Supreme Court of SA|2000-07-13

WADE v AUST RAILWAY HIST SOC T/A STEAMRANGER & ORS No. SCGRG-94-1672 [2000] SASC 233 (13 July 2000)

NEGLIGENCE - LEVEL CROSSING CASES DUTY OF CARE - NON-FEASANCE IMMUNITY - ASSESSMENT OF DAMAGES Collision between plaintiff's motorcycle and steam train at level crossing - plaintiff claimed damages for negligence against first defendant, the operator of the train, (`Steamranger') and second defendant, Alexandrina Council (`Council') - whether Council owed a duty of care to clear roadside vegetation - whether Council or Steamranger in breach of duty of care in failing to have stop sign placed at level crossing - whether Steamranger in breach of duty of care in relation to speed of train. Consideration of role of appellate court. Whether highway non-feasance immunity abrogated by Pt 1B of the Wrongs Act 1936 (SA) - whether non-feasance immunity extends to failure to clear vegetation on verges of a highway - whether non-feasance immunity overtaken by recent High Court cases - whether, if immunity no longer applies, a common law duty of care was owed by the Council in relation to roadside vegetation. Whether trial judge's assessment of plaintiff's contributory negligence appropriate. Whether damages for `future care' inadequate - whether assessment of `future economic loss' excessive and against weight of the evidence.

Whiteley Muir v Zwanenberg Ltd v Kerr (1966) 39 ALJR 505;
Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; (1996) 71 ALJR 29, applied.
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq.) [1999] HCA 3; (1999) 73 ALJR 306, discussed.
Wrongs Act 1936 (SA) Pt 1B, referred to.
Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259;
Gorringe v The Transport Commission [1950] HCA 6; (1950) 80 CLR 357;
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 74 ALJR 1;
Threadgate v Tamworth City Council [1999] NSWCA 32 (24 February 1999);
Hill v Commissioner for Main Roads (NSW) (1989) 9 MVR 45;
Garcia v National Australia Bank [1998] HCA 48; (1998) 194 CLR 395;
Bretherton v Hornsby Shire Council [1963] SR(NSW) 334, applied.
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424;
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, discussed.
DPP v Jones [1999] UKHL 5; [1999] 2 All ER 257;
Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479, considered.
Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, considered.
Beneke v Franklin (1975) 1 NSWLR 571;
Piepkorn v Kent (1980) 91 LSJS 186, applied.

Counsel: MR S WALSH QC - Solicitors: ANGELA BENTLEY & ASSOCIATES

First Defendant (APPELLANT) AUSTRALIAN RAILWAY HISTORICAL SOCIETY (SOUTH AUSTRALIAN DIVISION) TRADING AS STEAMRANGER:

Counsel: MR A BESANKO QC WITH MR D STRATFORD - Solicitors: ROWELL FORREST & CO.

Counsel: MR D GREENWELL WITH MR W DUDDY - Solicitors: DUDDY SHOPOV

Counsel: MR M GRAY QC - Solicitors: CROWN SOLICITOR FOR THE STATE OF SOUTH AUSTRALIA

Judgment No. [2000] SASC 233

On Appeal from HIS HONOUR JUDGE BURLEY, A MASTER OF THE SUPREME COURT

WADE v AUSTRALIAN RAILWAY HISTORICAL SOCIETY (SOUTH AUSTRALIAN DIVISION) trading as STEAMRANGER & ORS

DOYLE CJ. The plaintiff, Mr Wade, suffered very serious injuries when he and the motorcycle that he was riding collided with a train drawn by a steam locomotive operated by the defendant Australian Railway Historical Society (South Australian Division) ("Steamranger"). The collision occurred at a level crossing where the road on which the plaintiff travelled crossed a railway line. The road was vested in and maintained by the defendant Alexandrina Council ("the Council"). Immediately before the collision Mr Wade was riding his motorcycle in a northerly direction on Airport Road. The train was travelling in a south easterly direction along the railway line. Thus, the train was approaching the level crossing from a point ahead of Mr Wade and to his left. The angle formed by the plaintiff's lefthand side of the road and the railway line where it meets the lefthand side of the road is an angle of about 130 degrees.

The plaintiff sued Steamranger and the Council for negligence.

The action was tried by a Master of this Court. The Master found both defendants liable. He found that Mr Wade was guilty of contributory negligence, and reduced his damages by 70 per cent. The Master apportioned two-thirds of the liability to the Council, and one-third to Steamranger. The Master assessed Mr Wade's damages at $1,725,554.99. Judgment was entered for the plaintiff against both defendants for $524,666.50.

All parties have appealed against the judgment on a number of grounds. The parties challenge findings of fact and conclusions of law, and the assessment of damages.

I begin with a general description of the place at which the collision occurred. Airport Road is vested in the Council, and is under its care, management and control: Local Government Act 1934 s 301 and s 306.

On the immediate approach to the level crossing Airport Road runs in a north-south direction. The railway corridor crosses it in a north-west south-east direction. For a train approaching the crossing from the north-east, the railway track curves to the left about 340 metres from the level crossing. For a person approaching the level crossing on Airport Road from the south, the road curves to the left about 220 metres before the crossing and then runs straight in a

northerly direction for about 180 metres until it crosses the railway line. Mr Wade was approaching the level crossing with the train approaching the level crossing from his left side. Mr Wade was on the right side of the train as it approached the level crossing.

The level crossing is located in a rural area. The railway line is used only by tourist trains and then on an infrequent basis. The road, however, is reasonably busy with a high volume of vehicular traffic. [AB 64]

I shall deal in more detail later with the traffic control devices and signs on the roadway and at the level crossing. For present purposes it is sufficient to note that there were several signs at the crossing, on the roadway and on the approach to the level crossing, including a give-way sign and advisory speed signs. There was no barrier or flashing lights and no stop sign on the level crossing.

There was vegetation growing on the verges on either side of the roadway on the approach to the level crossing. The Master found that on the day of the accident the vegetation on Mr Wade's left hand side did not cease until a point about 50 to 60 metres south of the level crossing. [AB 53] I shall deal with the findings as to vegetation in more detail later.

It was common ground between the parties at trial that Steamranger had a right to occupy, and a duty to maintain, the railway corridor. [AB 40]

As I have already said, the plaintiff was riding his motorcycle on Airport Road towards the level crossing, and travelling in a northerly direction. The train was travelling towards the level crossing in a south easterly direction. As Mr Wade approached the level crossing, after rounding the last bend in the road, the train was approaching the level crossing from a position ahead of Mr Wade and to his left.

As I understood the submissions on appeal, there was no challenge to the Master's findings about how the collision occurred, as distinct from the findings as to the causes of the collision. I turn to the findings about how the collision occurred.

The Master's findings about Mr Wade's movements are straight forward. Mr Wade had no memory of the accident. The findings are based on evidence from other persons.

Mr Wade rode his motorcycle around the last bend in the road at a speed of between 90 kph and 100 kph. [50] As Mr Wade straightened up he was about 180 metres from the level crossing. Mr Wade continued on without significantly reducing his speed. [53] Mr Wade did not hear the train's whistle which was being sounded, because of the noise of his motorcycle and because of the padding in his helmet. [58 and 66] Mr Wade became aware of the train when he was between 50 metres and 60 metres from the level crossing, and as the front of the locomotive was about to enter the level crossing. [56] About 30 metres from the level crossing Mr Wade began to brake, leaving a skid mark that began 19 metres from the point of impact. [53] The motorcycle hit the rear of the locomotive's tender, in about the centre of the level crossing. [62] Mr Wade was travelling at about 10 kph or 20 kph at the moment of impact. [57]

I now turn to the findings relating to the train.

As the train approached the level crossing, the railway track curved to the left, about 340 metres from the level crossing. At the start of this curve is a "whistleboard". The driver sounded the train whistle at this point, about 340 metres from the level crossing. [28] A reference to exhibit 1D71, which exhibit the Master appears to have accepted as accurate (except that it indicates Mr Wade's speed as 70 kph), indicates that at this stage the locomotive was about 21 seconds from the moment of impact.

The train was approaching the level crossing at a constant speed of 64 kph, and was still travelling at that speed at the moment of impact. [61]

The fireman, Mr Smyth, was on the right side of the locomotive, the side of the train from which Mr Wade was approaching.

Mr Smyth first saw Mr Wade through a gap in the foliage on the western or closer side of Airport Road. Mr Wade was then about 220 metres from the level crossing, near a black and white road sign at the northern or closer end of the last curve in Airport Road. [52] The Master made a finding about the distance of the train from the level crossing when Mr Smyth first saw Mr Wade. At that moment, the rear of the tender of the train was about 150 metres north west of the crossing, and so the front of the locomotive must have been about 120 metres (or about 7 seconds travelling time) from the crossing. At the speed at which it was travelling, the train could not have stopped in less than 150 metres. [63]

It follows that it was already too late for the train to stop, but a heavy application of the brakes at that moment might have slowed the train sufficiently for the plaintiff to have passed in front of it.

When the fireman saw Mr Wade he sounded the whistle again, realising that Mr Wade might not have heard the previous whistle blast. [29] When he sounded the whistle for the second time, he said that the train was about 100 metres from the crossing. [29] It is not clear to me whether the Master has made a finding to that effect, and it may be that his findings mean that this whistle blast began when the front of the train was about 130 metres from the crossing. In terms of travelling time for the train, the difference is only a matter of a second or so, and I consider that it can be disregarded. The train was then about less than six seconds from the moment of impact.

Mr Smyth continued to sound the whistle until the locomotive reached the level crossing. [29]

When this continuous whistle blast began, Mr Wade was about 200 metres from the level crossing. [58] He was at most 11 seconds from the moment of impact, and had plenty of time to stop. The time of 11 seconds is based on Exhibit ID71, which in turn is premised on a speed of 70 kph. In view of the finding that Mr Wade's speed was about 90 kph, the available time would have been less than eleven seconds.

Mr Smyth stopped sounding the whistle as the front of the locomotive cleared the level crossing, thinking that Mr Wade, still approaching, must have seen the train and would stop. But he observed that Mr Wade did not react until he was about 30 metres or less than three seconds from the point of impact. The collision then occurred.

It is convenient now to record some findings of the Master that, in my opinion, and subject to one point, cannot be successfully challenged. They are findings that were open on the evidence, and the evidence provides no sound basis for this Court to overturn those findings.

The Master found that the fireman kept a proper lookout, and gave adequate warning (using the whistle) of the train's approach. [63, 66] The train was, of course, a substantial thing and its headlight was on. The Master found specifically that although the train crew knew this was a dangerous level crossing, and were aware of near misses having occurred at it, there was no basis for a finding that the speed of the train was too high. [72] That finding requires some further consideration later. The Master found that foliage within the railway corridor played no part in the collision. [80]

He found that the circumstances did not require or warrant the installation at the crossing of a boom or flashing lights or both. [78, 79] No evidence of standards relating to safety at level crossings was drawn to our attention which would cause me to reject that finding.

These and other findings, to which it is not necessary to refer, left alive two issues on the question of negligence. The first is whether the foliage on Mr Wade's left side of the road was a cause of the collision, and whether the Council was in breach of a duty of care in permitting the foliage to remain there. It was not pleaded that Steamranger owed a duty of care requiring it to clear roadside vegetation. [80] The second issue is whether either defendant was in breach of a duty of care in failing to have a stop sign placed at the level crossing, and facing the direction from which Mr Wade approached.

In one sense, the explanation for the collision is obvious. On the Master's findings Mr Wade simply failed to adjust his speed to the fact that he was approaching the level crossing. The Master found that as Mr Wade cleared the bend to his left, when he was 170 metres from the level crossing, he must have seen markings on the roadway and a road sign warning him of the level crossing ahead, and must have seen a give way sign at the level crossing. [93] It follows, as the Master found, that Mr Wade had every opportunity to slow down, but that he ignored the warning signs until he was about 30 metres from the crossing. [93] As well, Mr Wade failed to observe the approach of the train until he was about 50 metres or 60 metres from the level crossing. [56] By this time, it was too late for Mr Wade to stop. The effect of the Master's findings is that Mr Wade was aware that he was approaching a level crossing, but simply took the chance that there was no train approaching. [110]

The cause of the collision was, from this point of view, the failure by Mr Wade to react to the presence of the level crossing and his failure to observe that the train was approaching the level crossing.

From the point of view of the train crew, by the time the fireman saw Mr Wade it was too late for the train to stop before it reached the level crossing. Nor, I think, would anyone suggest that at that moment the fireman should have acted on the assumption that the plaintiff had not seen the train and would not see the train. On the other hand, if the train had approached the crossing more slowly, or if the crew had begun to brake sooner than they did, perhaps the plaintiff would have passed safely in front of the locomotive.

The Master's findings on this matter were strongly challenged on appeal by the Council.

The Master heard a fair bit of evidence about the foliage. He viewed the scene, although this was some years after the collision. There was no witness who was able to give detailed evidence of observations made of the vegetation as it was at the time of the collision. Presumably none of those present at the accident realised the significance of the matter, and so none of them made detailed observations. Mr Thomas gave evidence of observations made about four weeks after the accident, and produced a video record of parts of the vegetation. The evidence before the Master was a mix of what might be called limited observations made on the day, or soon after, and then later reconstructions by expert witnesses. As well, as one would expect, changes to the foliage have occurred over time, and some of the foliage has been removed.

The Master found that "from a point approximately 200 metres south of the level crossing, the vegetation on both sides of the road would have created the impression of a tunnel on the day of the accident." [25] Mr Greenwell, counsel for the Council, made a vigorous attack on that finding. In my opinion his approach is misconceived. The finding is not particularly important. It simply means that from 200 metres south of the crossing, looking ahead, there was enough foliage either side of the road to create the impression of a tunnel. The finding does not mean that the foliage was impenetrable, or even continuous. It does not mean that there were no gaps in the foliage, through which Mr Wade could have seen the train had he looked with sufficient care.

The Master found that the effect of the foliage on Mr Wade's left was that his view "was severely restricted by the presence of vegetation on the western side of the road to a point 50 to 60 metres south of the level crossing". [96] He then said:-

"Leaving that vegetation in place is almost an invitation for an accident to occur based on the inability of the motorist to detect the presence of a train in the rail corridor."

"[A]ny person approaching the level crossing from the south who slowed down sufficiently to be able to look carefully to the left and to the right at a point where the roadside vegetation ceased, would have had no trouble in identifying that a train was approaching the crossing, at a point at least 100 metres along the rail corridor on either side of the level crossing."

In other words, Mr Wade could have seen the train when it was 100 metres from the level crossing. It is important, then, to identify the point at which the roadside vegetation ceased. The Master repeated this finding a little later, but in slightly different terms. Referring to Mr Wade, he said [58]:-

"It would have been difficult for him to see the approach of the train from his left until he was clear of the foliage on the left-hand side of the road."

Immediately after that he found that the foliage ceased at a point about 50 to 60 metres south of the level crossing. [59] He was unable to make precise findings about the nature and extent of the last 40 or 50 metres of that foliage, but found that the last 30 or 40 metres of the foliage "would have obscured the plaintiff's view to the left had he been looking to the left". [59]

My conclusion is that the Master found that over some distance the foliage on the left hand side of the road presented a significant obstruction to Mr Wade's view to the left. It was difficult for him to see, but not impossible. It follows, I think, that had Mr Wade slowed or looked more carefully, he could have seen the train. The Master has also found that once Mr Wade was 50 metres or 60 metres from the level crossing, there would have been no difficulty seeing the train. However, allowing for reaction times, and bearing in mind that on the Master's findings this was when Mr Wade apparently saw the train, it was already too late.

The Master was critical of the Council in relation to the state of the foliage, and his finding about this was one basis upon which he found the Council liable. In a portion of his reasons to which I have already referred, he said that the vegetation was "almost an invitation for an accident to occur". [96]

To some extent the submissions by Mr Greenwell invited the Court to revisit the relevant evidence, including the expert evidence, and to reach a different conclusion. It is the duty of this Court to consider whether the findings are correct. However, it is not for this Court merely to substitute its own view, as if it were again performing the function of the trial judge.

I respectfully adopt the remarks of Barwick CJ in Whiteley Muir v Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 that:

"The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong."

Those remarks were approved in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; (1996) 71 ALJR 29 at 31 the High Court there reiterating that a court of appeal should not treat an appeal as a hearing de novo. Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306, indicated his disapproval of this "traditional" approach, however, there has been no indication that the other members of the Court share his disapproval and I see no reason to depart from it.

To some extent the submissions were that despite the foliage, there were gaps in the foliage through Mr Wade could have observed the train. I do not consider that the Master has found otherwise. He found that the foliage presented a significant obstruction, but not that Mr Wade was unable to see the approaching train. To a considerable degree, in my opinion, Mr Greenwell's submission misses the point. The true challenge to the finding is in the difficult area of the extent of the obstruction.

I can find no basis in Mr Greenwell's submissions to disturb the Master's finding, so understood, that there was a significant obstruction to Mr Wade's view to his left. It is consistent with the Master's finding that had Mr Wade slowed down, or even just looked more carefully to his left, he probably would have seen the train.

Mr Greenwell pointed to some evidence given by Mr Busch, a member of Steamranger. Mr Busch wrote to the Council on 28 November 1991, at the prompting of the Police, saying that Steamranger had been requested to take steps to remove vegetation on Airport Road which was "currently restricting a motorist's view of the railway". The Council agreed to Steamranger doing this. Mr Busch and a Mr Neville, an employee of the Council, undertook some clearance work in January 1992. They removed some branches of trees, and Mr Busch said "we mainly removed low hanging boughs off of gum trees". [T875] Mr Greenwell's submission was that because the effect of Mr Busch's evidence was that very little foliage was removed, the Master should have inferred that there was virtually no need to remove foliage, and so in turn should have inferred that the foliage did not present any significant obstruction to Mr Wade's view to his left. That submission lacks substance. The evidence of Mr Busch was quite vague. There is a good deal of uncertainty about the location of the vegetation that was removed, that is, how far it was from the level crossing. Mr Busch was not asked to explain in any detail how the task was approached, and Mr Greenwell's submission rests entirely on an assumption that Mr Busch made a proper assessment of the situation, that he knew what line of sight should be achieved, and that he gave careful consideration to the matter. None of these things are addressed in Mr Busch's evidence. Indeed, it emerges from his evidence that the decision as to what foliage would be removed was made by Mr Neville, who was not called as a witness. [T881] In my opinion there is simply no basis in any of this upon which one could reject the Master's findings.

The same comment applies to some equally vague evidence based upon vegetation clearance undertaken by the Council some time later.

Mr Greenwell also submitted that as a number of witnesses who were on the train said that they had a reasonably clear view of Mr Wade travelling along the roadway, it must follow that he had an equally clear view of the train. In my opinion that does not follow. In any event, I do not find any significant inconsistency between the Master's findings and the evidence to which Mr Greenwell refers. The relevant witnesses referred to Mr Wade being obscured from vision from time to time by foliage.

There was evidence before the Master that suggested that the foliage did present an obstruction to vision of the kind that the Master found existed.

For those reasons I am not satisfied that the Master's findings as to the extent of the foliage should be set aside.

There is no challenge to the findings that the Master made about the road signs that existed on the day of the accident.

The Master found [60] that on the southern side of the bend that Mr Wade rode through there was an advisory sign indicating an advisory speed of 45 kph.

About 80 metres south of the level crossing the letters RX were painted on the road, warning of a level crossing. Adjacent to these road markings was a sign with the words "Rail Crossing" and a triangular red sign of the well known type indicating that traffic must give way to a train. [60] This sign did not have the words "Give Way" written on it, but as I have already said the significance of the red triangular sign is well known. [89] The Master found that Mr Wade could have seen the markings and sign from about 170 metres south of the level crossing. [60] That means that he would have been able to see the markings and sign as he came out of the bend and began to travel along the straight section of roadway, about 180 metres in length, leading up to the level crossing.

From this point the Master found that Mr Wade could also have seen the level crossing. [60] At the level crossing was another well known sign, comprising two crossed boards with the words "Railway Crossing" written upon them. Immediately underneath the cross was a triangular red sign indicating to northbound traffic that it must give way to a train. This sign also did not have the words "Give Way" on it. [89]

The Master found that Mr Wade disregarded the advisory speed sign and rode through the bend at 90 kph. [93] He found that Mr Wade must have seen the sign and road markings at the 80 metre mark, and the signs at the level crossing, as he cleared the bend and was about 170 metres from the level crossing.

The Master rejected a submission that the advance warning sign should have been placed further from the level crossing than it was. [92] He found that even if the advance warning sign had been further from the level crossing, Mr Wade would have ignored it. [95] That finding seems to me to be obviously correct.

But the Master found that there should have been a stop sign at the level crossing. [89]

The Master did not find helpful expert evidence about the applicable standards for road signs. A lot of this evidence was related to the speed below which 85 per cent of the vehicles using the road were observed to travel. This was what he called the 85th percentile speed. The Master found that the evidence about this was not sufficiently reliable to warrant him making a finding as to the 85th percentile speed for this part of Airport Road. [88] Once again, it is convenient to record here that I can find no basis for disturbing that conclusion.

The finding that the Master then made about the adequacy of the signs at the level crossing was as follows:

"There was a bend in the railway track to the north-west of the intersection. There was a bend in the road to the south of the level crossing. The view of the motorist coming from the south was obscured to the north-west by vegetation to a point approximately 50-60 metres south of the level crossing. The usual speed of the locomotive in approaching and entering the level crossing was in excess of 60 kilometres per hour. It is not clear what the speed limit on the Airport Road was but it was no less than 100 kilometres per hour. Although the crossing was infrequently used by the first defendant, there was a considerable amount of vehicular traffic which used the Airport Road. There had been a number of close calls at that particular intersection. The defendants should have considered all these factors and, had they done so, they should then have taken steps to install a stop sign at the level crossing. To that extent I think the defendants were negligent and that their negligence contributed to the happening of the collision."

That finding is not based on any expert evidence, or on evidence about the application of established standards controlling the choice of traffic control devices to be used at the level crossing.

The Master also apparently accepted evidence from Mr Wade to the effect that "had there been a stop sign installed at the crossing, he would more than likely have stopped or at least slowed down to put himself in a position to stop at the crossing." The Master recognised that this evidence had limited weight, because it arose from hindsight, but said "I think nevertheless it has some substance." [87] He made the point that it was one thing for a road sign to warn a motorist that he must give way to a train that might be passing, but another thing to require a motorist to stop come what may. In the case of a stop sign, there was less likelihood of a motorist taking the chance that a train is not approaching the level crossing.

On appeal Mr Greenwell submitted that the signposting of the road and at the level crossing complied with the applicable standard which is Australian Standard 1742.7 - 1987, Part 7 - Railway Crossings ("the AS"). Mr Greenwell submitted that as the traffic control devices conformed with that standard, the finding that a stop sign should have been placed at the level crossing could not stand.

The Master made no detailed findings about the application of the AS. I have not found it easy to assess this submission by Mr Greenwell. However, it appears to me that the AS, which was an exhibit at trial, contains detailed specifications as to the traffic control devices that may be used at and in advance of railway crossings, and detailed specifications as to the size, appearance, placement and so on of these devices. But the AS does not purport to govern the choice of traffic control device for a given location. Paragraph 9.1 of the AS states:

"The types of control used will depend upon the requirements of individual locations taking into account safety, traffic volume, geometric and other considerations. Five basic types of control are described in terms of the devices to be used at the crossing. The devices used for advanced warning in each case are also given."

In other words, the AS, in the interests of uniformity, determines what signs may be used, their appearance, their placement and arrangement, and matters like that. It does not purport to govern the choice of devices for a given location.

As best I can tell the devices referred to by the Master did comply with the AS, and with Figure 3 in particular, which illustrates devices that may be used "at railway level crossings not requiring stop controls". But Mr Greenwell's submission that, if that is so, the Master's finding cannot stand, misses the point. The issue is not whether the devices in use complied with the AS. The issue is whether the location required other devices, taking into account the matters referred to in par 9.1 of the AS.

The 85th percentile speed, much relied upon by Mr Greenwell, is only relevant, as I understand the AS, to the distance between the level crossing and the location of advance warning signs. On the Master's findings, that is not an important matter. It is not directly relevant to the choice of traffic control devices to be used at a given location. Certainly, I could find nothing in the AS that gave it that status. While the likely approach speed of vehicles is no doubt relevant to the choice of traffic control devices, the approach speed does not appear to me to have the significance for the purposes of the AS that Mr Greenwell's submissions attributed to it.

In the end, par 9.1 of the AS poses, adequately enough, an important aspect of the question of fact that the Master had to decide. Of course, the Master had to decide what was required in the exercise of reasonable care by a road authority with responsibility for the level crossing, not just what the standard meant. But in considering what was required to discharge a duty to take reasonable care, the matters referred to in par 9.1 are obviously relevant, although there are some other relevant considerations as well. The Court is not concerned solely with the interpretation of the AS. In deciding whether reasonable care was taken, it must consider the matter more widely.

In my opinion the attack made upon the Master's conclusion, relying upon the AS, was misconceived.

The submissions on appeal did not identify any evidence of established and recognised standards, apart from the AS, that determined the selection of the appropriate traffic control devices for the level crossing. Presumably, as the AS implies, it is a matter of judgment, and presumably that judgment is usually made by qualified traffic engineers.

No party led evidence, as far as I can tell, from a qualified traffic engineer, about the choice of appropriate traffic control devices for the level crossing (as distinct from about the compliance of the signs actually used, in their design and location, with the AS.) Exhibit 1D61 appears to set out standards for the use of stop signs at level crossings. This document is dated 27 February 1984, and emanates from Australian National Railways. The Master makes no reference to it. It was not explored with the witnesses. I put it to one side.

The Master's finding that a stop sign should have been installed is a finding that, exercising reasonable care, an authority responsible for the placement of traffic control devices at the level crossing, would have made that decision. His conclusion is, judging by the portion of his reasons that I have set out above, based upon the presence of the curve in the roadway, the presence of vegetation obscuring a road user's view to the left in the direction of the railway line in particular, the likely speed of travel (the speed limit on this road was 100 kph or higher [89] ), the relatively late point at which the vegetation ceased to obscure vision towards the railway line, the volume of traffic using Airport Road, and the finding that there had previously been near misses at this level crossing.

They are all relevant matters. In my opinion they were all appropriately relied upon by the Master.

It seems to me that the point thrown up by the Master's findings is that it was reasonably foreseeable, under the circumstances, that an approaching road user, although aware of the presence of the level crossing, might realise relatively late in the piece that a train was approaching the level crossing from the left. That being so, the Master concluded that a stop sign was required to cause an approaching driver to slow down with a view to stopping, or to stop. The effect of the give way signs was that if there was no train approaching, the road user was entitled to proceed. That brought with it the risk that a road user, who because of the road configuration and vegetation had not seen an approaching train, might take the chance that there was no train on the line. It is also relevant to mention that the cost of stop signs, compared with the cost of give way signs, is not a significant factor.

The decision that the Master had to make was not an easy one. It is one on which minds could legitimately differ. The absence of expert evidence indicating a basis upon which the decision should have been made left it open to the Master to make a practical judgment. I am not satisfied that the Master erred. I can find no particular flaw in his reasoning.

One of the matters upon which the Master relied was a finding that there had been a number of near misses at this level crossing. The finding by the Master was that "persons within the management structure were aware that this particular crossing was dangerous." [85] The reference there is to persons within the management structure of Steamranger. This finding was challenged by Mr Besanko QC, counsel for Steamranger. There was evidence from several witnesses that there had been near misses at this level crossing, and there was no serious challenge to that finding. Mr Besanko did, however, challenge the finding that knowledge about these near misses was held within the management structure of Steamranger. The Master's findings are in general terms, and do not indicate the persons to whom he refers. I have looked at the evidence on the point. The evidence is rather general, and not particularly clear. However, there is supporting evidence there, the finding was open, and I am not persuaded that this Court should interfere. Once again, there is no particular reason to reject the Master's conclusion. I will come later to the issue of the knowledge of the Council.

It is convenient to deal here with the finding that Mr Wade would have stopped if a stop sign had been placed at the level crossing. This finding was challenged by both defendants. The evidence of Mr Wade to this effect was not strong. For example, in answer to a general question about obeying road rules, he said "I obeyed the rules most of the time. I would always stop for stop signs..." [T78] It is no criticism of Mr Wade that his evidence on the point was not strong. He had no memory of the collision. For obvious reasons it is difficult to answer such a general question. Nevertheless, this was a matter on which a finding had to be made. The Master was entitled to use his own experience of the behaviour of road users. Mr Greenwell seemed to argue that as Mr Wade had no memory of the collision, the Master could not make a finding about whether Mr Wade observed the road signs, or about what he would have done had a stop sign been there. I reject that submission. Mr Greenwell and Mr Besanko also argued that in light of Mr Wade's conduct that day (that is his speed around the bend, his apparent disregard of the signs that were there) the finding was wrong. This submission requires more careful consideration.

The evidence is capable of supporting the submission by the defendants that Mr Wade did not see the signs warning of the level crossing, and would not have seen a stop sign had there been one at the level crossing, or an advance warning of a stop sign. But the evidence is equally capable of supporting the conclusion that Mr Wade saw the signs that were there, but did not respond to them. The evidence is not conclusive either way. For what it is worth, it seems to me more likely that the Master was correct, and that Mr Wade observed the level crossing, at least soon after he had rounded the final bend. He could hardly fail to see it, because it was straight ahead of him on the road after he rounded the bend. In my opinion the Master's finding that Mr Wade did observe the signs, and the presence of the level crossing, cannot be challenged.

I turn now to the finding that Mr Wade would have stopped, or at least slowed substantially, had there been a stop sign at the level crossing. Would Mr Wade have ignored the stop sign, as he ignored the give way signs? Once again, the finding made by the Master is open on the evidence. In part it depends upon the Master's assessment of Mr Wade. In part it depends upon the fact that motorists do tend to obey stop signs. I believe that that is fairly common knowledge. In part the finding turns upon a conclusion from Mr Wade's behaviour on the day in question. His behaviour is consistent with the conclusion that he saw the level crossing and saw the signs, but because he was not obliged to stop took the chance that there was no train there, and did not slow down until it was too late. Those findings left it open to the Master to conclude that had the sign at the level crossing been a stop sign, Mr Wade would have stopped or at least slowed down much sooner. I would not interfere with the finding.

As operator of the train, Steamranger owed a duty of care to operate it taking reasonable care for the safety of persons using level crossings. The Master considered whether Steamranger had failed to discharge that duty.

It is not necessary to refer to each matter dealt with by him. Most of his conclusions were not challenged. I refer only to the more significant conclusions.

The Master found that the fireman's lookout was adequate. [64] He found that the fireman gave adequate warning (by whistle) of the train's approach. [67]

He found that the train was not being driven at an excessive speed. This finding requires some closer consideration.

The train was an occasional tourist train. The line was not used regularly, tourist trains being the only users of the line. The train was not running to a schedule that required it to maintain its speed of about 64 kph. The driver had authority to slow the train if he saw fit. Slowing it at the approach to the level crossing would have made little difference to the time of arrival at the destination. In short, the train driver could have approached the level crossing more slowly had he thought it desirable to do so. The Master also took into consideration his finding that the fireman was aware of several near misses at the level crossing. Presumably he also took into account the fact that the management of Steamranger was or should have been aware of the traffic control devices in use and, in a general way, of the configuration of Airport Road and of the presence of foliage.

As the Master rightly said, it was not enough for the plaintiff to say that if the train had approached the level crossing more slowly, the plaintiff might have passed safely in front of it. Nor was it reasonable to require Steamranger to have the train operated at a speed such that it could have stopped before the level crossing, should the likelihood of a collision become apparent. Trains take a long time to stop. This one took about 300 metres to stop after the collision. Each of the general propositions advanced by the plaintiff and just referred to, leads to the conclusion that the train should have approached the level crossing at a very low speed, in case a road user arriving on the scene, however late, failed to slow down or stop as was required. It would not be reasonable to require a train to be operated at a speed such that, should an emergency arise, it could always stop or slow sufficiently to avoid a collision.

The plaintiff had to show that in all the circumstances the exercise of reasonable care of the part of Steamranger required that the train approach the level crossing as a matter of normal practice at a lesser speed than the speed at which it was travelling, and that had that happened, the collision probably would not have occurred. Another way of putting it is that the plaintiff had to show that by reference to some established and identified standard, the speed of the train was excessive.

It was not enough to say that, if the train had been travelling more slowly, the train would not have collided with the plaintiff. That proposition would apply, for example, to many cases of collisions between motor cars, or between a motor car and a pedestrian. But the issue is whether the speed at which the motorist in question was travelling was excessive in the circumstances, not whether a lesser speed would have resulted in there being no collision.

The Master decided the issue before him on the quite narrow basis that there was no basis for a finding that the train's speed should have been less than it was. [72] He said:

"However, the plaintiff's case on excessive speed can only be as good as the evidence he adduces as to what the appropriate speed would have been. On the evidence before me I am able to make no finding as to what an appropriate speed was. There is nothing in the evidence which indicates to me that the speed actually observed by the train driver prior to the collision was other than the appropriate speed for that intersection."

When dealing with motor vehicle accidents, Judges often make findings that a certain speed was excessive in the circumstances. In doing so they draw on their own experience as motorists and as road users, and on well known speed limits applicable to various situations. As well, the courts have heard so many cases involving motor vehicle accidents that Judges have considerable experience and a limited expertise in assessing appropriate speeds for motor vehicles. For those reasons, expert evidence or proof of established standards by which to assess speed is not usually necessary.

The situation is quite different in assessing the reasonableness of the speed of a train. That is not to say that the issue that the Master had to decide was anything other than an issue of fact. Nor do I say that it could not be decided without expert evidence. But absent any expert evidence, or evidence from an experienced operator indicating a basis for the finding that the plaintiff needed to obtain to succeed, or evidence of some standard against which to assess the appropriateness of the train's speed, the Master had to make his own assessment as a matter of common sense. That is what he did.

Like the Master, I find it difficult to identify any basis for saying that the speed of 64 kph was excessive, making due allowance for all the circumstances. The train was travelling at a speed which is not, after all, particularly fast. To be able to have stopped before reaching the level crossing, once the fireman or the driver was aware of the risk of a collision, the train would have to have been travelling very slowly. There was evidence [T524] that at 10 kph the stopping distance of the train (including reaction time) was 21 metres; at 20 kph it was 60 metres; at 40 kph it was 190 metres, and at 60 kph it was 350 metres. The same witness said [T525] that if the train was travelling at 40 kph, its stopping distance being 190 metres, when it was 190 metres from the level crossing the motor cyclist would then have been 580 metres from the level crossing, assuming a constant speed of 70 kph from that point to the level crossing. I am not sure if this is correct. I use this evidence only to make the point that if one accepts that there was no indication of danger until the motor cycle was relatively close (within about 100 metres of the level crossing), the train could not have stopped before reaching the level crossing unless it had been travelling very slowly indeed.

The Master did not make a finding as to just when the fireman should have appreciated that there was a risk of a collision. But the findings made indicate that the risk was not apparent, at the earliest, until Mr Wade rounded the bend, and by then the train was no more than about 100 metres from the level crossing. It could have stopped within that distance only if its speed was as low as about 27 kph.

In the end I do not rest my conclusion on issues of causation. I find no flaw in the Master's approach that, exercising a common sense judgment, the speed of the train was reasonable, and nothing was pointed to to establish a basis for concluding that, exercising reasonable care, the speed should have been less.

The Master found that the foliage within the railway corridor played no part in the collision. [80] The question of the obligation of either defendant to clear foliage in the railway corridor can be put to one side.

In the end each alleged breach of a duty owed exclusively by Steamranger was rejected.

That left the submission that Steamranger was in breach of a duty of care in relation to traffic control devices, a duty in that respect also being alleged to be owed by the Council. I will deal with that later.

I have summarised the Master's findings about the state of the foliage, and about its effect on Mr Wade's ability to see the approaching train. I have explained why I would not interfere with those findings.

On the basis of those findings the Master found that the Council was negligent. [96] He said:

"The pictorial evidence as to the extent of the vegetation on the day of the accident leaves me with no doubt that the view of a motorist approaching the level crossing from the south was severely restricted by the presence of vegetation on the western side of the road to a point 50 to 60 metres south of the level crossing. Leaving that vegetation in place is almost an invitation for an accident to occur based on the inability of the motorist to detect the presence of a train in the rail corridor. It is but one of a number of factors which when combined, produced, for the plaintiff, the collision which occurred. It is, nevertheless, an important factor and as such the presence of the roadside vegetation was a material cause of the subsequent accident. In my view, the vegetation should have been cleared back to at least 80 metres and preferably a greater distance and the failure to clear the vegetation constitutes negligence on the part of the second defendant for which it is liable in damages unless an immunity from liability applies."

The Master then dealt with an argument that the Council owed no duty of care to road users requiring it to clear roadside vegetation. The Council argued that the well-known immunity of highway authorities from liability for accidents caused by their failure to maintain a highway in proper repair extends to a liability founded upon a failure to clear roadside vegetation which obstructs a road user's view. (I refer to an immunity as a convenient shorthand because that term is often used in this context, recognising that the term is inaccurate and capable of causing confusion.)

The Master did not find it necessary to consider whether that immunity has survived the recent High Court decisions dealing with the imposition of a common law duty of care in relation to the exercise of statutory powers, nor did the Master consider whether the immunity, which for convenience I will refer to as the non-feasance immunity, embraces a failure to clear vegetation that presents a danger to road users because it obstructs their view of other traffic. The Master held that any relevant common law immunity from liability in respect of non-feasance had been abrogated by Pt 1B of the Wrongs Act 1936 or by s 17E(1) in particular.

In making his finding of negligence on the part of the Council, the Master made no specific reference to a number of matters that might be thought to be relevant in considering whether the Council was in breach of its duty of care. I refer here to matters such as the number of roads for which the Council is responsible, the cost of maintaining a roadside vegetation clearance programme that would have achieved the desired results, and whether the Council had adopted and maintained an appropriate programme of vegetation clearance. The fact that vegetation at a given place obstructs the view of a road user and should be cut back does not necessarily establish that the Council was in breach of its duty of care. If it took reasonable steps to maintain an adequate vegetation clearance programme, it might have discharged its duty of care even though, before it got to Airport Road, the vegetation had grown to an extent that required clearance in the interests of road users.

I have read the evidence before the Master. There was some brief evidence about the roads for which the Council was responsible (200km sealed and 200km unsealed) [T1407]. Another witness said, in cross examination, that the Council relied upon councillors and Council staff to identify and report matters affecting road safety, and that the Council had no established policies governing this [T1458]. In short, the Council made no attempt to show that it had adopted appropriate procedures to maintain roadside vegetation in a state that did not cause danger for road users.

In light of the submissions presented on appeal, the following issues fall for consideration. Is the non-feasance immunity abrogated by the Wrongs Act? If not, is it applicable to the present case and does it preclude the finding of a relevant duty of care? If the non-feasance rule has been abrogated, was the Council under a common law duty of care that required it to take reasonable steps to clear roadside vegetation that obstructed views of other traffic? Was the Council in breach of any such duty? I will have to deal with each of those questions.

I turn now to the question of traffic control devices.

I have summarised the Master's findings on this topic, and set out his conclusion that Steamranger and the Council were negligent in failing to take steps to install a stop sign. I have explained why I would not interfere with his conclusions of fact on this point.

The submissions for the Council did not challenge the assumption by the Master that the Council owed a common law duty of care to road users in the exercise of its statutory powers in relation to traffic control devices. The Master's reasons appear to assume that the Council owed a duty to take reasonable care in deciding upon the appropriate traffic control devices for this level crossing, and in deciding upon their location. The case seems to have been conducted before the Master, and was conducted before this Court, on the basis that the Council did owe a relevant duty of care to road users, and that the real issue was whether there was a breach of that duty.

I assume that the Council had authority, pursuant to s 11 or s 17 of the Road Traffic Act 1961, to install traffic control devices at the level crossing. I also assume that the Council had authority to install devices of the type considered by the Master in this case, if it saw fit. It was not submitted to this Court that anything in the Local Government Act or the Road Traffic Act was inconsistent with the imposition upon the Council of a common law duty of care in relation to the selection and placement of traffic control devices at the level crossing. Nor was it submitted that a duty of care could not exist for any other reason. As the case was fought on the basis that a duty of care was owed, I propose to proceed on that basis without deciding that point.

As there was no challenge to the assumption that the Council owed a duty of care, and as I am satisfied that the Master's conclusion that the Council was in breach of its duty should stand, it follows that the challenge to the finding of liability on the part of the Council on this point must fail.

I should add that in his written submissions Mr Greenwell submitted that responsibility for the traffic control devices at the level crossing rested with Steamranger. Nothing was advanced in support of that submission. It was not submitted, for example, that Steamranger also had authority to erect such devices at the level crossing, let alone exclusive authority. There is no evidence to support the submission. Accordingly, I reject this submission.

In the passage that I set out earlier the Master also found that Steamranger was negligent because it had not taken steps to install a stop sign. He dealt in the same way with Steamranger and with the Council. But Steamranger did not have the care and management of Airport Road, and did not have authority to place traffic control devices on Airport Road. All of the relevant evidence is to the effect that it maintained road signs at level crossings, but had no control over their selection or choice. The Master does not explain how he reached the conclusion that Steamranger owed the duty of care which he found it had breached. The attack by Steamranger on this aspect of the Master's decision raises the issue of whether Steamranger owed any duty of care in relation to road users which required it to install, or to attempt to have installed, a stop sign. There is the further issue of the scope of any duty owed by Steamranger, and in light of the scope of the duty, whether Steamranger was in breach of it. It is important to bear in mind that there is no finding by the Master that Steamranger had a statutory responsibility for the placement of traffic control devices at level crossings, or any other kind of legal responsibility.

It is now necessary to deal with each of the issues that I have just identified.

The impact of the Wrongs Act

It will be necessary in due course to identify more precisely the scope of what I have called the non-feasance immunity. For present purposes it suffices to say that it is a principle that a person with statutory powers to construct roadways, and the power and responsibility to maintain roadways, does not owe a duty of care to road users to maintain a roadway, once constructed, in a safe condition. This is a principle of long-standing.

At first sight, Pt 1B of the Wrongs Act appears to have little to do with the topic. Part 1B deals with the liability of occupiers of premises, an area of the law of tort which had become notable for a number of subtle and unsatisfactory distinctions. Part 1B, enacted in 1987, is intended to do away with all these distinctions. In the words of s 17C(1):

"Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence."

In other words, the purpose of Pt 1B is to place the law governing the liability in tort of occupiers of premises within the general law of negligence, and to do away with the particular principles of law which had been developed to govern the tortious liability of the occupiers of premises for injury attributable to the state or condition of the premises. The question is whether, in doing so, Parliament has also provided that the liability of a highway authority, to the extent that it is an occupier of premises, is likewise to be determined in accordance with the principles of the law of negligence, thus eliminating or negating any immunity from liability attributable to the non-feasance immunity.

"'occupier' of premises means a person in occupation or control of the premises, and includes a landlord;"

(b) a building or structure (including a moveable building or structure); or

I have already set out the words of s17C(1). Section 17C(2) determines the matters to be taken into account in determining the standard of care to be exercised by an occupier. These are all matters of the kind one would expect to be relevant under the law of negligence, and it is not necessary to set them out. I should mention that the liability of occupiers is not left to be determined wholly under the law of negligence. For example, specific provision is made with reference to trespassers, by s 17C(6). Finally, s 17E(1) provides as follows:

"Subject to subsection (2), this Part operates to the exclusion of any other principles on which liability for injury, damage or loss attributable to the state or condition of premises would, but for this Part, be determined in tort."

Do these provisions exclude the non-feasance immunity? It is convenient to describe the immunity a little more precisely. In Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259 at 283 Dixon J stated the principle as follows:

"But while a road authority owes to the members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong."

The principle is said by Fleming, The Law of Torts (LBC Information Services 1998 9th Ed) p484 to "shield road authorities from liability for accidents caused by their failure to maintain highways in proper repair". He goes on to say:

"This immunity ... negates both a general duty to repair (sounding in nuisance) and any specific obligation to exercise care in control and management even with respect to known dangers (negligence). It is, moreover, reinforced by the judicial construction that even a statutory duty to repair does not subject the road authority to liability, unless the legislature has clearly conveyed a contrary intent either expressly or by necessary implication." (footnotes omitted)

It is true, as the Master said, that the Council can be regarded as the occupier of Airport Road. Section 306 of the Local Government Act 1934 vests the fee simple of Airport Road in the Council, and places the road "under the care, control and management of the Council ... ". I assume for present purposes that the road verge on which the vegetation was growing is part of the road.

The Council, as owner and with responsibility for the care, control and management of the road, can be regarded as falling within the definition of "occupier" in s 17B. It can be so regarded, because of the control that it has over the state of the road surface, even though the public has a right of access to the highway, and a right to use the surface of the highway, for a variety of purposes: see DPP v Jones [1999] UKHL 5; [1999] 2 All ER 257.

But as Dixon J pointed out in Buckle, the liability of the Council as a highway authority does not flow from its status as owner of the soil or as occupier of the roadway. A little earlier in Buckle Dixon J said (280):

"... The duty of a road authority towards individual members of the public exercising the common right of passage over the highway has no similarity or even analogy to the duty or duties of occupiers of property to safeguard those who lawfully come upon the premises they occupy from dangers arising from their character or condition. The principles upon which the road authority's liability, or absence of liability, depends have nothing to do with the ownership or occupation of property or the relation between an owner or occupier and persons whose presence he may solicit or suffer."

"The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property."

The principles of occupier's liability have not been applied generally to highway authorities to determine their liability to road users for dangers attributable to the state of the road. The liability of highway authorities has not been analysed or determined in that way.

It is clear that Pt 1B of the Wrongs Act was enacted to reform the law referred to as the law of occupier's liability. As it happens, the principles displaced by Pt 1B of the Wrongs Act were in fact swept away by the High Court in Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479 just nine days before the introduction of the Bill that inserted Pt 1B into the Wrongs Act. The Second Reading speech on that Bill makes it quite clear that the whole purpose of the Bill was to do away with the outmoded categories by reference to which the liability of occupiers had been determined.

In my opinion there are several reasons for concluding, contrary to the Master's conclusion, that Pt 1B of the Wrongs Act does not do away with the non-feasance immunity.

The first is that although literally read, the definition of occupier embraces the Council, it should not be so read. It is arguable that it should not be so read because for the purposes of the law of occupier's liability, a highway authority was not treated as an occupier of a highway, absent some special circumstances. The relevant body of law simply did not apply. But it may be that the terms of the definition of occupier are too clear for this reasoning to apply.

A second, and preferable approach, is that even if the principles of the law of negligence are applied to the Council, in accordance with s 17C(1), those principles include the principle identified by Dixon J, the effect of which is that a highway authority with ownership of a highway and responsible for its care, management and control, does not by virtue of that ownership and those powers, attract a common law duty of care to maintain the highway in a safe condition. That is, the non-feasance immunity is part of the principles of the law of negligence invoked by s 17C(1). At most, Pt 1B does away with the principles of occupier's liability, but does not in other respects alter "the principles of the law of negligence", by reference to which one determines whether the Council owes a duty of care. Likewise, s 17E excludes "any other principles" by which liability might be determined in tort. The principles that are excluded are principles other than principles of the law of negligence. It was the application of the law of negligence in Buckle that led to the conclusion that a duty of care was not owed.

For those reasons Pt 1B of the Wrongs Act can be put to one side.

Did the Council owe a duty of care requiring it to remove vegetation?

The Master's reasons proceed on the basis that once the non-feasance immunity is displaced, it follows that a relevant duty of care was owed by the Council. The duty of care which the Master had in mind must have been a duty of care owed to Mr Wade and to other road users, which required the Council to take reasonable measures to ensure that vegetation did not obscure the vision of road users in such a way as to be a source of danger.

I suspect, having regard to the way in which the Council's case was conducted, that the assumption reflects the conduct of the Council's case. However, at least on appeal, that assumption was challenged, although without any detailed submissions in support.

It remains to be decided whether, recognising that the Council was the owner of Airport Road, and responsible for its care, management and control, there arose a common law duty of care of the type identified by me. Putting it a little differently, did the Council owe a common law duty of care to exercise its powers of management and control, and any other available statutory powers, to clear the vegetation in question? The answer to that question requires a consideration of the fact that the exercise of statutory powers is in issue, and the fact that the Council is a public authority vested with a wide range of statutory powers to be exercised in the public interest, and taking into account the resources available to it.

This is an area of the law that has received detailed attention from the High Court in recent times, culminating in the decision in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 74 ALJR 1. Three particular issues arise.

The first is whether, in considering the issue identified by me, a highway authority is still in a special position, in the sense identified by Dixon J in Buckle at 283. Have more recent cases established an approach to the imposition of a duty of care on a body with relevant statutory powers, that requires a re-consideration of the position of highway authorities, and leaves it open to the court to impose a common law duty of care even though Buckle would dictate otherwise? That is, has the non-feasance immunity in relation to highway authorities been overtaken by more recent High Court decisions?

A second issue is whether the principle stated in Buckle in any event applies to the present case. Is that principle limited to determining whether or not a duty of care exists in respect of the carriageway itself? Does the principle stated in Buckle extend to vegetation on the verge of a highway?

The third issue is whether, if Buckle is to be regarded as implicitly displaced by later authority, a duty of care should in fact be imposed in this case.

It is necessary to now to deal with each of those issues.

The High Court in Buckle considered that it was by then firmly established that a highway authority could not be held liable for damage arising from a failure to exercise its powers of maintenance or repair with respect to a highway or roadway. See for example Dixon J at 281:

"It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinguished from a discretionary, duty of repair and to confer a correlative private right ..."

Although easy to state, the precise scope and practical limits of the immunity are not clear. It was emphasised in Buckle and later Gorringe v The Transport Commission [1950] HCA 6; (1950) 80 CLR 357 that the rule applies only to highway authorities, even in circumstances where the relevant power held by some other authority may be exercised with respect to a road or structure connected with a road. For example, drainage authorities with powers to make and repair drains or culverts in connection with a road are not within the immunity. The issue becomes still more difficult where a single body holds statutory powers in more than one capacity. Equally difficult questions have arisen when considering what physical area is covered by the immunity, for example whether the immunity extends only to the road surface or is wider than this. It will be necessary to return to this issue later. For present purposes I put to one side these and other difficulties that arise in identifying the precise content and scope of the rule.

Mr Walsh QC for the appellant Wade, argued that the non-feasance immunity in relation to highway authorities has been implicitly rejected by the High Court in decisions such as Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 and Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330.

Prior to the decision in Heyman a general distinction was drawn between positive acts of negligence in the exercise of statutory powers and the negligent failure to exercise statutory powers. A duty of care was capable of arising in relation to the former but not the latter. This general distinction might be thought to have much the same effect as the non-feasance immunity for highway authorities, although the importance attached in many of the non-feasance cases to a determination of the capacity in which statutory powers are held would seem to throw doubt on this assumption.

All members of the Court in Heyman recognised that a statutory authority may be liable for failure to exercise a power provided the requisite degree of proximity exists between the complainant and the authority. While the circumstances in which a duty of care may arise have since been elaborated by the High Court, the general proposition remains sound: see Pyrenees and Crimmins. In deciding that a duty of care may arise in circumstances where a statutory authority has failed to exercise a relevant power, all members of the Court in Heyman noted the traditional distinction drawn between positive acts, or misfeasance, on the one hand and omissions, or non-feasance, on the other. They stated that while the distinction remained a fundamental one, particularly in assessing proximity, it did not necessarily preclude the existence of a duty of care. Rather, that question was to be approached by reference to ordinary principles of negligence. As Deane J said in Heyman at 501:

"[T]he clear trend of authority has been to accept the principles of common law negligence enunciated in cases such as Donoghue v Stevenson as being of general application ... In my view, that trend should continue to be accepted in this Court and those principles should be recognized as governing liability in negligence for omissions as well as for acts of commission."

Mr Walsh acknowledged that while the Court spoke generally in terms of misfeasance and non-feasance neither Heyman nor subsequent cases dealt directly with the non-feasance immunity as it relates specifically to highway authorities. He submitted, however, that a failure to exercise powers for the maintenance or repair of highways can hardly be distinguished from a failure to exercise other statutory powers. As such, he argued that the High Court should be taken to have impliedly disapproved the non-feasance immunity in respect of highway authorities and that this Court does not, therefore, need to apply that immunity.

I am unable to agree with that submission. I adopt the view expressed by the New South Wales Court of Appeal in Threadgate v Tamworth City Council [1999] NSWCA 32 (24 February 1999) that the decisions of the High Court in Buckle and Gorringe preclude this Court from departing from the established non-feasance immunity in relation to highway authorities. That same position was also taken in Hill v Commissioner for Main Roads (NSW) (1989) 9 MVR 45 at 49. In so concluding I refer to the remarks of Gaudron, McHugh, Gummow and Hayne JJ in Garcia v National Australia Bank [1998] HCA 48; (1998) 194 CLR 395 at 403 that:

"It should be emphasised that it is for this Court alone to determine whether one of its previous decisions is to be departed from or overruled."

It is not the role of this Court to determine whether well-established doctrine has been overtaken by subsequent High Court decisions in the absence of an express indication to that effect.

The liability of highway authorities has long been treated as a special case. The liability of such authorities has not been approached as an application of the general distinction between positive acts and omissions, but as the application of a special rule arising from the interpretation of legislation conferring powers in respect of the maintenance and repair of roads. In those circumstances, it is not sufficiently clear that the remarks of the High Court in Heyman, and the cases that have followed, were intended to displace the highway non-feasance immunity.

Nevertheless I acknowledge the force in Mr Walsh's submission that it is difficult to justify the continued retention of a special rule in respect of highway authorities. The rule has been criticised as lacking a sound basis in policy and as being uncertain and artificial in its application. In England the immunity of highway authorities originated in the recognition that the financial resources of local communities were inadequate for the proper execution of their functions and that such authorities could not cope with claims for damages. This justification has been frequently criticised by commentators. Fleming, The Law of Torts (LBC Information Services 1998 9th Ed) notes at 485:

"This rationale has lost much of its force since central governments have, in the main, assumed financial responsibility for road construction and maintenance; and the inadequacy of revenues provides, in any event, but a paltry justification for denying redress to a victim of negligence merely in order to spare the community at large from a slightly higher impost of rates or taxes. This incongruous doctrine, long discarded in most parts of Canada, finally met its legislative doom in England in 1961." (footnotes omitted)

In any event that rationale has not, at least explicitly, been relied upon in Australia as a basis for the acceptance of the rule. All members of the Court in Buckle viewed the rule as arising as a matter of statutory interpretation, Latham CJ asserting at 269 that "statutes conferring a power, but not imposing a duty, to repair roads are interpreted as not creating any liability for non-feasance": see also Dixon J at 281 and McTiernan J at 297. No explanation for adopting that interpretation was given nor for taking a different approach to that adopted in respect of other statutory powers.

The second major criticism that is made of the rule is that it is difficult to apply and relies upon fine distinctions that have little or no sound basis in policy. The "artificial structure" and "source of authority" exceptions are two examples. Such distinctions are frequently difficult to draw and apt to produce results that appear artificial or arbitrary.

In light of those criticisms it may be preferable to approach the question of whether a duty of care is owed by a highway authority in accordance with the analysis adopted by the High Court in Crimmins. In so saying it is important to emphasise that such an analysis would not necessarily lead to a conclusion that a duty of care exists. The distinction between positive acts and omissions remains important, and the High Court has been careful to limit the imposition of a duty of care by reference to concepts other than reasonable foreseeability alone.

Nor would the application of Crimmins impose unrealistic burdens upon highway authorities. The approach in Crimmins provides scope for due consideration to be given to the resources at the disposal of the authority, the number of roads under its control, any competing demands on the authority's resources and the ability of the complainant to themselves alleviate the risk complained of:

"To say there is nothing to preclude the existence of a common law duty of care ... is, however, not to say anything as to the content of that duty. ... A public body or statutory authority only has those powers that are conferred upon it. And it only has the resources with which it is provided. If the common law imposes a duty of care on a statutory authority in relation to the exercise or non-exercise of its powers or functions, it only imposes a duty to take those steps that a reasonable authority with the same powers and resources would have taken in the circumstances in question." Gaudron J at [33] - [34].

Nevertheless, despite the attraction of such an approach, in the absence of legislative intervention or express High Court authority to the contrary, this Court must proceed on the basis that the non-feasance immunity continues to apply to highway authorities.

I turn now to the second issue identified by me. That is, whether the non-feasance immunity extends to vegetation growing on the verge of a highway.

It is reasonably clear that the non-feasance immunity extends beyond claims based upon the state of the surface of the roadway itself, and indeed beyond claims based upon the state of that part of the roadway trafficable by vehicles. So much was explicitly recognised in Bretherton v Hornsby Shire Council [1963] SR (NSW) 334, and is implicit in the remarks of Dixon J in Buckle:

"A marked distinction exists between the position of such an authority in relation to the defective condition of a road, street, bridge, footpath, or other place over which there is a public right of passage and the position of a water, sewerage, gas and other like authority ..." at 286 (my emphasis).

The New South Wales Court of Appeal has recently confirmed that the non-feasance immunity extends to claims based on the state of any area over which there exists a public right of passage, including a nature strip between the paved footpath and the paved carriageway: Threadgate v Tamworth City Council [1999] NSWCA 32 (24 February 1999).

In my view the immunity applies to claims relating to that area of land designated as the road reserve. In the absence of evidence to the contrary the area from fence line to fence line may be assumed to have been so designated. On that basis vegetation growing on the verges of a highway, and within the fence line, is within the scope of the non-feasance immunity. There is no suggestion that the Council planted the vegetation. Limited support for this proposition is also to be found in the definition of roadway in section 5(5) of the Local Government Act:

"For the purpose of this Act the width of a street or road or any land proposed to be declared a public street or road shall be deemed to be the shortest distance from one boundary of the street or road or land to the opposite boundary."

I note also in Pyrenees McHugh J (at 368) said that absent a statutory duty:

"a highway authority owes no duty to motorists to improve the visibility on a dangerous corner, even though it is aware of the dangers created by the poor visibility ...".

For those reasons I conclude that the non-feasance immunity continues to operate in this State. I consider that authority requires a conclusion that the Council did not owe to Mr Wade a duty to take reasonable steps to clear and maintain the vegetation on Airport Road in a state that would not present a danger to road users. The plaintiff's claim for a breach of that duty therefore fails.

Conclusions on common law duty of care if Buckle does not apply

Should the High Court decide that Buckle and later cases do not require this Court to conclude that the Council owed no duty to take reasonable care to maintain roadside vegetation in a state that did not present a danger to road users, it will be necessary to consider whether such a duty is to be imposed upon the Council. The Master seems to have assumed that the only obstacle to the imposition of a duty of care was the non-feasance immunity. That assumption may well reflect the way in which the case was conducted before him. On appeal, it was submitted that the Council did not owe a duty of care to road users. However, no detailed submissions were put on the point, Mr Greenwell merely making a fairly brief reference to Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 74 ALJR 1.

The Local Government Act gave the Council power to clear roadside vegetation. Its ownership of the road, and its powers of care, control and management suffice for that purpose. But the conferral of those powers does not, of itself, give rise to a common law duty of care of the relevant kind. In deciding whether a duty of care should be imposed, I have endeavoured to follow the guidance provided by the High Court in Crimmins.

There is nothing in the provisions of the Local Government Act inconsistent with the imposition of a duty of care of the relevant kind. The powers vested in the Council are quite general. Clearly enough, those powers are conferred to enable the Council to construct highways and to maintain them. But it is not inconsistent with the conclusion that powers are conferred for that purpose, to conclude that the conferral of those powers, and the relationship between the Council and road users, may give rise to a duty of care that would be discharged by the exercise of those powers. To my mind, there is nothing inconsistent with the statutory scheme in imposing the relevant duty of care on the Council. But it is necessary to be clear that the duty of care is not imposed simply because those powers were being conferred. My initial conclusion is simply that there is nothing in the Local Government Act inconsistent with the imposition of the duty of care.

The postulated duty is a limited one. It is owed only to road users. Relevantly, it is confined to controlling growth of vegetation at the side of the highway that obstructs the passage of road users or the vision of road users in a way that causes danger to them. The powers vested in the Council are adequate to enable it to deal with that danger.

It was reasonably foreseeable that a failure by the Council to exercise its statutory powers to clear the vegetation would result in injury to Mr Wade.

No-one other than the Council has the powers necessary to protect road users, although I assume that in circumstances in which a Council was clearly failing to exercise its statutory functions a relevant Government Minister might be able to step in and exercise those powers.

The plaintiff and other road users were vulnerable, as I understand that expression to have been used by the High Court. By this I mean that road users were not in a position to protect themselves from the danger presented by the foliage. Of course, road users could drive with care, and are expected to do so. But while that might reduce or avoid the danger presented by the foliage, road users have no power to deal with the foliage itself. Road users are also vulnerable in a sense that the Council was much better placed than they were to detect the danger. Only a regular user of the road would be aware that the foliage might conceal the presence of an approaching train.

WADE v AUST RAILWAY HIST SOC T/A STEAMRANGER & ORS No. SCGRG-94-1672 [2000] SASC 233

At a glance

Court

Decision date

Source

Judgment (337 paragraphs)

WADE v AUST RAILWAY HIST SOC T/A STEAMRANGER & ORS No. SCGRG-94-1672 [2000] SASC 233 (13 July 2000)

Parties

Legislation Cited (2)

Cases Cited (13)