South Sydney Council v Walsh [2003] NSWCA 102 | Case summary

Thursday 24 April 2003 SOUTH SYDNEY COUNCIL v WILLIAM J WALSH Judgment 1 IPP JA: At about 6.30pm on 6 August 1998 Bao Xin Yuan ("the plaintiff") was walking across Mitchell Road, Alexandria from east to west at a pedestrian crossing. At the same time, the respondent was driving a Toyota Land Cruiser station wagon along Mitchell Road in a southerly direction. 2 In the centre of Mitchell Road there was a concrete strip that served as a pedestrian refuge. When the plaintiff was some distance across the southbound carriageway (before reaching the pedestrian refuge), he was struck by the respondent's vehicle and was injured. 3 The plaintiff commenced proceedings in the District Court claiming damages from the respondent. That action was settled for the sum of $500,000 inclusive of the plaintiff's costs. The respondent cross-claimed against the appellant in respect of the $500,000 paid by it to the plaintiff. 4 The respondent alleged that the appellant was negligent in constructing the pedestrian crossing and in maintaining it without providing for adequate lighting. The respondent claimed an indemnity or contribution from the appellant in respect of his liability to the plaintiff. The respondent's claim was based on s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. 5 The appellant was empowered by s 87(2) of the Roads Act 1993 to carry out "traffic control work". Such work was defined in the dictionary to the Roads Act as including: "any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of the traffic control facility. 6 For the meaning of "traffic control facility" the Roads Act referred to the Traffic Act 1909 which by s 2E(1) defined such a facility as relevantly including: "(d) any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on public streets or to warn, advise or inform the drivers of vehicles, or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic …". 7 The pedestrian crossing was a traffic control facility. It was not in dispute that the appellant's power to construct and maintain such a facility embraced the power to have adequate lighting at the facility for the safety of persons who used it. 8 The appellant and the respondent agreed that the settlement of $500,000 inclusive of the plaintiff's costs "was an appropriate figure and a proper settlement". No point was made at the trial or on appeal that the plaintiff's entitlement was established by settlement and not by judgment. It was nevertheless accepted that it was for the respondent to prove that he was negligent and that his negligence caused or contributed to the plaintiff's loss. 9 The weather at the time of the collision was described as atrocious. It was pouring with rain, it was a pitch black and it was a very windy night. There was water on the roadway. The respondent said that he was travelling at a speed of about 45 to 50 kilometres an hour before the collision. This testimony was supported by expert evidence. It is plain from his Honour's reasons that he accepted that the respondent was travelling at that speed. 10 His Honour was also satisfied that the respondent "should have driven at a slower speed". His Honour held that the respondent was negligent in not doing so. He also held that had he been travelling at a slower speed:

It is implicit from his Honour's reasons that he considered that the respondent's negligence, in travelling at the speed that he did, caused or contributed to the collision. 11 Coorey DCJ held that the lighting at the pedestrian crossing was deficient. He noted that there was evidence that shortly after the collision took place a number of cars collided with the concrete pedestrian refuge in the middle of the road. In the circumstances that obtained that evening the drivers of those vehicles were apparently not able to discern the presence of the refuge. The investigating police officer found that the lighting at the pedestrian crossing was not sufficiently bright to enable him to write in his notebook. He had to move to a shop window to rely on light from a drinks refrigerator. 12 Taking into account that there was no challenge that Mitchell Road was "an extremely busy road in a built-up area", his Honour concluded that the appellant had breached its duty "in failing to provide supplementary lighting at the pedestrian crossing". He also held that: "[H]ad there been improved lighting at the pedestrian crossing on the evening of the accident … the accident would not have occurred." 13 He concluded that, had the plaintiff sued the respondent and the appellant, they would have both been liable to him as joint tortfeasors. He apportioned damage on the basis that the appellant was sixty per cent responsible for the damage and the respondent forty per cent responsible. 14 The appellant appeals against Judge Coorey's decision, contending that his findings that the appellant was negligent, that the respondent was negligent, and that the collision was caused by the negligence in question, were in error. 15 Mr Curtin, who appeared for the appellant, submitted that the appellant's omission to install supplementary lighting at the crossing was not unreasonable. He relied on certain Australian Standards according to which supplementary overhead lighting of pedestrian crossings is only necessary where there is significant night-time pedestrian use of the crossings concerned. He submitted that in this instance the use was not significant. He drew attention to evidence that indicated that over different (daytime) periods the total amount of pedestrians using the pedestrian crossing varied from ten per hour to thirty six per hour. 16 While the Australian Standards certainly carry weight, they are not conclusive. For my part, I do not agree that busy pedestrian crossings need to be well lit with supplementary lighting, while crossings that are seldom used can be left with inadequate lighting. According to this approach, one level of care must be taken to protect the safety of those who walk across busy pedestrian crossings, while a lower degree of care need be taken for those who cross at less frequently utilised crossings. In my view, this proposition is unacceptable. 17 By installing a pedestrian crossing, a council invites pedestrians to cross the street at that point and represents that the crossing will be a safer place to cross than elsewhere in the vicinity. Pedestrians are led to believe that due care will be taken to apprise motorists that a pedestrian crossing lies ahead and in consequence pedestrians will have priority. For this reason, as the evidence indicated, pedestrians tend to use less care when walking across a pedestrian crossing than they otherwise would. 18 The Austroads Guide to Traffic Engineering Practice states expressly: "Pedestrian crossings and refuge islands require better illumination than surrounding areas to ensure that they attract the attention of both pedestrians and drivers". 19 In my opinion, by creating a pedestrian crossing with inadequate lighting, the appellant created a dangerous situation. In these circumstances, the following statement in the joint judgment of Mason, Brennan and Deane JJ in Webb v The State of South Australia (1982) 43 ALR 465 at 467 is relevant: "Of course a pedestrian could avoid the possibility of injury by taking due care. However, the reasonable man does not assume that others will always take due care; he must recognise that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety. It seems to us that the courts below gave undue emphasis to the circumstance that injury could be avoided by a pedestrian who took reasonable care for his own safety". 20 In Campbelltown City Council v Bussell [2002] NSWCA 410 it was said that these remarks are of particular relevance where the defendant has, by its conduct, actually created the danger. 21 Underlying the appellant's argument, although reliance thereon was disavowed, is the proposition that the cost of installing supplementary lighting to many pedestrian crossings would be exorbitant. There are several difficulties with this argument. Firstly, it was not run below. Secondly, there was no evidence as to the cost of installing supplementary lighting. Thirdly, there was no evidence as to the number of crossings that would require supplementary lighting and, fourthly, there was no evidence of what such cost would mean to the appellant in particular or local authorities generally. 22 The rejection of the appellant's argument would say nothing about the need to install supplementary lighting at some other pedestrian crossing. The evidence in this case establishes that the street lighting at the crossing in Mitchell Road was poor and the area was dangerously ill-lit at night. There is nothing to say, however, that the street lighting at other crossings is inadequate. Each case has to be determined on its own merits. 23 I should mention that there was a considerable body of expert evidence that dealt with the need to have supplementary lighting constituted by floodlights. The experts were in dispute. I do not think it necessary to outline the detail of the dispute. In my opinion, on the simple facts to which I have referred, his Honour was entitled to come to the conclusion that the appellant was negligent in failing to provide adequate lighting at the pedestrian crossing in question. 24 I now turn to the appellant's challenge to his Honour's finding that the respondent was negligent in driving his vehicle at a speed that was dangerous in the circumstances. 25 Mr Curtin pointed to the fact that the speed of forty-five to fifty kilometres an hour was below the speed limit of sixty kilometres an hour. He placed considerable reliance on Derrick v Cheung (2001) 181 ALR 301. He referred in particular to the judgment in the Court of Appeal of Davies AJA in dissent whose judgment was approved in the High Court. In that judgment, his Honour noted that the driver had driven her car at a modest speed of forty-five kilometres per hour, had kept an appropriate distance between her vehicle and the vehicle in front, and had kept a proper look out. His Honour then said: "[T]he appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day". 26 Mr Curtin submitted that the facts of this case, while not entirely the same as Derrick v Cheung, were such that Davies AJA's remarks were applicable. Essentially, he submitted that there was no particular danger observable to the respondent and on that basis forty-five to fifty kilometres per hour was an appropriate speed. He argued that the finding of negligence was not justified unless there was evidence that the respondent should have realised that something potentially dangerous might occur which would require him to take steps out of the ordinary and travel at an even slower speed. He also submitted that there was no evidence from which a judge could measure quantitatively what the reduction should have been. 27 I am not persuaded by Mr Curtin's submissions in this regard. The respondent in this case was driving a large heavy vehicle. The weather was appalling and not only was the rain driving down but the wind was blowing wildly, and visibility was difficult. This is quite apparent from the fact that the other drivers had such difficulty in seeing the concrete refuge. Furthermore, the road was an arterial road and as his Honour noted, and as I have already mentioned, it was an extremely busy road in a built-up area. 28 Moreover, in conditions of such poor weather, with rain beating down, there was a danger of pedestrians running across the road and behaving in an abnormal way. 29 This was not a Derrick v Cheung situation where the weather was fine, where the road was dry and the visibility was good. The present circumstances were very different from Derrick v Cheung. 30 In these circumstances, there was ample evidence on which the judge could find that it was negligent to travel at a speed of 45 to 50 kilometres per hour. The expert called by the appellant, itself, conceded that such a speed may have been dangerous. 31 In the circumstances, despite Mr Curtin's careful argument, I am not persuaded that his Honour was incorrect in finding the respondent was negligent in driving too fast. 32 I now turn to the question of causation. Mr Curtin's argument on this issue involved working backwards from the point of impact in order to demonstrate from evidence given by the respondent and experts that the respondent must have seen the plaintiff on the verge some distance before he stepped off onto the road, and then arguing that the presence of floodlights would have made no difference to the respondent (that is because the floodlights would not have illuminated the area to any greater extent than the degree of illumination that was present at the time). 33 There are inherent difficulties in this argument, as it is based on a subjective selection of the evidentiary material and estimates given by witnesses, but even if one were to accept the submissions as being correct they do not in my opinion answer the finding of causation made by the trial judge. 34 Accepting Mr Curtin's warnings about attaching weight to photographs, I am satisfied that photographs tendered in evidence demonstrate conclusively that, had there been overhead floodlighting, the crossing would have been visible for at least some one hundred metres. That is because the floodlights would have illuminated a reasonably wide bar right across the road and this would have made it plain to all oncoming traffic that unusual and changed circumstances lay ahead. Even had it been raining to the degree that it was, with the wind blowing and the roadway wet, the overhead lighting in my opinion would have made the crossing so obvious that traffic would have realised what they were approaching and that caution was needed. 35 It is arguable that the respondent did not exercise due care in regard to the lookout he kept, but his Honour made no finding in this respect. The respondent did not see the pedestrian crossing. The distance at which he saw the plaintiff is open to question and it may well be that he could and should have seen him earlier than he did. The respondent did see the centre white line along Mitchell Road and the concrete refuge. He did not see the zigzag warning of the approach of the pedestrian crossing (which had been painted on the road and extended for a distance of some ninety to one hundred metres). There is, however, some excuse for the latter failure as there was evidence that when the road was wet the zigzag marks became faint. 36 The point of mentioning the objects that the respondent saw and did not see is to indicate in my view that he was at least to some degree keeping an eye on what lay ahead. This leads me to conclude that, had overhead floodlights illuminated the pedestrian crossing (in accordance with the Australian Standards for supplementary lighting), the respondent would have seen it. It is likely that in such circumstances he would have slowed down. 37 There was evidence that, had the respondent applied his brakes half a second before the time that he did, he would have stopped before the pedestrian crossing. On that basis it seems to me that, had he slowed down even to a reasonably small extent from the speed he was travelling, the collision would have been avoided. I do not accept that the fact that the judge could not measure with precision what the reduction should have been has any bearing on the question of causation and indeed on the question of the negligence of the respondent himself. 38 One merely has to contrast the situation that would have obtained had the pedestrian crossing been illuminated by overhead floodlights with what must have been a black hole into which the traffic proceeded through the rain on the night in question. The overhead floodlights would not only have illuminated the road. but signs in the vicinity including a sign with legs on it indicating that there was a crossing in the vicinity. 39 The respondent gave evidence that, had the area been lit up and had he seen the crossing earlier, he would have slowed down. Mr Curtin rightly warned against attaching too much weight to this testimony but it does have some significance. This is a very different case to that of a patient who asserts after the operation that, had he or she been given the requisite information, the operation would not have been carried out. Here, as I have said, the difference in road conditions would have been so obvious that the likelihood of oncoming traffic slowing down was strong. 40 Finally, Mr Curtin submitted that his Honour erred in giving no reasons for the finding that the appellant's negligence caused or contributed to the accident. 41 His Honour did refer to the respondent's evidence that, had the lighting been to a different standard, he would have slowed down. His Honour found that, that had there been improved lighting, the accident would have not occurred. He thereby implicitly held that the improved lighting would have led to sufficient slowing down on the part of the respondent to avoid the accident. 42 In my opinion, his Honour's reasons satisfy the tests required for the giving of reasons. This is not a complicated case, in fact it is a case of relative simplicity and I have no doubt that any reasonable person on reading his Honour's reasons would understand why he came to the conclusion that he did. 43 In these circumstances, I would dismiss the appeal. 44 FOSTER AJA: I agree with the orders proposed by the learned presiding judge and with his reasons for giving them. I have nothing to add. 45 BELL J: I also agree. 46 IPP JA: That will be the order of the Court. POULOS: Your Honour there is a matter that unfortunately, in view of the time, I am loath to raise. There was an offer of compromise in this matter before the trial, it would be our submission that certain costs orders should be made in view of that fact. Would it be in order in view of the time for us to prepare a short submission in respect of that?

South Sydney Council v Walsh

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