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

[2000] SASC 233

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.

6. 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

(c) a vehicle (including an aircraft or a ship, boat or vessel)."

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.

The risk of harm to road users in the position of the plaintiff would have been obvious to the Council, had it been aware of the state of the foliage (as found by the Master).

To impose a duty of care upon the Council is not to impose a liability with respect to policy making by the Council, except to the extent, which must be acknowledged, that the imposition of a duty of care implies an obligation by the Council to commit resources to the relevant task. Nor does the imposition of a duty of care involve the Court in assessing factors that a court is ill equipped to assess.

These are all matters that argue quite strongly for the imposition of a duty of care. There are some matters that point the other way.

The present case is not one that is analogous to a recognised category of cases in which a duty of care exists. Highway authorities are unique. In particular, even if the non-feasance immunity is disposed of, Dixon J was surely right in Buckle when he said that the position of the highway authority is not analogous to that of an occupier of property.

This is not a case in which the Council has exercised its powers so as to expose Mr Wade and other road users to a danger, or to an increased danger. The source of danger which is said to give rise to a duty of care is the result of a mere failure by the Council to exercise statutory powers available to it. In his submissions Mr Greenwell appeared to suggest that the imposition of a duty of care involved some interference with Mr Wade's freedom of action. That submission has no substance. To impose a duty of care upon the Council is not to impose a duty that requires it to control the conduct of another person.

Finally, it is necessary to bear in mind that to impose the relevant duty of care upon the Council has significant implications for highway authorities. That decision will impose demands upon their limited resources. It will expose their procedures to review in negligence cases.

Taking all these matters into account, I consider that if the High Court concludes that the non-feasance immunity no longer operates, this Court should impose a duty of care in a case like this. The duty is a duty to take reasonable care for the safety of road users in relation to the exercise by the Council of its statutory powers to clear roadside vegetation. To so conclude is, I believe, consistent with the approach taken by Gaudron J and McHugh J in Crimmins. It is not inconsistent with the approach taken by Kirby J, although my process of reasoning does not reflect his.

It then becomes necessary to consider whether the plaintiff has established that the Council failed to take those steps that a reasonable Council with the same powers and resources would have taken in the circumstances: see Crimmins at [5] Gleeson CJ, at [35] Gaudron J and at [90] and [133] McHugh J.

I have not located a finding by the Master that the Council was aware of the state of the vegetation on Airport Road at the time in question. It may be that the Master intended to find that, had the Council exercised reasonable care, it would have become aware of the state of the vegetation. The evidence on the topic is not clear. Evidence led for the Council was to the effect that until Steamranger wrote to the Council after the accident, raising the removal of vegetation on Airport Road, none of the relevant Council officers was aware of any cause for concern. Their evidence was that none of them had received any complaints about the safety of the level crossing, or any requests to take action in relation to the vegetation. A finding that the Council was in breach of its duty must rest upon a conclusion either that it was aware of the state of the foliage, or that taking reasonable care in the discharge of its duties it should have been aware of the state of the foliage.

I would expect the Council staff to use roads in the Council area from time to time, and when doing so to keep an eye out for circumstances presenting a danger to road users. The effect of the evidence of Mr Sweetman [T1458] was that this was one way in which the Council learned of problems. Another way was from complaints, and another way was as a result of elected councillors raising matters. However, the effect of his evidence [T1457] was that there were no oral or written directions given to Council staff about this. The Council seems to have assumed that its staff would do what they should.

The Council made no attempt to prove before the Master that it had a definite policy about detecting sources of danger, recording them and dealing with them, apart from reacting to complaints to it. In any event, its evidence did not establish that it had a system. The effect of the evidence is that it was very much a matter of whether someone complained to Council, or an individual Council officer observed and raised the matter.

The Council made no attempt to prove that with the resources available to it, it could do no more about vegetation clearance than it had done. No case along these lines was presented. Nor did the Council attempt to prove that it had a program of vegetation clearance to which it adhered. As I said earlier, proving that the vegetation needed to be cleared did not establish a breach of duty. The Council could not necessarily keep all road verges in a good condition all of the time. But the Council was at least under a duty to make reasonable efforts to keep roadside verges in a safe state. Indeed, as far as I could tell the Council led no evidence even to establish how often verges were inspected, if they were inspected.

The evidence is in a rather unsatisfactory state. However, I would not interfere with the Master's finding that the vegetation presented an obvious source of danger to road users. The failure of the Council to offer any real explanation for this state of affairs, and its failure to establish that it had any particular system of attending to roadside vegetation, leads me to the conclusion that the Master was right in finding, by implication, that the Council failed to take the steps that a reasonable Council with the same powers and resources would have taken in the circumstances. I do not overlook the fact that the onus lay on the plaintiff to establish a breach of duty by the Council. But in considering that issue, one is entitled to take into account the fact that it was within the power of Council to prove that it had a satisfactory method of dealing with roadside vegetation, or that it lacked resources to implement a satisfactory method, and it failed to do so.

Having reached that conclusion, it is not necessary to decide whether the Council should have been aware of the need to clear the vegetation in question. The Council is liable because it failed to take adequate measures to identify vegetation that needed clearance, and to deal in a reasonable way with the vegetation that did need clearance.

It follows that I would not disturb the Master's conclusion that the Council was liable for its failure to attend to the clearance of roadside vegetation, were it open to this Court to conclude that the Council owed a relevant duty of care to Mr Wade.

My reading of the evidence and of the transcript indicates that the case was conducted before the Master on the basis that Steamranger had no authority over the choice of traffic control devices to be placed at the level crossing, or on the approaches to the level crossing, or over their location. Steamranger accepted responsibility for the maintenance of signs at the level crossing, but no greater responsibility than that. In submissions before us no statutory provision giving Steamranger authority to control the choice of traffic control devices was identified.

The evidence also indicates that some of the management committee of Steamranger, and some of its members, had a limited understanding of the issues relevant to the choice of traffic control devices. However, none of them professed any expertise in the matter.

As operator of the train, I have no doubt that Steamranger owed a duty of care to road users. In relation to Steamranger, the issue is whether its duty of care embraced a responsibility for the choice of traffic control devices used at level crossings. Steamranger's duty of care obviously embraced things like the speed of the train, the use of the whistle to give warnings, and the presence of vegetation within the railway corridor.

Common sense suggests that as operator of the train Steamranger could not ignore the issue of traffic control devices at level crossings. At the least, its duty of care might require it to operate a train at a low speed when approaching a level crossing if Steamranger is aware that the relevant highway authority has not or will not install traffic control devices which appear reasonably appropriate to avoid the risk of a collision between road traffic and a train.

In the present case one could begin by saying that Steamranger should have realised the need for some traffic control device at the level crossing. As well, on the Master's findings the management of Steamranger were aware that there had been some near misses at the relevant level crossing. If Steamranger was to continue to operate its trains across the level crossing, at what I assume to be a normal speed, Steamranger had to be satisfied that the Council was taking appropriate measures to deal with dangers to traffic on what was a reasonably busy road.

The Master's findings against the Council, in relation to the stop sign, presumably rests on a conclusion that a reasonably competent highway authority would have recognised the need for a stop sign rather than a give way sign, and could have remedied the need at a minimal cost.

But Steamranger is not a highway authority. It does not have what I might call the primary responsibility for traffic control devices at level crossings. Granted, Steamranger must be taken to have been aware of the danger associated with the level crossing. But Steamranger also knew that the responsible authority had installed a common and well recognised traffic control device, a device found at many level crossings in rural areas. It is not possible, in my opinion, simply to equate the position of Steamranger with that of the Council. Steamranger was entitled, to some extent at least, to rely upon the Council and to defer to its judgment. The Master does not explain on what basis he concluded that Steamranger should have realised that the Council's own assessment of the appropriate traffic control device was flawed.

The most that Steamranger could have done is to draw the attention of the Council to the history of some near misses, and perhaps to the state of the roadside vegetation, and to request the Council to consider the adequacy of the existing give way sign. It is not easy to see how one concludes that Steamranger should have known, for example, that a stop sign in particular was called for, and should have insisted upon Council installing one. Nor is it obvious that if Steamranger had raised its concerns with Council, this would have caused Council to install a stop sign. Despite the evidence of apparently cordial relations between the Council and Steamranger, and evidence suggesting that the Council would act upon requests by Steamranger, one cannot assume that Steamranger would have had the knowledge required to suggest quite specifically that a stop sign be installed, nor can one assume that the Council would comply with such a request on a matter like this.

None of these issue were addressed by the Master. As I have said, he seems to have treated Steamranger and the Council as being in the same position. I have come to the conclusion that the Master erred in finding that Steamranger was, in the relevant respect, in breach of its duty of care. On the material before the Master, and accepting his findings of fact, I can see no basis for concluding that Steamranger, as distinct from the Council as highway authority, should have realised that a stop sign rather than a give way sign was called for at the level crossing. I am not satisfied that the evidence established that the duty owed by Steamranger, in the particular circumstances, went so far as to require it to appreciate that the Council's response to the situation was inadequate. For those reasons I would allow the appeal by the defendant Steamranger, and set aside the judgment entered against it.

Contributory negligence and contribution between defendants

The Master apportioned liability as to two-thirds to the Council and as to one-third to Steamranger. If the judgment against Steamranger were to stand, I would not interfere with that apportionment.

The Master assessed Mr Wade's contributory negligence at 70 per cent. A court of appeal is always slow to interfere with an assessment of contributory negligence, recognising that this is a question of fact and very much a matter of judgment: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 15-16.

The Master found that when Mr Wade rounded the bend, the warning signs and the level crossing itself were clearly visible. He had plenty of time to slow down sufficiently to enable him to stop at the level crossing, should he need to do so in the event of an emergency. The presence of the railway crossing indicated that the railway line was ahead and to his left, and there was always the possibility that a train might be approaching. The Master found that he must have taken a chance that no train was approaching. On the Master's findings, if Mr Wade had slowed down he would have had a better opportunity to look to his left. As it was, he continued to approach the level crossing at a fairly high speed, knowing that his vision to his left was obscured. On the Master's findings, Mr Wade was guilty of a serious failure to take care for his own safety. To approach a level crossing at such a speed, when one cannot see if there is an approaching train until almost the last minute, can fairly be described as reckless.

On any view, Mr Wade's conduct amounted to contributory negligence. His culpability was substantial. He departed very substantially from the standard of conduct to be expected. The Council's culpability, by comparison, was of a lesser order, although of course it created a danger for road users. While the Master's assessment is high, I do not consider it to be erroneous. It was open to him to conclude that Mr Wade's responsibility was the greater. I would not interfere.

I have had the advantage of reading in draft the reasons of Lander J. I agree that the amount awarded for loss of earning capacity in the future was too high, and that the amount awarded in respect of the cost of future care was too low. The end result is that the award of damages was about right, and for the reasons given by Lander J, I would not interfere.

Authority requires this Court to conclude that the Council did not owe a duty of care to Mr Wade relating to the state of the vegetation on Airport Road. However, the judgment against the Council should stand, because I would dismiss the appeal by the Council to the extent that it complains of the finding that it is liable to Mr Wade for its failure to place a stop sign at the level crossing. I would allow the appeal by Steamranger against the finding that it is liable to Mr Wade for failing to take steps to have a stop sign installed, set aside the judgment against Steamranger, and direct that judgment be entered for the first defendant. It follows that the order as to contribution as between the defendants should also be set aside.

I would dismiss the appeal by the plaintiff, to the extent that it complains of the finding of contributory negligence.

As to the award of damages, I would dismiss the appeals and the cross-appeal.

Accordingly I would order that the appeal by the Council be dismissed and that the appeal by Mr Wade be dismissed. I would order that the appeal by Steamranger be allowed. I would order that judgment of the Supreme Court be varied to order that Mr Wade's claim against Steamranger be dismissed, and that judgment be entered for Steamranger against Mr Wade. I would further order that the orders as to contribution between the defendants be set aside.

In the light of those orders, it will be necessary to hear the parties on the question of the orders as to the costs of the trial and as to the costs of the appeal.

DUGGAN J. I agree with the orders proposed by the Chief Justice and Lander J. I also agree with the reasons which they have given in support of their conclusions.

LANDER J. I have had the advantage of reading in draft the reasons of Doyle CJ. I agree with those reasons and the orders proposed.

I will confine my reasons to the various appeals relating to damages.

The plaintiff suffered very serious injuries. The Master assessed his damages for those personal injuries under the following headings and in the following amounts:

All three parties complain about the assessment of the plaintiff's damages. The plaintiff complains that the damages awarded under the heading "Future Care" were manifestly inadequate and that the Master did not give sufficient weight to the fact that the plaintiff has been using a wheelchair on a daily basis for a number of years and that by age 60 years he is likely to be confined to a wheelchair.

Moreover the plaintiff complained that the amount awarded for the cost of home modifications was inadequate in light of the finding that the plaintiff's present home is entirely unsuitable for a person with his disabilities and there is a real possibility that he will need to move from that home to a more practical location.

Steamranger complained of three aspects of the assessment of damages. First it asserted that the Master should not have awarded damages to the plaintiff with respect to injuries sustained to his left sacro-iliac joint following a subsequent motor vehicle accident, which occurred on 20 December 1997. Secondly it said the Trial Judge failed to reduce the plaintiff's damages to take into account costs that the plaintiff would have incurred for his own sustenance during the time he was in hospital. Thirdly it complains that the assessment of "Future Economic Loss" was excessive and against the weight of the evidence. At the hearing it abandoned the first two grounds of appeal.

The Council complains that the assessment for the plaintiff's "Future Economic Loss" was excessive and against the weight of the evidence. It also asserts that the Master erred in awarding the plaintiff damages for the effects of a subsequent injury suffered on 20 December 1997. That second matter is the same matter as the first ground of appeal abandoned by Steamranger.

The Council, unlike Steamranger, did not formally abandon that matter although no argument was addressed on that ground either in the written outline or during addresses. I think it is right to say that the complaint was not pursued. However I will deal with the matter briefly.

Apart from that matter the complaints on appeal reduce to complaints of two heads of damage:

a) the award of damages for future economic loss which the Council and Steamranger said was excessive; and

b) the award of damages for future care which the plaintiff said was inadequate.

The accident occurred on 13 October 1991 when the plaintiff was aged 39; he turned 40 on 13 November 1991.

The plaintiff was born in England and migrated to Australia in 1964 and completed his secondary schooling at Marion High School. He graduated with an Honours Degree of Bachelor of Engineering (Electrical) from the Adelaide University in 1973. He obtained a Bachelor of Science Degree (Mathematical Science) in 1976 and graduated with a Masters Degree in Business Administration in 1982.

From 1974 to 1980 he was employed with the Engineering and Water Supply Department as an electrical engineer. From 1980 to 1986 he was employed by Santos initially as a supervisory control engineer in the engineering department and then later as a systems engineer. Between 1986 and 1988 he carried out contract work in engineering.

In 1988 he commenced employment with Kinhill Engineers Pty Ltd as a senior engineer, controls. He held that position until 28 April 1999 when his employment was terminated. The termination of his employment occurred after the completion of the trial and during the time that the Master had reserved his decision. The matter was called on for the purpose of allowing the plaintiff to prove his loss of employment.

The plaintiff's employment pre-accident required him to undertake field work including visits to remote country sites where his duties required him to supervise the installation and commissioning of equipment. His employment required him to be physically fit. The plaintiff kept himself fit by attending a gymnasium three times a week, playing squash and jogging.

Between 1977 and 1978 with the assistance of others he built his own house at Aldgate, on about one acre of land, in which he still resides. The land is hilly but he constructed retaining walls and paved areas and established a garden.

He was also involved with motor vehicles and motorcycles. He belonged to the Jaguar Drivers Club, the Morris Car Club and SA Tourist Motorcycle Club.

He suffered very serious injuries which I shall attempt to summarise. He suffered a closed head injury. He suffered a compound fracture of the right femoral shaft of his right leg, a compound fracture of the medial femoral condyle and a fracture of the tibia of his right knee. He underwent an incomplete traumatic amputation of the right foot. He suffered compound fractures of the left tibia and fibula and a fracture of the left fibula head of his left leg. He suffered fractures to the left side of the lumber transverse processes and a fracture of L4 spinous process. He suffered a fracture of the left twelfth rib posteriorly. He suffered extensive injuries to his pelvis including a wide diastasis pubic-symphysis, disruption of both sacro-iliac joints, fracture of the left sacral ala, urethral trauma, major haemorrhage and a transient sacral plexus injury.

He was admitted to hospital on the day of the accident and remained in hospital until 3 December 1993, a period a little longer than two years.

During that time he underwent a number of surgical procedures. Six days after the accident his right leg was amputated below the knee. At the same time extensive surgery was performed on his right upper leg and left lower leg. He continued to undergo surgery to both his legs and his pelvis over the two years in which he was in hospital.

He has had a fusion of the right sacro-iliac joint which has left him with a bizarre gait. He has undergone multiple urological procedures culminating in the insertion of an artificial sphincter to cure incontinence arising out of the serious pelvic injuries.

He has a number of serious continuing physical disabilities. He has pain and instability in the left knee which gives way. He has grating and grinding of the right knee with intermittent swelling and limited movement. He has pain on the right side of his pelvis localised posteriorly. He gains relief from pain by using a TENS machine. He suffers from lower back pain for which he is treated with methadone at the pain clinic. He has a prosthesis on his right leg. He has difficulty walking. He walks with the use of a stick or sticks. He has difficulty climbing stairs. Slopes are a problem. He has difficulty getting in and out of cars. He has footdrop deformity to his left leg as a result of nerve damage in that leg. He has difficulty sitting on a flat surface because of his pelvic injuries. He is unable to sit on hard surfaces.

He suffered significant injuries to his urethra as a result of the fracture of the pelvis and the wide pubic diastasis. During his hospitalisation he developed a urethrocutaneous fistula through his laparotomy wound.

About three months after the accident he underwent a trans-pubic urethroplasty and omentoplasty to excise extensive post traumatic fibrosis from around the proximal urethra. It was later determined that he had a non functioning urethral sphincter as a result of which he was incontinent resulting in a continuous leakage of urine. Further investigations showed that he had a patulous external sphincter region and open bladder neck. In July 1993 an attempt was made to place an artificial urinary sphincter cuff around the bladder neck but that was not successful and the plaintiff remained incontinent. A further attempt was made in June 1994 and there was some improvement but he still remains liable to incontinence when under stress.

The medical evidence was that he will have longstanding problems with his bladder and his urethra. His incontinence will always be present. There is a likelihood that the artificial urinary sphincter will cause problems in the longer term. In a five to ten year period it is likely that the artificial sphincter may lose its effectiveness.

There is some risk that he will develop occasional urinary tract infections. He will need long term follow up to his kidneys and bladder at regular six to 12 months intervals.

The injuries which he has suffered and the subsequent neurological treatment have rendered him impotent.

At the commencement of the trial the plaintiff was still in his employment at Kinhill Engineers Pty Ltd. He said he was unable to do the full range of his former duties. He could no longer walk on construction sites. He could not climb ladders. He could not evacuate a construction site in a hurry. Because of his injuries his duties were restricted to design and some commissioning.

He is unable to play squash, run, jog, cycle or exercise in a gymnasium. He can no longer ride a motorcycle and cannot kick start a motorcycle. He is able to drive a car which has been modified to cater for his disabilities.

He has difficulty in showering because of difficulty balancing on one leg. His house has been modified to allow him to cope. He has to sit down to dress. He lives alone and has to perform his own housework. He said that things he could do took a lot longer than previously. He is able to shop but cannot carry the weights that he previously was able to carry.

He said that he sleeps badly because of stress. He complained that he was depressed and frustrated by his physical limitations. He said he had a shorter temper since the accident which had affected friendships.

Evidence was led to confirm all of those matters and in particular his complaint of ongoing depression.

He was examined by an occupational physician, Dr Graham Wright, whose report dated 8 August 1996 was tendered. I set out the summary of that doctor's opinion:

"In summary, he has re-established employment despite devastating injury. His current employment status must be considered tenuous, given his lack of flexibility in employment and others' perceptions of him. Should he be retrenched because of the lack of suitable duties available for him to perform, the likelihood of achieving further full time employment is slight. In the future, he would be likely restricted to contract employment at the design stage of projects, and on maintenance and improvement of control systems at established sites."

Subsequent to the expression of that opinion the plaintiff was in fact retrenched. His retrenchment was due to a downturn in workload. The Master accepted the evidence of Mr Prowse, a senior officer of the plaintiff's employer "that the downturn in workload related to less work being available to the employer as a whole."

Prior to December 1997 the plaintiff had undergone an arthrodesis of the left sacro-iliac joint. On 20 December 1997 the plaintiff was involved in a further motor vehicle accident when the car which he was driving was struck by another vehicle. In that collision his left knee forcibly struck the front of the passenger's compartment of his motor vehicle. He sustained an injury to his left knee and an attenuation of the arthrodesis of the left sacro-iliac joint. Mr Pohl said that his judgment was that there had been weakening of the joint by reason of that second accident which would not have occurred if the plaintiff had not suffered the original trauma to his pelvis in the subject accident. The Master held that the plaintiff was entitled to recover against the defendants for the attenuation i.e. the weakening of the left sacro iliac joint. He concluded that the plaintiff was so entitled because the subject accident had left him in a condition which made him susceptible to further injury.

Mr Pohl's evidence supported the finding made by the Master and, in my opinion, that finding should stand.

Even if I was wrong to allow that finding to stand it is not clear how the Master has compensated the plaintiff. It may be supposed that something was allowed in the award for non-economic loss but the amount allowed has not been stated. In any event it would not have had any significant effect on that award. Indeed having regard to his overall injuries the amount which could have been allowed for non-economic loss arising out of the subsequent accident would have been insignificant. Whether any amount was allowed for future medical treatment is not clear. In the absence of any specific allowance I am not prepared to assume that any sum was awarded. I do not think it can be argued that this particular factor reduced the plaintiff's otherwise remaining earning capacity. No allowance was made in special damages.

In those circumstances whether the Trial Judge was right to find the defendants responsible for the effects of the later accident does not matter much. Any complaint on this aspect was de minimis. Steamranger was right to abandon this ground of appeal and the Council was right not to address it.

The injuries to his pelvis and both his legs will leave him, in due course, confined to a wheelchair probably between the age of fifty to sixty.

It is likely that he will have to undergo further surgery to both his right knee and his left knee and there is some risk that he will have to undergo knee replacements. The knee replacements are likely to occur when he is sixty years of age.

He will need assistance in the future including assistance with home maintenance, housekeeping, cooking and general care.

Because of the application of s 35A of the Wrongs Act the Trial Judge was required to assess the plaintiff's non economic loss by reference to a number on a scale between nought and 60 and apply that number to the relevant multiplier. His Honour chose the number 40 and applied that number to the relevant multiplier which was $1,310 which led to an assessment of $52,400 for non economic loss. There is no complaint about that assessment by any party.

The number chosen by his Honour demonstrates the seriousness of the plaintiff's injuries.

The Master assessed the head of damage which he described "Past Economic Loss", which is probably more appropriately called a loss of earning capacity to the date of trial, at $120,000. He allowed for a total loss of that capacity from the date of the accident to early January 1994 when the plaintiff returned to work. He allowed a further sum for further loss of earning capacity from early January 1994 to May 1999 when the evidence and submissions in the trial were complete.

His Honour made reference to the plaintiff's gross salary at the date of the accident viz. $43,186. He allowed for taxation. He took into account the employer's contribution for superannuation. He refused to take into account an expense allowance of $7,700 which the plaintiff received.

He made an allowance for the plaintiff's loss of opportunity to obtain promotion during the period of seven and a half years from the date of the accident to May 1999.

After taking into account factors such as annual leave and sick leave his Honour assessed the plaintiff's damages for "Past Economic Loss" in the sum of $120,600. At the end of his reasons his Honour reduced that figure to $120,000. No party makes any complaint about the missing $600.00.

When the plaintiff's employment was terminated he was in receipt of a gross income of $66,400 and a net income in the sum of $41,600. The parties agreed that the Trial Judge should assess his loss of earning capacity upon the basis that he had a net income of $800 per week. Actuarial evidence was tendered. Assuming a discount rate of 5 per cent and mortality in accordance with the Australian Life Tables published by the Australian Government Actuary the lump sum equivalent of a payment of one dollar per week to a male born on 13 November 1951 is, to age 65 or prior death $598, and for whole of life $784.

The Master found but for the accident the plaintiff would have worked at least until age 60 and probably until age 65 and so had regard to the lower multiplier, which for a loss of $800 per week calculates to $478,400.

He had regard to contingencies. Specifically he took into account the prospect that the plaintiff might have been able to attain a level of seniority in his employment beyond that which he had attained at the date of the termination of his employment. On the other hand he took into account adverse contingencies including the possibility that the plaintiff's employment might have been terminated for reasons not associated with his injuries. In view of the Master's finding that the plaintiff's employment was terminated because of a downturn in workload to the employer on a whole this aspect could not have figured highly in the assessment. Moreover where the Master has assessed a capital figure for loss of future earning capacity in excess of the actual calculation of his present weekly wage that adverse contingency could have played no real part in that assessment. His Honour must have found that the favourable contingencies not only outweighed the unfavourable contingencies but to a very significant extent.

His Honour then assessed damages for loss earning capacity in the future at the sum $500,000.

It is clear from the calculation to which I have referred that his Honour must have proceeded upon the basis that the plaintiff had a very significant loss of earning capacity and that the favourable contingencies outweighed the adverse contingencies and by a significant amount. Assuming the plaintiff's employment would have terminated but for the injuries somewhere between 60 and 65 and, assuming contrary to the Master's finding the plaintiff suffered a total loss of earning capacity and assuming the plaintiff's income as at the date of his termination and the actuarial evidence to which I have referred the award allows more than $50,000 for favourable contingencies.

In fact the Master found that the plaintiff had retained almost all his intellectual capacity to perform his vocational employment. He found, however, that the plaintiff had considerable physical limitations which meant that he was confined to employment which enables him to work in an easily accessible environment. He also found that the plaintiff has a diminished energy and drive. He found that the plaintiff was less employable than an able bodied person. However he specifically found that the plaintiff retained a "residual working capacity and this factor must be allowed for in the assessment of damages."

He found that whilst the plaintiff was intellectually capable of carrying out his pre-accident employment the physical limitations imposed upon him by his injuries would make it difficult for him to obtain any further employment in the future and if he was to obtain employment would make it difficult to maintain that employment.

These findings which the evidence, particularly that of the plaintiff supported, means that the Master must have allowed a very significant amount for favourable contingencies.

Both defendants complain of the assessment of this aspect of the plaintiff's damages.

In my opinion the award for loss of earning capacity in the future was generous.

The plaintiff gave his evidence whilst he was employed with Kinhills. It was, as I have said, during the period when his Honour had reserved his judgment that the plaintiff was retrenched.

He was, however, cross examined by Mr Stratford, who then appeared for Steamranger, as to what he would do if he was retrenched.

The plaintiff said that in the event that he was retrenched he would look for work elsewhere. He would accept any work provided it was in his sphere of expertise and he was able to physically manage it. If employment was not available to him he would return to working on his own account, although he made it clear that he was unable to do many things that he previously could.

That evidence supports the Master's finding that the plaintiff retained a residual earning capacity.

There can be no doubt, as the Master has found, that the plaintiff has had a very significant reduction of earning capacity, but clearly some allowance more than a notional sum has to be made for the earning capacity which the plaintiff has retained. After all he exercised an earning capacity for some years after the accident.

There was no evidence that the plaintiff was likely to be promoted in his employment or that there were other prospects outside of his employment which might generate a level of income in excess of that which he was receiving when his employment was terminated. There was the plaintiff's own evidence that if he had become project manager he could have earned $20,000 more than he was then earning. The prospects of him obtaining that employment were not really explored. Some allowance needed to be made for that possibility and indeed the Master did so..

In the circumstances it seems to me that the Master must have erred in allowing a figure of $500,000 for loss of future earning capacity. Whilst it might be the case that his prospects of promotion were such that it would have been inappropriate to have regard to the prospects of earlier retirement or earlier retrenchment it is not possible, in my opinion, to arrive at a conclusion that the plaintiff's favourable contingencies outweighed the unfavourable contingencies to the extent to which the Master must have done.

Evidence was led from Mr Prowse that Kinhill Engineers Pty Ltd provided retrenched employees with a retrenchment package. There is no evidence, of which I am aware, that the plaintiff received a retrenchment package although I must say he is unlikely to have been retrenched without benefits. In so far as those benefits were in substitution for earnings those benefits, or at the very least the value of the acceleration of those benefits, should have been brought to account in the assessment of the plaintiff's loss of future earning capacity. However in the absence of evidence those benefits must be ignored.

In my opinion the amount of compensation allowed for loss of the future earning capacity is too high and manifestly so.

In my opinion a proper award for future loss of earning capacity, upon the findings made by the Master and, taking into account both the prospects of favourable and unfavourable contingencies would be in the order of $450,000.

The Master allowed a sum of $247,524 in respect of future medical and other costs.

There was no dispute that the plaintiff would incur expenses for prosthetics, orthotics and a wheelchair. The total of those three items came to $186,774.

There was evidence before the Master that the plaintiff would have to undergo a number of surgical procedures in the future. His Honour allowed $1,350 for the excision of a small bony lump around the lateral aspect of the plaintiff's right patella. He allowed $25,000 for the cost of knee replacement operations and a further sum of $1,500 for follow up consultations. He allowed $7,500 for further medical costs in relation to the plaintiff's urological injuries and a further $12,000 for further surgery in respect of those injuries.

He allowed the sum of $3,400 for future consultations with the plaintiff's general practitioner. Finally he allowed $10,000 in respect of future medication.

In my opinion no error has been shown in this aspect of the assessment of damages. His Honour has found that the probabilities are that the plaintiff will have to undergo the various operations to which I have referred. He has identified the appropriate costs for those operations.

The Master allowed the sum of $255,000 for future care. It is this aspect of the assessment of damages of which the plaintiff complains.

The plaintiff submitted to the Master that this aspect of the assessment ought to be approached in two stages. An assessment of the plaintiff's loss should be made to age 60 and then a further assessment made of his loss subsequent to turning 60.

It was put that prior to the age of 60 he would require three hours assistance each day of the week and after age 60 additional domestic assistance.

His Honour, however, found that whilst the plaintiff would require domestic assistance it was not of the kind contended for by the plaintiff. He found that something like three hours per day four days per week would be sufficient up to and beyond the age of 60. His Honour, I think, proceeded upon the basis that the cost of the domestic service would be in the order of $16 per hour. He used the multiplier for whole of life of $784 and calculated a loss of $150,000.

Next he turned his attention to the question of gardening and home maintenance. The plaintiff sought an allowance based upon four hours per week at $25 per hour being a sum of $78,000 in respect of this aspect of this head of damages. His Honour, however, concluded that an allowance in the order of two to three hours per week would be sufficient and allowed $45,000.

Lastly, he had regard to the cost of modifications to the home made necessary by reason of the physical limitations imposed upon the plaintiff. The plaintiff's sought $65,300 in that regard but the Trial Judge allowed only $60,000.

The assessment of this head of the plaintiff's damages is very much a matter of judgment upon which minds could reasonably differ.

I do not think that any complaint could be made about cost of modifications to the house and I think that little complaint could be made about the cost of gardening. As his Honour said the future cost of gardening and home maintenance very much depends upon where the plaintiff might reside.

The more significant item is the cost of domestic assistance. The Trial Judge has allowed about 60 per cent of the plaintiff's claim.

There is no doubt that the plaintiff probably presently requires assistance and will in the future most certainly require assistance. The question is one of degree.

At present he is able to shower, dress himself, prepare breakfast and drive himself to and from work. After work he sometimes stops to pick up his mail which is delivered to a post office box. When he returns home he changes into casual clothes and often lies down to ease the pain in his spine. He carries out a program of exercises both morning and night to alleviate the pain in his spine. Next he prepares himself an evening meal without assistance. The preparation of that meal takes longer because he is mobile only with the use of a prosthesis. He estimates it takes twice as long because of his disabilities. He usually finishes his meal by 8:30pm. He showers before he goes to bed. A quick shower for him takes half an hour. He often wakes during the night with discomfort in his lower back and he carries out some exercises to relieve that discomfort.

He is presently remodelling his kitchen with the assistance of his brother. The evidence suggests that the motivation for the remodelling of the kitchen is not so much because of his disabilities but rather because of the outdated decor and conveniences.

He presently carries out his own laundry and ironing. He had, until shortly before the trial, carried out all cleaning of the house but he was finding that progressively more difficult. In particular he had been advised by his surgeon, Mr Pohl, that he should use two sticks for a while and the use of two sticks has interfered with his ability to carry out his housework.

His evidence was that if he was able to revert to the use of one stick he would then continue to carry out the vacuuming, dusting and other cleaning.

276. There is no doubt that the plaintiff is a fiercely independent man. He was so described by his surgeon. Notwithstanding his disabilities he has been able to pretty well care for himself since the accident although, of course, with resultant discomfort. That discomfort must have been allowed for in the award of non-economic loss.

277. There can be no doubt that in the future he will find it even more difficult to care for himself and will therefore develop a greater need for further assistance.

278. The difficulty I have with the Master's assessment is that he appears to have assumed, contrary to his earlier findings, that the plaintiff's physical condition will not deteriorate. He has assessed the domestic assistance upon the basis of the same need "up to the age of 60 and beyond". I think, although he has not said so in express terms, he has assumed the same level of need for gardening and house maintenance from trial until age 60 and beyond. I think to assume a consistent level of need up to and beyond 60 is to overlook the probabilities that the plaintiff's physical condition will deteriorate. I think the Master's assessment therefore under compensates the plaintiff on this head of damages.

279. The Master has allowed a total of $195,000 for future care for domestic and gardening and house maintenance. It is impossible to determine precisely the further future care which will be necessary because of the plaintiff's physical limitations after the age of 60. The Master is right when he says that need will very much depend upon where the plaintiff is then residing.

280. Without pretending to be precise but using the hourly rates and actuarial multipliers as a rough and ready guide I think the award for future care should be increased by $50,000 to reflect the greater need the plaintiff's physical limitations will generate as the plaintiff gets older.

281. I would increase that aspect of the award by $50,000.

282. The most significant aspect of the special damages, of course, was the two years of hospitalisation. No amount has been allowed for the fact that during the whole of this time the plaintiff was fully sustained in hospital. If the plaintiff was awarded the whole of his loss of earning capacity during this period, and if he was otherwise sustained in hospital, the plaintiff may have had the benefit of the saving of the cost of his own sustenance. The plaintiff, by reason of his hospitalisation, was saved the cost of his own food and the cost of his most immediate needs such as toiletries and the like.

283. Steamranger complained of the failure of the Master to make some allowance for the plaintiff's sustenance but abandoned that complaint on appeal. Therefore it has not been necessary to decide whether a deduction for the plaintiff's sustenance over such a long period should have been made.

284. As can be seen I think one of the heads of damages is too low by $50,000 and the other too high by the same amount.

285. Both heads of damages relate to future losses so there will be no impact on any interest awarded.

286. Because the appeals are against the assessment of damages as a whole I would dismiss all appeals against damages: Beneke v Franklin (1975) 1 NSWLR 571; Piepkorn v Kent (1980) 91 LSJS 186.

287. I agree with the orders proposed by the Chief Justice.