchange. It had not installed the monitoring devices, but it was responsible for maintaining them and the cages subsequently erected around them to prevent vandalism. 7 Trial counsel informed the judge that duty of care was not in dispute. The judge's finding to the contrary as to duty was inexplicable and clearly wrong. This was not a case involving a highway. The respondent was the occupier of an area to which members of the public had frequent access. Its duty of reasonable care was not negated by pointing to the carelessness of a particular plaintiff, yet this seems to have been the basis of his Honour's thinking. Indeed, the exercise of reasonable care by the Council required it to have regard to the possibility that some entrants may be careless of their own safety (see generally Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at 246-247; Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [25]-[27]). 8 The real issue is whether negligence was proved. Regrettably there are virtually no relevant findings as to breach and no assessment as to the level of contributory negligence. Nor did the judge follow the correct practice of assessing damages against the contingency that his decision might be reversed in the appeal that he obviously foresaw as a distinct possibility. 9 The issue for this Court is whether it is feasible or just for it to determine breach and, if that is found in the appellant's favour, the level of (conceded) contributory negligence; or whether the Court should order a new trial on all issues. 10 The appellant gave the following evidence in chief as to the accident (Black 12S): Q. … You were walking along? A. I was walking along.

Q. What were you doing? A. I was dialling my phone. I had good vision, I thought I was safe…. I pressed the call button just as I hit the cage.

Q. What happened to you when you hit the cage? A. My head was thrown back by I think the impact of the hit …. 11 The cage that the appellant struck is cube-shaped with sides of approximately 250mm (10 inches). It was mounted on the eastern side of the square-shaped column whose northern face formed the southern edge of the zebra-crossing pathway. The underside of the cage was approximately 1.45m above the pavement. The eastern side of that column was some distance to the east of the generally north-south line of the wall that prevented pedestrians from passing freely from the footpath to the roadway on the west. The east side of the column was, however, west of the line formed by the row of benches placed against the wall that any pedestrian would have to skirt if walking along the footpath. The cage protruded about 250mm (10 inches) out from the eastern wall of the column but it was located an unidentified distance back from the northeastern corner of the wall. 12 A cage identified as similar in shape to the one in question was tendered. Its grills are dirty yellow in colour. 13 The appellant described the cage she struck as very dark yellow (Black 51C, K) or khaki brown (Black 87). Presumably this was based on an observation after she was struck. The colour description was challenged in cross-examination. No finding was made on this topic. 14 The appellant did not see the cage before she walked into it. There was no one in front of her or beside her as she walked along. The following evidence was given in cross-examination (Black 52P-53B). Q. You weren't in a hurry to see where your husband was in case you'd gone to the wrong place to meet him or anything like that? A. No. Q. Walking normally along? A. Yes. Q. Not in a hurry? A. No. Q. Not being pursued by anybody? A. No. Q. You weren't being channelled into this particular area? A. No. Q. The footpath was pretty wide, there was nothing to prevent you from walking around the column well past the case, was there? A. No. 15 During cross examination the appellant also said (Black 51K): It was very dark, the cage was very dark and it was not obvious. Had I been - I was looking up my vision was such that I could see where I was going. I wasn't anticipating something being up above my head.

16 The appellant's suggestion that she was looking ahead of her while she was dialling the phone was contrary to histories she had given various doctors, it was challenged in cross-examination and it was not accepted by the trial judge. No error has been demonstrated in this conclusion. The appellant was not looking where she was going. 17 Beyond this, the judgment is quite unhelpful in determining the now critical issue of breach. There is a statement that the plaintiff "was so careless and took no reasonable care for her own safety that she was the author of her own misfortune". But this is opaque, conclusory and unhelpful. 18 What was unproven in this case was whether a person of the appellant's height who was looking ahead would have been likely to walk into the cage if taking the shortest route to go around the corner to the left. By shortest route I mean a path along the line from the north-eastern corner of the last bench to the north-eastern corner of the column. It is therefore possible that the accident occurred because the appellant deviated to the west of that imaginary line and then walked close and parallel to the line formed by the eastern wall of the column holding the cage. This, of course, is not fatal to her case. But it would mean that the respondent's negligence is to be judged among other things by considering the likelihood of people taking the jagged path that the appellant may possibly have taken. 19 The appellant marked on a plan the approximate route she took as she walked north along the footpath (Blue 1). It is difficult to know how carefully she was intending to depict her exact route, especially in its final stages when (as we know) she was not looking where she was going. The line drawn shows her passing close to the row of benches, continuing after the last seat in a line parallel to the wall, deviating slightly towards the wall and then walking parallel to it and into the cage. The appellant said she walked a straight line (Black 50). 20 Senior counsel for the appellant submitted that the cage probably became a hazard to the appellant because she walked very close to the wall and perhaps even veered into it having regard to the portion of her head that was struck (CA Tr p3). But this, he submitted, was the type of inadvertence against which a reasonable occupier would have taken better precautions. 21 Senior counsel asked the Court to infer that a collision would have been inevitable had a person taken what I have described as the shortest route from the bench to the corner. In my view, it would substitute speculation for inference to conclude that this was the route taken. This critical matter could have and should have been proven in the plaintiff's case. The usual inference about the available but absent evidence not supporting the case of the party bearing the onus of proof should therefore be drawn on that matter. 22 The detail plan prepared by land surveying consultants retained by the appellant (Blue 1) may appear to favour her on this point in the sense that a notional line drawn from the corner of the seat to the corner of the column seems to intersect the cage. The plan also indicates that the wall curves slightly to the east as one moves northwards towards the column bearing the offending cage. But neither matter was adverted to at trial, there are no precise measurements and I have no confidence that this part of the plan was drawn to scale. I observe that the south side of the column (as drawn) is not perpendicular to the back wall whereas the photographs do not suggest that this was the case. 23 There were no reported accidents involving the cage which was installed over ten years before the appellant's accident. 24 No evidence was led by the appellant as to non-compliance with official or industry standards as regards the location of the offending object. The appellant tendered an expert report to which objections were taken. The tender was withdrawn. 25 The respondent tendered and had admitted an expert report of Robert Fogg, a consultant engineer and expert in occupational health and safety. It was not challenged in cross-examination. The Fogg report states that the installation did not offend the relevant Australian Standard applicable at the time the Interchange was constructed (Blue 86, 89). The report and/or unchallenged evidence also established that:

(a) the Interchange is serviced by a significant number of combustion powered buses;

(b) when the Interchange was built in 1988 fourteen gas sensors were installed to operate a forced mechanical ventilation system which automatically activated when carbon monoxide vehicle exhaust emissions reach a pre-determined level;

(c) the 1991 version of the applicable Australian Standard (which was not binding upon the Council having regard to the year in which the Interchange was built) required "sampling points" (ie sensors) to be located between 900mm and 1800mm above the floor surface in positions which allow samples to be fully representative of the local atmosphere; at least 100mm clear of walls, columns or other vertical surfaces; and not in positions significantly influenced by either make-up air or motor-vehicle exhaust emissions;

(d) the sensors at the Interchange comply with these 1991 standards as to type and location. 26 This evidence demonstrates the utility of installing sensors at the Interchange. A photo in evidence shows the sensor to be a smallish device that would have been too close to the wall to have caused the appellant any injury. Her injury was occasioned by hitting the solid steel cage around the sensor that protruded 250mm out from the wall (in contrast to the 100mm clearance called for in the Standard). 27 The unchallenged evidence was that steel cages were installed to prevent vandalism. The reasonableness of such protection was not in dispute. What was, however, challenged was the appropriateness of locating the caged device where it was, the steps taken to ensure its visibility and the absence of measures taken to prevent pedestrians walking into it. 28 The particulars of negligence complained about the location of the cage, the absence of warning in respect of an unusual danger and the respondent's failure to ensure that the cage was sufficiently contrasted by colour from its background. There was, however, no expert evidence about the lighting or colouring. The appellant's evidence on these topics was necessarily impressionistic and somewhat conclusory given that she did not see the cage before she struck it and that she was hurt and distracted afterwards. 29 The thrust of the appellant's claim was that it should be concluded as a matter of common sense that the Council should have either located the caged device elsewhere or placed a bollard or bin adjacent to the column and underneath the cage to force pedestrians to give it a sufficiently wide berth. (A bin was put there after the accident.) The trial judge held that: It was suggested as one of the remedies that may be applied to forestall a person who had their head down and was talking on the phone, would be to have a railing about the pole to which the device was attached. It would seem to me that any person walking along with their head down, dialling or talking on a mobile phone, would simply trip over the railing and may or may not suffer damage of the kind suffered by a person being struck on the head with the cage. 30 By contrast, I would infer that the risk of careless pedestrians tripping over a bollard or bin would have been less in its consequences than the risk of head and neck injury that could befall people whose head struck the cage. This, however, is not conclusive on the negligence issue. 31 The 900mm to 1800mm height range stipulated in the 1991 Standard (assuming its applicability) meant that an inappropriately located device that had a surrounding cage would present as a foreseeable hazard to a range of pedestrians. Many people would have head heights across this range. The sampling points were required to be located within this range of heights for that very reason. Nevertheless, the Standard left a lot of leeway as to the location point of an individual sensor and it did not require the caging of sensors. 32 The respondent did not suggest that it was required by law or practical necessity to locate a caged sensor on the eastern wall of the particular column. I infer that the cage could, for example, have been put at head height but on the southern wall of the column in question.

33 The issue of breach is to be determined according to community standards of reasonable behaviour. The enquiry is prospective, not retrospective. It is not enough for the appellant to show that additional measures could have avoided the accident. As indicated, it was not established that the respondent breached any Australian Standard or recognised building practice. 34 The world is full of risky situations and sometimes risks come home with most unfortunate consequences. The respondent was entitled to factor into its decision-making that pedestrians are capable of exercising responsibility for their own safety, but a duty of reasonable care remained. 35 In Jones v Bartlett (2000) 205 CLR 166, Gleeson CJ said (at 177[23]): There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense. In Phillis v Daly [(1988) 15 NSWLR 65 at 74] , Mahoney JA said: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."

36 In Hill v Chiaverini [2004] NSWCA 265 at [29]-[31] I said (with the concurrence of McColl JA and Hislop J):

The plaintiff was a lawful entrant to commercial premises owned and occupied by the defendants. There was an undoubted duty to take reasonable care, bearing in mind that what is reasonable "will vary with the circumstances of the plaintiff's entry upon the premises" ( Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-8). A finding of breach requires a conclusion that the occupier has acted unreasonably in responding to the foreseeable risk of injury, having regard to the well-known considerations referred to in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8.

In determining what the defendants were required to do, acting reasonably, the occupiers could take into consideration what Mahoney JA described in Phillis v Daly (1988) 15 NSWLR 65 at 74 as "the law's expectation that the plaintiff would take reasonable care for [her] own safety" (see also Francis v Lewis [2003] NSWCA 152).

This is not to assert that occupiers may ignore the fact that accidents occur due to entrants' inadvertence. Some criticism was directed at the trial judge's statement that "much emphasis has been placed in recent authorities on the requirement that plaintiffs act reasonably" . In my view, this was a fair observation based upon recent appellate jurisprudence as to the content of the duty of care and issues of breach in various circumstances (cf Liftronic Pty Ltd v Unver (2001) 179 ALR 321 at 333[60], Brodie v Singleton Shire Council , Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at 580[160], Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 474[44]-[45], University of Wollongong v Mitchell [2003] NSWCA 94 at [33], Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74], Richmond Valley Council v Standing [2002] Aust Torts Reports ¶81-679 at [29], Francis at [40], Waverley Municipal Council v Swain [2003] NSWCA 61 at [114], Temora Shire Council v Stein [2004] NSWCA 236). 37 A busy place like a bus station will attract people who are distracted and at times inadvertent. Reasonable care for their welfare needs to be taken. But this could not amount to removing every conceivable obstacle capable of causing injury if a careless pedestrian collided with it. 38 Benches, bins and bollards could cause significant injury to the unwary pedestrian who tripped over them. The appellant counters with the argument that there is a difference between tripping over something and striking one's head on it. True, but it is very much a matter of degree. The dangers and obviousness of the hazard need to be considered on their particular facts. 39 I am unpersuaded that negligence has been proved. This conclusion takes account of the relatively small protrusion of the cage and the fact it was painted "yellow". There is no clear evidence as to how far the cage is located back from the northeastern corner of the pillar. If it had been placed at the edge, where it would have been a hazard to anyone turning left in a normal manner, then I would have thought it an unsuitable site for locating a head-high monitoring device. The appellant's evidence does not, however, provide sufficient basis for any such finding and the photographs are equivocal. The absence of earlier reported accidents does not assist the appellant. 40 I do not think that the exercise of reasonable care on the part of the respondent required it to remove the cage in question simply because of the risk that a person not looking where he or she was walking might walk into it. The cage was painted in a distinctive colour and the appellant would not have struck it had it not been for the combination of her being very close to the wall, looking downwards and still walking (possibly in an unusual line close to and parallel with the wall of the column). As indicated, the appellant has not established that she would have struck the cage had she taken a "normal" route of following the imaginary line between the last of the benches and the northeastern corner of the column that she intended to pass around to the left. 41 My preferred order is that the appeal should be dismissed with costs. This, however, creates a difficulty as regards obtaining an order of the Court.

The order of the Court 42 The judgments circulated in draft reveal a majority of the Court (Beazley JA and Basten JA) finding negligence proved, with firm disagreement between their Honours as to the discount for contributory negligence. The majority agree that there needs to be a new trial to assess damages. My minority opinion would not displace the verdict for the defendant, but for reasons other than as stated in the District Court. 43 I have been and remain vexed as to the disposition of the appeal in these circumstances. On what principled basis does the Court dispose of the appeal? Do I have a particular role because I am the presiding judge? Or because I am the dissentient as to the logically anterior issue of liability? Some may view this anxiety as much ado about nothing. I can only say that I have found the matter to be troubling, especially in an appeal of such a routine nature. 44 What follows has the concurrence of the whole Court. 45 Several options may be available, theoretically speaking. Each has difficulties arising from a tension between the majoritarian principle reflected in s45(1) of the Supreme Court Act 1970 which states that the decision of the Court shall be in accordance with the opinion of the majority of the Judges of Appeal present; and the finality principle reflected in s63 of that Act which states a duty to ensure that, as far as possible, all matters in controversy between the parties are completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided. 46 The first option would be to recognise the Court as equally divided in its opinion, either on the basis of a three-way disagreement as to orders or a two-way division (between Beazley JA and Basten JA) as to contributory negligence. 47 In Evans v Minister for Immigration (2003) 135 FCR 306, [2003] FCAFC 276 a Full Court of the Federal Court of Australia was constituted by Gray, Kenny and Downes JJ. Two questions had been ordered to be determined separately at first instance. There was an appeal from the answer to the second and cross-appeal from the answer to the first. In the Full Court the two senior judges agreed that the answer given by the primary judge on the first question was correct and that the cross-appeal should therefore be dismissed. Downes J found it unnecessary to deal with the second question, and therefore with the appeal. His Honour did not wish to express a view on the second question, being of opinion that it was not appropriate for him to take the reasons of the other members of the Court, particularly where their conclusions were not the same, as the basis for determining the second question, and the appeal. The two remaining judges were divided as to what should be the answer to the second question (see at [32], [112]). 48 In Evans the Court agreed that it was equally divided in opinion and that the proper order on the appeal relating to the second question was to dismiss the appeal and affirm the primary judge's answer to that question (see at [33], [70], [112]). Under s16(a) of the Federal Court of Australia Act 1976 (Cth), when judges constituting a Full Court are equally divided in opinion, the judgment below is to be affirmed in the case of an appeal from a judgment of the Court constituted by a single judge. 49 If this reasoning is correct and applicable in the present case, the rule determining how the matter is resolved in the Court of Appeal is different and the consequences are startling. 50 Section 45(2) of the Supreme Court Act 1970 states: If the Judges of Appeal present are equally divided in opinion the decision of the Court of Appeal shall be in accordance with the opinion of the Chief Justice or other the Judge of Appeal presiding. 51 If at the end of the day this provision is applicable it would lead to the exquisite but troubling outcome that my dissenting opinion revives and swells into the judgment of the Court. In support of this, nothing in the language of s45(2) indicates that the provision only applies if the "Chief Justice or other the Judge of Appeal presiding" is one of the Judges whose opinions divide the Court. On the reasoning of Evans my opinion could be so described, in any event. This said, Evans involved a provision in a Court where the trial judge whose opinion was to be affirmed was a member of the Federal Court and where the presiding judge in the appeal (Gray J) happened to be one of the two judges whose opinions on the separate question divided the Court. 52 Section 23(2) of the Judiciary Act 1903 (Cth) provides for cases of equal division of opinion in appeals to the High Court from the Supreme Court of a State, by stipulating that the opinion of the Chief Justice, or if he or she was absent the opinion of the Senior Justice present, should prevail. In Perpetual Trustee Co Ltd v Tindal (1940) 63 CLR 232, five out of six justices of the High Court were of opinion that the judgment of the Supreme Court with respect to one matter ("the second policy") was wrong. But no majority was in favour of all the terms of any particular order to be substituted for that of the Supreme Court. Latham CJ said (at 250) that it was "at least a matter of doubt whether in such a case sec.23(2) requires that the decision of the Supreme Court should be affirmed". The difficulty was resolved in the case by Starke J withdrawing his judgment, thus leaving a majority of the Court in agreement with the order which the Chief Justice proposed. 53 Further doubts as to whether a court whose members each propose discrepant orders is necessarily "equally divided" were expressed during argument on an application for special leave to appeal to the High Court in Arbest Pty Ltd v State Bank of New South Wales Ltd, 14 February 1997. That involved a decision of this Court constituted by Kirby P, Priestley JA and Powell JA (Arbest Pty Ltd v State Bank of New South Wales Ltd [1996] ATPR 41,963) in which the two senior judges (Kirby P and Priestley JA) agreed to resolve their differences as to the basis on which an inquiry as to damages by a Master would take place. In the upshot, Kirby P did not press his preferred orders. 54 Of course, judicial remarks made arguendo in a special leave hearing in the High Court are not binding. Nor are the reasons for refusing special leave. Nevertheless, the High Court's statement in its reasons for decision that it was not persuaded that Arbest was a case in which there was an equal division of opinion in the Court of Appeal, thereby triggering the application of s45(2) of the Supreme Court Act, tended to endorse the process whereby this Court had proceeded to dispose of the appeal in Arbest. That process accords with the sixth approach discussed below, with one variant which I later explain. 55 The second option theoretically open to this Court might be to order a new trial on the unresolved contributory negligence matter. This has much going for it in a case, such as the present, where the majority view is that there has to be a new trial on damages in any event. A new trial would be ordered where, for example, the appellate court cannot resolve a necessary but unaddressed credibility issue. Arguably, the present difficulty is similar in effect. But this option has its own drawbacks in the present context. I leave aside the theoretical possibility that such a new trial might be followed by an appeal to this Court heard by three judges who like the famous Irish jury referred to (I think) in Maurice Healy, The Old Munster Circuit, were unanimous that they could not agree on a verdict. Rather, the difficulty lies in the fact that ordering a re-trial limited to contributory negligence (and damages) may contravene the finality principles stated in s63 and also the principle of restraint as to ordering a new trial. In the present case, a new trial as to contributory negligence that treats liability as a given may also run foul of the principle stated by Kitto J in Pateman v Higgin (1957) 97 CLR 521 at 527 whereby the new trial ought to be of the case as a whole unless the Court thinks that "they shall do more injustice by setting the matter at large again". It does strike me as unlikely that the level of the plaintiff's contributory negligence could be explored afresh without the need to clarify what really happened and where the defendant's negligence really lay. But perhaps that hearkens back to my minority view as to liability. 56 A third option might involve adding two additional judges to the panel in the hope that a clear majority for some outcome would emerge, perhaps after further consideration on the papers. The parties may well be happy with incurring the limited added costs, although the ultimate loser could feel hard done by if the correct approach is for the Court as presently constituted to arrive at a resolution of the appeal in that party's favour. 57 In the United Kingdom, s54(5) of the Supreme Court Act 1981 (UK) contemplates an appeal being reargued before an uneven number of judges if an appeal has been heard by a court consisting of an even number of judges and the members of the court are evenly divided. The practice in that country is for the evenly divided court to indicate its lack of agreement without publishing reasons so that application to enlarge the panel can be made (see Farley v Skinner (No 2) [2000] PNLR 441). The framers of the legislation obviously did not contemplate that a Court of three judges could be "evenly divided". 58 A fourth option might be to let the judgment below stand because there is no majority decision as to what should be done about it. In R v Ashwell (1885) 16 QBD 190, fourteen judges sitting in the Court for Crown Cases Reserved were evenly divided on a point of law of extreme difficulty. The prisoner's conviction was affirmed through the application of what Lord Coleridge CJ described (at 226) as "the well-known rule of this Court, praesumitur pro negante …". (Cf R v Lubke (1988) 15 NSWLR 318 where the presumption in favour of liberty appears to have tipped the balance with a sharply divided Court of Criminal Appeal. See also R v Wilson (2005) 153 A Crim R 257 at 273.) If the "rule" stated in Ashwell extends to the present three-way split as to preferred orders it would have the effect of resolving the appeal by the orders I favour. This outcome would affirm a judgment in the court below that rests upon reasoning disfavoured by each member of this Court. 59 A fifth option would be for the Court, Basten JA in particular, to apply the convention referred to by McHugh JA in O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 60 at 641 whereby the junior judge withdraws the orders which he or she proposes and agrees with those of the senior judge. See also Tasmania v Victoria (1935) 52 CLR 157 at 183, Metropolitan Water Sewerage & Drainage Board v Histon [1982] 2 NSWLR 720 at 730, John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 at 303-4, Government Insurance Office of New South Wales v Rozniak (1992) 27 NSWLR 665 at 700. Basten JA has not indicated his willingness to withdraw his proposed orders. Were he to do so, this would also result in a verdict for the defendant in the teeth of the majority in this Court holding the view that negligence is established with a reduction for contributory negligence that does not exceed 50%. 60 A sixth approach was developed by Kirby P in a number of cases commencing with Woolworths Ltd v Kelly (1991) 22 NSWLR 189. In Woolworths, Kirby P said (at 200):

It is my view, as expressed in other cases, that the traditional approach for the resolution of difficulties of this kind owes more to history than to logic. Unless it is necessary it offends a sense of justice that a decision should be determined by the accidents of judicial seniority rather than by an attempt to find, within the reasons and orders proposed by the judges, the highest common denominator of rational agreement. 61 Professor Luntz, Assessment of Damages for Personal Injury and Death. 4th ed, suggests (at [12.3.13]) that "presumably [Kirby P] meant the 'highest common factor'. In mathematics one is usually concerned to find the lowest common denominator or highest common factor". 62 Kirby P wrote in CES v Super Clinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at 79:

In earlier times, differences of this kind were resolved by the principle of seniority of judicial appointment. In these more enlightened times, a more rational principle has been adopted by this Court. It seeks to express (and in its order to reflect) the majority consensus of reasoning. 63 These principles were applied by the President in CES (at 78-9) and in later cases in which he sat as the senior member of this Court (see Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 at 214 and Tsivinsky v Tsivinsky Court of Appeal, unreported, 5 December 1991. See also R v Wilson (2005) 153 A Crim R 257 at 273 and Luntz, op cit, p666.) 64 Examples of a "dissenting" judge taking the initiative unilaterally in order to procure an outcome for an appeal may be found in the cases already mentioned that involved what I have called the fifth option. 65 Another such instance is Perpetual Trustee Co Ltd v Tindal, discussed above, where Starke J (at 258-8) recognised that his was a minority opinion on what appears to have been the main issue. On that basis he was prepared to withdraw his opinion to the contrary. But, unlike the approach more recently adopted by Kirby P, he did not proceed to express an opinion or cast a vote on the subsidiary issue. By withdrawing his opinion and giving no judgment with respect to a particular insurance policy issued by the MLC he brought about the situation that a majority was thus obtained for the view of and orders proposed by the Chief Justice (see also 63 CLR at 250 per Latham CJ). For one member of this Court to do this in the present case would still not produce a majority decision. 66 Reverting to Kirby P's exposition of what I have termed the sixth approach, it would appear that in the cases cited above it was always Kirby P who mediated the issue, deciding what was the highest common factor and withdrawing his proposed orders in favour of the orders proposed by the judge whom he detected to be in that position. Except for the Arbest decision, nothing on the face of his reasons shows that he consulted with his colleagues on this critical matter, although it is quite possible that he did. The basis for him taking the initiative is unexpounded. 67 In Woolworths, Kirby P withdrew his orders and joined with the orders proposed by the second judge (Samuels JA) on the basis that the "highest common denominator" was found in the latter's reasons. That case was one in which Kirby P was in substantial agreement with Samuels JA (see at 200E). In CES, Westpac and Tsivinsky Kirby P appears to have been in a similar position. The present case is different, although the difference may be immaterial. In every situation, the "withdrawing" judge is ultimately supporting orders that do not give effect to his or her primary views. Deane J would appear to have proceeded, independently, in a similar manner in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 187-8. 68 As indicated, Arbest appears to be a partial exception to this pattern, in that Kirby P was joined by Priestley JA in agreeing as to orders that disposed of the appeal. The exception is only partial, because Powell JA did not join the majority in agreeing on the ultimate orders. His Honour chose not to offer any views on the matters debated concerning whether the Court was "equally divided in opinion" and how that matter might best be resolved. 69 Could it be said of this and other similar approaches that the judge who "withdraws" his or her proposed orders on any basis, however logical or rational, is party to breach of s45(1) or (2) and/or party to the making of an order supported by reasons to which he or she gives no assent? This might be so, whether or not the judge casts a positive vote for some outcome that he or she does not primarily support. Is it any different to tossing a coin? Does it deprive the litigant who won at first instance of the legally-merited fruits of victory stemming from the application of one of the alternatives that do not involve a switching vote? 70 I have nevertheless concluded, with hesitation, that the answer to these questions is "No", so long as the Court as a whole can offer a satisfactory reason for not "taking the matter to the wire" and, through the unyielding obduracy of each member, producing no majority consensus as to orders, with whatever consequences ensue therefrom. 71 I do not claim to have exhausted every possibility. But a seventh option, and the one that I (reluctantly) favour, is that (subject to the concurrence of my colleagues) I should address the question of contributory negligence on the assumption that my conclusion as to breach is wrong (as the majority of this Court would hold). My reluctance stems from the fact that I am dealing, not with a discrete issue that on my reasoning I do not have to address (cf Downes J in Evans), nor even a disagreement about the level of contributory negligence in which I have my own discordant view, but because I am asked to assume factual propositions that I positively deny. In Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327 at 363 Dixon J said that "as a rule, it is neither safe nor useful for a mind that denies the correctness of reasoning to proceed to expound its meaning and implications". I hasten to add that I am no Dixon and the matter presently at issue relates to mundane issues of fact and burden of proof. But I remain troubled as to the principled basis upon which I should proceed to an assessment of contributory negligence in a matter in which I would find for the defendant. 72 Litigants, lawyers and judges are used to reasoning that proceeds upon alternative hypotheses. I am ultimately persuaded that it is open for me to do this, consonant with s45(1), having regard to s63 of the Supreme Court Act and the presumably similar principles that have driven divided appellate courts to find a solution by one or other of the options discussed above. I do so because approaching the matter this way is a course upon which the whole Court is in agreement (see also Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 at 450, Todorovic v Waller (1981) 150 CLR 402 at 424, Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15-16, Pippos v Craig [1993] 1 VR 603 at 611). 73 In approaching the dilemma in this manner I have accepted the reasoning of Kirby P supporting the sixth option, but only in part. 74 I remain to be convinced that deference to seniority is a badge of "unenlightened" times or that a rule of last resort whereby the junior judge defers to the senior has necessarily reached its use-by date. I do, however, accept that it is rational and just for a court to strive by its order to express what Kirby P described as "the majority consensus of reasoning" and "the highest common denominator of rational agreement". My point of disagreement with Kirby P lies in the judicial method disclosed on the surface of his Honour's reasoning and applied openly in Arbest. In each of the cases apart from Arbest where Kirby P effectively transferred his vote in favour of the order reflecting the "highest common denominator" it would appear that he alone exercised the choice in the matter. Perhaps he acted with the unstated concurrence of his colleagues or at least a majority of them (as happened openly in Arbest). Perhaps his Honour perceived himself entitled to be the centripetal fulcrum because his views in the particular case happened to fall midway between those of his two colleagues. I am not in this situation in the present case. 75 Factors that embolden me to take the matter beyond my preferred conclusion that the appeal should be dismissed with costs are: my acknowledgment that in this, as in all matters, I may be wrong; my respect for the views of my colleagues; and the fact that it was common ground in the appeal that if negligence was found there would have to be some reduction of damages for contributory negligence. 76 Having therefore reasoned to this point, what order should I favour? In theory, I could propose a third percentage by way of deduction for contributory negligence. But I find myself able to say that, subject to the above, I agree with Basten JA and the orders he proposes. 77 BEAZLEY JA: I have had the benefit of reading in draft the judgments of Mason P and Basten JA. I agree with the reasons of Basten JA save in respect of contributory negligence. 78 An assessment of the extent to which a party is to be held proportionately responsible for an accident is an assessment "… of proportion, of balance and relative emphasis, and of weighing different considerations …": British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. 79 In Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 the High Court pointed out: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."

See also Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [157]. 80 In this case, the appellant was momentarily inadvertent in looking down so as to engage the speed dial function on her phone. The placement of the steel cage in the position and at a height where it was likely to and did cause injury was the principal reason why the appellant suffered her injury. In my opinion, contributory negligence should be assessed at 20 per cent. 81 BASTEN JA: The circumstances of this case, as explained by the President, have a number of curious features. Not least among them is the question how the Appellant managed to collide with the metal cage, so as to hit the right side top of her head. Secondly, there is the question as to why the trial judge found there was no duty of care, in circumstances where the existence of the duty appeared to have been conceded at trial.

Factual circumstances 82 So far as the factual issues were concerned, the metal cage around the monitoring device extended approximately 25cm out from a column into the area where pedestrians might walk. The cage was roughly cubed shaped, with a height of approximately 25cm. The bottom edge of the cage was 1.45 metres above the pavement. 83 The Court was informed at the hearing of the appeal that the Appellant was 1.56 metres tall. Thus, even for a relatively short person, the bottom of the cage was approximately at eye level. 84 Further, with the Appellant walking along the pavement in a northerly direction along a wall which divided two sections of the bus interchange, she should have passed the column with the protruding cage on her left hand side. She explained in her evidence that she was looking down at her mobile phone, which she had in her left hand, and may thus have had her head turned somewhat to the left. It nevertheless remains difficult to understand how the right hand side top of her head struck the cage. As was put to her in cross-examination, if the cage had not been there she must have been about to walk into the column. 85 At the end of the dividing wall, where the column was placed, there was a cross-walk, allowing pedestrians to proceed across the north-south walkways. There was a second monitoring device and cage protruding from the northerly side of the column, but which was slightly higher above the pavement, the underside being 1.68 metres clear. On one view that was a greater risk than the cage with which the Appellant collided. A person walking northward on the west side of the dividing wall could have walked close to the wall because there were no seats along it. Indeed, to veer toward the kerb would bring one against a pedestrian barrier when the end of the wall was reached. For such a pedestrian, turning east around the end of the wall, there would appear to be a more significant risk of colliding with the underside of the cage on the second monitoring device, which would naturally result in a blow to the right side of the head, depending how tall the pedestrian was.

Duty of care 86 The interchange was constructed as a facility available to persons using public transport, whether train or bus or both. There is no doubt that the Appellant was such a person and that, in general terms, the Respondent owed her a duty to take care for her safety, both in the construction and operation of the interchange. 87 The next question is how specifically the content of the duty should be defined. The existence (and content) of the duty is categorised as a question of law, whereas breach is categorised as a question of fact: see, eg, Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 at [56] (Gummow and Hayne JJ). The distinction has less practical importance since the demise of civil jury trials, but remains critical in cases (of which this is not one) in which appeals are limited to questions of law. Even this dichotomy may be expressed too starkly: as explained by Gleeson CJ in Swain v Waverley Municipal Council (2005) 220 CLR 517 at [4], "the alleged duty of care might depend upon contested facts". As Gummow and Hayne JJ point out in Cole, "the articulation of a duty of care at too high a level of abstraction provides an inadequate legal mean against which issues of fact may be determined". See also Leichhardt Municipal Council v Montgomery [2007] HCA 6 at [8] (Gleeson CJ, Crennan J agreeing). 88 On the other hand, there is a concern that too great a degree of specificity in defining the duty may in some way limit the consideration given to questions relevant to breach, including in this case the likelihood of a foreseeable risk materialising, the magnitude of the likely harm, should it materialise, and the expense, difficulty or inconvenience of alleviating the risk, given the need to maintain monitoring devices at appropriate positions in the concourse of the interchange facility: c.f. Vairy v Wyong Shire Council (2005) 223 CLR 422 at [75] (Gummow J) and [118] (Hayne J); see also McPherson's Ltd v Eaton (2005) 65 NSWLR 187 at [5]-[17] (Mason P). 89 The standard by which the content of the duty is determined requires reference to the risk to persons taking reasonable care for their own safety: see Brodie v Singleton Shire Council (2001) 206 CLR 512 at [163] (Gaudron, McHugh and Gummow JJ). It is in this context that language of "obviousness" or "concealed danger" or "trap" is used, as a shorthand for identifying those risks which are either readily foreseeable by people taking reasonable care for their own safety, or which are not foreseeable by such persons. There is, however, a significant area between these poles into which many cases will fall. Further, just as an occupier is not required to guarantee safety, so the pedestrian taking reasonable care cannot be expected to identify all risks, even if they are reasonably apparent. As explained in the joint judgment in Brodie, at [163], "some allowance must be made for inadvertence". 90 In considering the apparentness of a particular risk, it is also important to bear in mind the distinction between the feature giving rise to the risk and the risk itself. Thus, what the person taking reasonable care for his or her own safety is required to appreciate is not merely the presence of an object or defect, but the kind of injury which may result if care is not taken and, in some circumstances, the likely mechanism by which the risk will materialise. These are factors which may, accordingly, need to be borne in mind in determining the content of the duty and the questions of breach and even causation. In relation to duty the circumstances must be viewed from the perspective of the reasonable defendant without the benefit of hindsight: see, eg, Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 at [50]-[53] (Hayne J). 91 Two features of the bus interchange are relevant to this question. The first is that pedestrians using the interchange may have various calls on their attention. Similarly, some obstacles may be concealed by other people or things. Thus, the fact that there was no crowd present at the time of the Appellant's injury is a matter which goes to causation rather than the content of the duty. 92 It may be accepted that pedestrians should be conscious of the need to avoid obstacles on a footpath or pavement. These will include seats, rubbish bins, poles with signs and other similar constructions. On the other hand, ankle-high barriers (such as that in Gosford City Council v Needs [2003] NSWCA 144) or head high protrusions, as in the present case, are less likely to be found in a pedestrian thoroughfare. 93 The cage in question, being relatively low, may well have provided little risk to persons of average height or above. First, an object below eye level is more likely to be perceived than one above, and, secondly, a collision with an object at, say, shoulder level, is less likely to cause harm than one at head level. By the same token, the cage would have been at or even above eye level for a short person, including some children, who should have been expected to use the interchange. Accordingly, in my view the Council did owe a duty of care to a class of such people, including the Appellant, to alleviate the risk of head injuries resulting from people walking into the cage.

Breach 94 The risk of a collision between a person's head and a fixed metal cage, even at walking speed, is a risk of quite significant injury. It is not one which a reasonable person, having identified the risk, could reasonably disregard without giving consideration to possible means of alleviation. 95 The means of alleviating the risk were relatively straightforward. One option, which appears to have been adopted after the accident, was to place a rubbish bin below the cage, so as to force pedestrians around it. An alternative may have been to put a cylindrical curved handrail around the column, at about waist height, of similar construction to the upside down U-shaped pedestrian barrier on the pavement to the west of the column. There was no evidence as to the likely cost of such a construction, but it may be inferred that it would not have been difficult to design or expensive to construct. It would have had the double advantage of ensuring that pedestrians avoided both the cage on which the Appellant struck her head and the potentially more dangerous cage on the north side of the pillar (forming the end of the wall) at a slightly greater height. 96 An alternative course would have been to place the monitors in a slightly different position, but that would, in my view, have required more evidence than the Court had available to it to be sure that such a course was reasonably open. The monitors performed a safety function in relation to the level of toxic gases and no doubt required distribution at appropriate points throughout the interchange and at particular heights. I would not infer that it would have been reasonably open to the Council to move the monitors to a less dangerous position. One further alternative was to ensure that the cages were entirely conspicuous, including at night. It is possible that the cage in question was originally painted a bright yellow with that end in mind. However, the evidence of the Appellant that it was a "dirty yellow" suggests that it was, at the date of the accident, not brightly visible. Without evidence as to night-time visibility, it is not possible to know whether that would have been a reasonable and sufficient option.

Conclusions as to duty and breach 97 The risk of a pedestrian colliding with a head high protrusion, extending some 25cm into the area within which pedestrians could otherwise walk, involved a readily foreseeable risk of harm to a pedestrian taking reasonable care for his or her safety, but who was momentarily distracted or otherwise inadvertent. Such inadvertence was foreseeable. 98 The likely harm, should the risk materialise, was significant. It required the consideration of steps which might be taken to alleviate the risk. 99 The erection of a simple rail would have alleviated, if not entirely removed, the risk. That step would not have involved unreasonable expense, difficulty or inconvenience to the Council. Accordingly, the Appellant established both duty and breach.

Causation 100 As already noted, the precise manner in which the Appellant came to strike her head on the cage remains somewhat obscure. Her evidence was that she was briefly looking down to operate her mobile telephone, whilst continuing to walk. That exercise, she explained, required her to scroll through numbers in the memory of the phone and press a button when her husband's number appeared. She said that she was holding her phone in her left hand with her forearm roughly horizontal. 101 It seems doubtful that she could have been distracted for more than a few paces. She claimed, and it seems plausible, that she did not notice the cage before looking at her phone. However, it also seems plausible (although she denied it) that she must have veered to her left whilst continuing to walk: Tcpt, 6 December 2005, p 50. Nevertheless, the simple guardrail which should have been installed, on the finding made above, would have prevented her walking into the cage and thus prevented the injury.

Contributory negligence 102 It remains to consider the extent to which her own lack of care contributed to the accident. Two inferences may reasonably be drawn. The first is that had she not continued to walk whilst attending to her mobile phone, she would not have collided with the cage. The second is that if she looked down for only a few paces, she was careless in failing to observe the cage before commencing to use her phone. It seems likely that she failed to exercise reasonable care in observing where she was going. Stopping for a few seconds whilst she dialled her husband's number, and maintaining a reasonably straight course whilst using the telephone were necessary steps in taking reasonable care for her own safety. 103 An assessment of proportionate liability is very much a matter of impression, but I would conclude that she was 50% responsible for the accident.

Damages 104 As noted by the President, the trial judge did not assess damages. This Court was not invited to undertake this task, nor should it; it will be necessary to remit the matter to the District Court with a finding on liability, for a retrial limited to the assessment of damages.

Conclusion 105 I would propose the following orders:

(2) Set aside the judgment and orders made by the District Court on 24 February 2006.

(3) In lieu thereof, give judgment for the Appellant (plaintiff) on the question of liability, subject to a finding of 50% contributory negligence on her part.

(4) Remit the matter to the District Court for the assessment of damages.

(5) Order the defendant to pay the plaintiff's costs of the first trial in the District Court.

(6) Order the Respondent to pay the Appellant's costs of the appeal. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.