PARTIES :

CA 40334/01; 40335/01
SC20099/95

MASON P
SHELLER JA
BRYSON JA

(i) Whether the Blue Mountains City Council (the Council) owed a common law duty of care to the plaintiff and whether the injury was foreseeable;

(ii) Whether the damages recoverable against the Roads and Traffic Authority (RTA) and the Council for the negligent design, construction, management and maintenance of the service road and of the nature strip should be assessed in accordance with the Motor Accidents Act 1988 (MAA) or under common law; and

(iii) Whether the contribution between tortfeasors as assessed by the trial Judge under s5 of the Law Reform (Miscellaneous Provisions) Act 1946 was correct and whether the driver should be ordered to make contribution to the extent of the relevant proportion of the common law damages capped by the maximum liability under the MAA;

(iv) Whether the Council should be permitted to adduce new evidence before the Court of Appeal of its financial problems without seeking a new trial.

Brodie v Singleton Shire Council (2001) 206 CLR 512 applied.

Bitupave Ltd v Bollington (1998) 28 MVR 223 applied.
Gunter v State Transit Authority of New South Wales [2004] NSWCA 330 distinguished.

Unsworth v Commissioner for Railways (1958) 101 CLR 73 applied.

1. The material was too generalised and incomplete to cover any of the matters for consideration described by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 580-581.
Brodie v Singleton Shire Council (2001) 206 CLR 512 applied.
2. It would be unfair to permit the Council to put in evidence and rely upon such material without the other parties having the opportunity to deal with it in oral evidence both from the Council’s witnesses and their own. Thus, in the absence of any claim by the Council for a new trial, the evidence should not be admitted on the appeal.

ORDERS
Appeals and cross-appeals dismissed with costs. These costs to include the costs of both the first and second hearing in this Court.
**********

CA 40334/01; 40335/01
SC 20099/95

MASON P
SHELLER JA
BRYSON JA

Tuesday, 15 March 2005

Introduction
On 9 July 1994, Nadia Ryan (the plaintiff), who was then 9½ years old, was seriously injured when struck by a motor vehicle being driven by Jack Pledge (Mr Pledge). The accident occurred on a service road adjoining the Great Western Highway at Blaxland. The plaintiff, who was in the company of her father and sister, was struck after she stepped on to the service road from the nature strip which divided the highway and the service road. She instituted proceedings against Mr Pledge alleging negligence in his driving of the motor vehicle and against the Blue Mountains City Council (the Council) and the Roads and Traffic Authority (RTA). Against the Council and the RTA, or its predecessors, she alleged negligence in the design, construction, management and maintenance of the service road and of the nature strip, particularly in planting and in failing to maintain by pruning shrubs the foliage of which prevented Mr Pledge from seeing the plaintiff and the plaintiff from seeing Mr Pledge as the plaintiff moved to step off the nature strip.

“26 ... As already observed, the vegetation on the nature strip was wooded in varying degrees by a number of shrubs and trees. These in places extended up to the kerb of the service road, in places overhanging it and in other places actually extending into the gutter. Such shrubs are depicted in a number of photographs, particularly Ex. C taken on the day of the accident, and as already noted this foliage had a tendency to restrict the view by a driver on the service road of pedestrians on the nature strip and vice versa.
27 It was also submitted that, having regard to the surrounding features, steps should have been taken to restrict or prevent pedestrians crossing the service road except at the continuation of the pedestrian crossing of the highway where motorists would be more likely to expect them, that the construction of the 90° angle parking bay outside the hardware store in a place where the service road was too narrow for that purpose created a potential hazard which distracted drivers from keeping a proper lookout, and finally, that taking all these considerations into account, signs should have been erected to warn drivers and/or pedestrians of the danger.
28 In relation to these matters a number of witnesses gave evidence, namely Mr Wingrove (consultant transport engineer), Mr Grewcoe (horticulturist / arborist), Mr Winning (traffic engineer), and in addition there were the reports of Mr Richmond (highway engineer) (Ex. G). Mr Richmond's were admitted over objection (see my judgment of 31 January 2001) but it later appeared that the third defendant's solicitors had given notice to the first defendant's solicitors that he was required for cross-examination whereupon Mr Garling, senior counsel for the first defendant, said he would not be submitting that Mr Richmond's opinions were not challenged by the third defendant.
29 Ultimately this appears to me to make no significant difference as there was little, if any, disagreement between the various experts on what constituted acceptable road construction and maintenance practice in relation to the matters relevant to the case.
30 Some issue was raised as to whether it was foreseeable that pedestrians would cross the nature strip and the service road in the area that the plaintiff and her father did on the day in question when there was the controlled pedestrian crossing of the highway located some 40-50 metres south of Coughlan Road with the paved area of the nature strip on its eastern extremity and the high post and rail fences at that point which had the purpose and capacity of "storing" pedestrians there, so that they would tend to cross the service road at that point.
31 However, bearing in mind that the Blaxland High School was located on the northern side of Coughlan Road, it could be anticipated that at times students and others would cross the highway form [sic] the northern kerb of Coughlan Road, through the gap in the arc weld fence on the highway median strip at the intersection across the eastern side of the highway, through the low post and rail fence at the western edge of the nature strip, across such strip and then across the service road, particularly if heading to homes on the eastern side of the service road. See also Mr Wingrove's report para 19.
32 In addition it could be foreseen that the hardware store would generate customers and not all would arrive by car and park in the 90° angle parking bay. There was no restriction on parking on either side of the highway in the breakdown lane (as the Ryan family did on the western side) and persons parking in that area would be unlikely to walk to the controlled crossing. Indeed in the case of those who might park their cars on the eastern side of the highway they would have no reason at all to walk down to the crossing and the gaps in the low post and rail fence invited them to walk across the nature strip to the service road. Such forseeability is confirmed by the existence of what was described as the "well trodden track".
33 Having regard to the problem of headlight glare from oncoming traffic, particularly on the left hand side as between Sydney bound traffic on the highway and north bound traffic on the service road, it was appropriate and necessary to provide some form of screening, and vegetation is a generally acceptable form of such screening. However, the Guidelines (Exs. 17A and 17B) as well as the expert opinions of Messrs Richmond and Winning make it clear that such vegetation screening should not extend up to, or over the kerb as this did, but should be set back so that pedestrians intending to cross the road are clearly visible to drivers of approaching vehicles and are not obscured by the foliage, and likewise approaching vehicles are visible to the pedestrians. I am satisfied that the vegetation on the nature strip in this area did not meet these standards; it was too dense, and too close to the kerb, at times actually extending beyond the kerb onto the carriageway itself.
34 The plans prepared by the Department of Main Roads (Ex. N1) in fact showed the foliage overhanging the carriageway of the service road. Whilst these may have been intended to represent trees overhanging at a considerable height above ground, there is no border back from the kerb so as to provide a proper sight line of and for pedestrians. Mr Winning, formerly employed by the Roads and Traffic Authority, described such plans as "inadequate" and potentially dangerous. He said that no traffic authority would plant vegetation intending it to grow over the carriageway or to reduce the sight distances on the carriageway (T 482). He said that if he had been presented with such a plan he would have rejected it; and he agreed that when vegetation was planted on a nature strip it should be planted so as to ensure that either at maturity or by means of pruning there should be left a clear space between the vegetation and the kerb (T 483).
35 Although the Guidelines Exs. 17A and 17B (1987 and 1982) specify 1 metre clearance from the kerb to the trunk of the shrub, they also make clear that the foliage must not restrict sight distances between road users.
36 Moreover, as Mr Grewcoe the horticulturist explained, the types of shrubs used were in many cases such as would grow and thicken up, and consequently a proper program of maintenance and pruning was required. There was apparently no such program and they were not pruned until after, and almost certainly as a result of, the plaintiff's accident.
37 It was submitted that there should have been some form of barrier type fencing to prevent pedestrians crossing the nature strip except from the holding bay at the eastern extremity of the controlled crossing. I do not consider this would have been necessary if the vegetation necessary to prevent the headlight dazzle had been planted an appropriate distance back from the kerb and been properly maintained; but as an alternative a solid screen type fence could have been placed on the median strip effective so as to both prevent the passage of pedestrians and screen the headlight glare; or an arc weld type fence similar to that on the highway median strip could have been erected along the nature strip and vegetation planted as was in fact done to limit the headlight glare.
38 As it happened, the vegetation planted where it was and allowed to grow as thick as it did in an area where it was foreseeable that pedestrians would cross, significantly restricted the vision of the first defendant, particularly in circumstances where his attention was distracted by the traffic movements associated with the parking bay. Accordingly I am satisfied that the public authorities responsible for the design and construction of the nature strip and the planting and maintenance of the vegetation on it were guilty of negligence which contributed to the plaintiff's accident.
39 The other major matter of contention in relation to the road design was the provision of the parking bay providing parking for vehicles at 90° outside the hardware store on the eastern side of the service road. Australian Standard 1742, Part 2-1978 (Ex. P) provided that a relevant consideration for the provision of 90° angle parking was the width of the carriageway (Clause 14.3.3 and Fig. 14.6) and the 1993 standard was in similar terms.
40 Having regard to those standards and the opinions expressed by the expert witness Mr Wingrove, I am satisfied that, as the service road was only 7.4 metres wide from kerb to kerb, it was negligent design to provide for 90° angle parking, because in those circumstances vehicles reversing out of the parking bay, even if intending to travel south on the service road, necessarily had to back out onto the northbound (or opposite) side of the service road. This created a potential hazard for drivers proceeding north on the service road when a vehicle was backing out of the bay in that it distracted them from other matters requiring their attention directly ahead, particularly the possibility of pedestrians moving off the nature strip to cross the road, which I am satisfied is exactly what happened to the first defendant in this case.
41 Having regard to the likelihood of pedestrians crossing the service road from the nature strip in the vicinity of the hardware store, the density and closeness to the kerb of the foliage on the nature strip and the location of the 90° parking bay on the narrow service road, I am also satisfied that there was a need of warning signs or a notice limiting the speed of vehicles (or directing them to proceed slowly) etc.”

“42 Although a highway authority is not liable for mere failure to repair or maintain the highway (non-feasance), it is liable if it does work and such work is done negligently so as to create a danger which did not previously exist and which results in injury to a plaintiff: Buckle v Bayswater Road Board (1936) 57 CLR 259, Gorringe v Transport Commission (Tas.) (1950) 80 CLR 357 at 363, Webb v State of South Australia (1982) 56 ALJR 912, Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232, Lake Macquarie City Council v Bottomley [1999] NSWCA 28. The construction of the service road, including the 90° angle parking bay road, and the planting of trees and shrubs on the nature strip were all instances of misfeasance and consequently the public bodies who carried out such work are liable for any consequences arising from any negligence in the carrying out of such work.
43 Moreover the immunity for non-feasance does not apply to the non repair of artificial structures, including trees, planted near the highway but not forming part of the road surface itself which because of lack of maintenance become dangerous with the passage of time: Donaldson v Municipal Council of Sydney (1924) 24 SR 408, Hughes v Hunters Hill Municipal Council at 236; such failure constitutes misfeasance, so the second and third defendants cannot claim immunity in respect of the failure to prune and maintain the shrubs and trees on the nature strip.
44 It was submitted that the non-feasance immunity only extends to a public authority acting as highway authority exercising its powers as such to build, maintain and repair roads, and does not extend to a public authority acting as traffic authority: Turner v Ku-ring-gai Municipal Council (1990) 12 MVR 321, 72 LGRA 60 but that exception seems to apply only in respect of mandatory speed signs and not in the case of advisory speed signs (which is what is in issue here) where the ordinary misfeasance/non-feasance rule applies: Gloucester Shire Council v McLenaghan [2000] NSWCA 208 at [72].
45 It was submitted on behalf of the second defendant that because councils have limited funds it was necessary to consider the resources it had to determine whether it was reasonable to spend money on this service road and nature strip, but as the Court of Appeal pointed out in Hughes v Hunters Hill Municipal Council at 236-7, although the limited resources of public authorities may have been the rationale for the immunity for non-feasance, the authorities have clearly established liability for misfeasance without regard to an examination of resources - contra Powell JA, dissenting, in Gloucester Shire Council v McLenaghan.
46 The second and third defendants also sought to avoid liability on the ground that they owed no duty to the plaintiff because of their failure to exercise the statutory powers vested in them by the Roads Act 1993, ss 145 and 146, or as occupiers of the roadway; and reference was made to cases such as Perre v Apand Pty Ltd (1999) 198 CLR 180, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, Sutherland Shire Council v Heyman (1985) 157 CLR 424, Pyrenees Shire Council v Day (1998) 192 CLR 330, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Stovin v Wise [1996] AC 923. But none of these cases concerned the liability of highway authorities for the condition of the highway, which is different to, and is not based on, the duties of occupiers to persons entering on land, and the extent of their duty in relation to the exercise of their statutory powers as highway authorities is defined by the misfeasance/non-feasance rule: Buckle v Bayswater Road Board per Dixon J at 280-4. In Stovin v Wise the bank which constituted the danger by obscuring the view was on adjoining private land, and not on the highway itself.
47 For these reasons I am satisfied that each of the second and third defendants are liable to the plaintiff as they were both concerned in bringing about the circumstances which, together with the negligence of the first defendant, led to the plaintiff's injuries.”

“On the other hand, she probably did not realise that because of the trees and shrubs, the density of the foliage and the narrowness of the service road there was a need to pay even more attention to looking than in the ordinary case. In all the circumstances I assess her responsibility for her injuries at 10%.”

“64 As I understand the first defendant's submissions, he submits that he should only be ordered to make contribution to the extent of the relevant proportion of the MA Act damages, and not the relevant proportion of common law damages capped by the MA Act damages. Although the matter is not free from doubt, I feel that in this regard I should adopt the position indicated by Wood CJ at CL in Lanza v Codemo and allow the relevant proportion of common law damages capped by the amount of the first defendant's liability under the MA Act.
65 Accordingly, on the Third Cross-Claim (Pledge v Blue Mountains City Council) there will be an order for contribution of 25% of $3,712,500, namely $928,125, and a similar order on the Fourth Cross-Claim (Pledge v Roads and Traffic Authority).
66 On the Sixth Cross-Claim (Roads and Traffic Authority v Pledge) there will be an order for contribution for 50% of $3,712,500 namely $1,856,250 (the cap on the first defendant's liability being in the particular case irrelevant), and on the Seventh Cross-Claim (Roads and Traffic Authority v Blue Mountains City Council) there will be an order for contribution for 25% of $3,712,500 namely $928,125.
67 On the Eighth Cross-Claim (Blue Mountains City Council v Pledge) there will be an order for contribution for $1,856,250 and on the Ninth Cross-Claim (Blue Mountains City Council v Roads and Traffic Authority) an order for contribution for $928,125.”

First appeal hearing – Court of Appeal

“1. His Honour was in error in holding that the ‘RTA’ was liable to ‘Ryan’.
2. That his Honour was in error in holding that the ‘RTA’ was negligent in the design and construction of the nature strip and in the planting and maintenance of the vegetation.
3. That his Honour was in error in holding that it was foreseeable that ‘Ryan’ would cross the nature strip and service road in the area that she and her father did on the day in question.
4. That his Honour was in error in holding that there was a need for warning signs or a notice limiting the speed of vehicles on the service road.
5. That his Honour was in error in apparently holding the ‘RTA’ liable for the provision of 90 degree angle parking on the service road.
6. That his Honour was in error in apportioning equal liability between the ‘RTA’ and the ‘Blue Mountains’.
7. That his Honour was in error in his apportionment of 50% to ‘Pledge’, 25% to the ‘RTA’ and 25% to the ‘Blue Mountains’.
8. His Honour erred in finding that damages payable by the appellant should not be assessed pursuant to the Motor Accidents Act 1988 (as amended).”

“1. His Honour erred in finding that the extent of the common law duty of care in relation to the exercise of the appellant’s statutory powers as a highway authority, was defined by the misfeasance/non-feasance rule.
2. His Honour erred in finding that the first respondent’s injuries, loss and damage were caused by the appellant’s breach of a common law duty owed by the appellant to the first respondent.
3. His Honour erred in apportioning responsibility for the first respondent’s injuries:
50% to the second respondent,
25% to the appellant; and
25% to the third respondent.
4. His Honour erred in finding it was foreseeable that pedestrians would cross the nature strip and service road at the site which the first respondent and her father crossed on 9 July 1994.
5. His Honour erred in finding that as a public authority [sic] was responsible for the design and construction of the nature strip and the planting and maintenance of the vegetation on that nature strip the appellant was negligent.
6. His Honour erred in finding that the appellant was negligent in its design of the 90 degree angle parking outside the hardware store on the western side of the service road.
7. His Honour erred in finding that the appellant was negligent in failing to provide warning signs or a notice limiting the speed of vehicles (or directing them to proceed slowly).
8. His Honour erred in finding that the shrubs on the nature strip between the highway and the service road were pruned almost certainly as a result of the first respondent’s accident.
9. His Honour erred in finding that the vegetation on the nature strip between the highway and the service road did not meet the relevant standards.
10. His Honour erred in rejecting the admission of oral and documentary evidence relating to the appellant’s common law duty and any breach of that duty.
11. His Honour erred in finding that the limited resources of a public authority is not a rationale for determining whether a public authority in the position of the appellant owes a common law duty of care or a rationale for determining whether there has been a breach of that duty.
12. His Honour erred in finding that damages payable by the appellant should not be assessed pursuant to the Motor Accidents Act 1988 (as amended).”

“1. That his Honour erred as a matter of law in assessing the basis for calculation of the contribution recoverable by the First and Second Cross Respondents against the Cross Appellant at Common Law and not pursuant to the Motor Accidents Act 1988;
2. That his Honour erred as a matter of law in assessing the basis for calculation of the contribution recoverable by the First and Second Cross Respondents against the Cross Appellant other than pursuant to the Motor Accidents Act 1988;
3. That his Honour erred as a matter of law in finding that the Motor Accidents Act 1988 conferred a right of contribution upon co-tortfeasors against a Motor Accidents Act insurer.”

Appeal to High Court

“2. Judgment and orders of the Court of Appeal of the Supreme Court of New South Wales on 10 April 2002 set aside.
3. Matter remitted to the Court of Appeal to determine re-apportionment of liability among the respondents to the second appeal and other matters that were before the Court of Appeal but not dealt with in its judgment including the matter of costs in that Court.”

“[30] The RTA and the Council appealed to the Court of Appeal (Meagher and Giles JJA and Ipp AJA) against the findings of negligence against them, and in respect of some other currently non-relevant matters. Mr Pledge cross-appealed, but only as to the extent of the contribution assessed against him.
[31] The Court of Appeal allowed the appeals by the RTA and the Council for reasons given by Ipp AJA with whom the other members of the Court, with one minor exception stated by Giles JA, agreed. These were, first, that for some significant distance before the point of impact Mr Pledge’s vision was not affected by the vegetation on the nature strip. Secondly, any failure of the RTA and the Council to clear the vegetation on the nature strip to the extent of 1 metre as suggested by non-binding guidelines did not cause the collision. Thirdly, failure by the Council to erect warning signs of any kind would not have caused Mr Pledge to drive in any different manner from the way in which he did. And fourthly, the finding that the provision of 90 degree angle parking bays was negligent was not ‘justified’, as the presence of the bays was not a causative factor in the collision.”

Hayne J observed at 574:

“[8] … It was the Council which designed and permitted the use of off road parking, at 90 degrees to the direction of travel, in bays beside the service road. …”

“1. The Court of Appeal erred in overturning the factual findings of the trial Judge, Dunford J, and in substituting its own factual findings, without determining that in making those findings the trial Judge had misused the advantage which he had as a result of undertaking a demonstration and inspection of the accident scene.
2. The Court of Appeal erred in rejecting the evidence of witnesses, or else making findings of fact contrary to their evidence, where the evidence of those witnesses had not been challenged during the trial.
3. The Court of Appeal erred where the trial Judge had accepted those witnesses as being honest, truthful and their evidence as accurate.”

Mr Pledge sought orders in both appeals that the judgment and orders of the Court of Appeal on the appeal and cross-appeal be set aside, that the appeals of RTA and the Council to the Court of Appeal be dismissed and that the hearing of Mr Pledge’s cross-appeal to the Court of Appeal be remitted to the Court of Appeal for hearing and determination.

“1. The New South Wales Court of Appeal erred in substituting its opinion that vegetation would not have impeded vision for the opinion of the Trial Judge based upon photographic evidence, oral evidence from witnesses (substantially unchallenged) and a view of the scene.
2. The New South Wales Court of Appeal erred in substituting its opinion as to the effect of vegetation based upon some of the photographic evidence for that of the Trial Judge based upon the whole of the evidence.
3. The New South Wales Court of Appeal erred in failing to accord to the Trial Judge the advantage in respect of acceptance of witnesses required by Abalos v Australian Postal Commission (1999) 171 CLR 167.
4. The New South Wales Court of Appeal erred in holding that non-compliance with the Australian Standard in respect of parking and with the Roads and Traffic Authority’s own standard in respect of vegetation did not constitute negligence by both the Council and the Roads and Traffic Authority.
5. The New South Wales Court of Appeal erred in finding that a warning sign as to speed would have been disregarded by a motorist who was complying with the existing speed limit.
6. The NSW Court of Appeal erred in overturning the judgment against the Council and the Roads and Traffic Authority.
7. The New South Wales Court of Appeal erred in finding that it is fair and appropriate that Nadia Ryan and Jack Pledge bear equal liability for the Council’s and Roads and Traffic Authority’s costs of the Trial and Appeal.”

The plaintiff sought that the judgment of the Court of Appeal be set aside and the judgment at first instance reinstated.

“1. That the extent of the Common Law duty of care in relation to the existence of the Council’s statutory powers as a highway authority was not defined by the misfeasance/ non feasance rule.
2. That it was not foreseeable that pedestrians would cross the nature strip and service road at the site at which the Third Respondent (the Plaintiff) and her father crossed on 9 July 1994.
3. That the Council had not breached its duty of care to the Plaintiff in failing to provide warning signs or a notice limiting the speed of vehicles (or directing them to proceed slowly).
4. That the pruning of shrubs on the nature strip between the highway and the service road was not as a result of the Plaintiff’s accident.
5. That the vegetation on the nature strip between the highway and the service road met the relevant standards.
6. That the trial Court erred in rejecting the admission of oral and documentary evidence relating to the Council’s Common Law duty and any breach of that duty.
7. That the limited resources of a public authority is a rationale for determining whether a public authority in the position of the Council owes a Common Law duty of care or has breached that duty of care.
8. That the Council did not breach any duty of care it owed to the Plaintiff.
9. In the event that the Council is held liable to the Plaintiff, it contends that:
a. any damages which the council is liable to pay should be assessed pursuant to the Motor Vehicles Act 1988 (as amended);
b. its responsibilities for injuring the Plaintiff should be less than 25% for the purposes of the Law Reform (Miscellaneous Provisions) Act 1946 (as amended).”

The Council also sought special leave to cross-appeal on similar grounds.

“[1] The facts and the issues in these appeals are set out in the judgment of Callinan and Heydon JJ which I have had the advantage of reading. Their Honours hold that the Court of Appeal of New South Wales erred in three respects in exculpating the Roads and Traffic Authority of New South Wales and the Blue Mountains Council from responsibility for the harm suffered by the plaintiff. They were:
(1) no proper basis for preferring observations of the photographic exhibits to the oral evidence of four witnesses whose evidence was accepted by the trial judge;
(2) reliance on time, speed and distance calculations that involved so many imponderables as to make the calculations little more than speculation;
(3) failing to give sufficient weight to the advantage that the trial judge enjoyed by viewing the scene of the accident.
[2] For the reasons given by Callinan and Heydon JJ, the Court of Appeal erred in these three respects. It follows that these appeals must be allowed and the matters remitted to the Court of Appeal to re-apportion liability between the three defendants and to determine the issues not dealt with by the Court of Appeal in the appeal to that Court.”

At 574, Kirby J said:

“[3] I agree, for the reasons given by Callinan and Heydon JJ, that error has been shown on the part of the Court of Appeal of New South Wales in exculpating the Roads and Traffic Authority of New South Wales and the Blue Mountains Council from responsibility for the damage suffered by the plaintiff. I also agree with the additional reasons of Hayne J and his analysis of the issues raised in these appeals.
[4] It follows that I agree that the appeals must be allowed with costs. The proceedings must be remitted to the Court of Appeal to determine the outstanding issues and to reapportion liability between the three defendants in the light of the conclusions of the Court of Appeal with which this Court has agreed. These are the lack of causative negligence in (1) the absence of the propounded traffic sign; and (2) the provision of parking bays at an angle of 90 degrees to the service road.”

“[8] … The state of the foliage on the median strip had been brought about by either or both of the Roads and Traffic Authority of New South Wales (the RTA) or the Blue Mountains Council (the Council). (Whether it was the RTA or the Council which was, or both [of] which were, responsible for the state of the foliage will have to be determined on remitter of the matter to the Court of Appeal. So too will any question of apportionment of that responsibility). …
…
[14] The issue about the parking bays may be contrasted with the foliage on the median strip. The foliage was as obvious as were the parking bays, But what was not obvious was that pedestrians could and did cross the median strip at an otherwise unmarked point in the strip. And as they did so, they were hidden from the view of drivers approaching that point, and cars were hidden from the pedestrians’ view. It was the presence of the foliage (in its then state) which hid pedestrian from driver, and vehicle from pedestrian.
…
[16] It was well open to the trial judge to conclude that, had the foliage been less, Mr Pledge’s attention would have been attracted to the pedestrians and the accident avoided or the impact lessened.
…
[18] In the Court of Appeal, the absence of signs was understood to present two issues: one about breach of duty and the other about causation. Ipp AJA concluded that it was ‘questionable’ whether the Council was duty bound to have erected a sign of the kind suggested but that ‘there were insufficient grounds to hold that a sign of the kind postulated would have caused [the driver] to drive in any different way’. I, too, would very much doubt that not to erect a sign of the kind suggested was a breach of any duty owed by the Council to the injured pedestrian. But whether or not that is so, there was no evidence that the presence of a warning sign would have affected the way in which the driver drove on this day. There was, therefore, no basis in the evidence for concluding that the absence of a sign was a cause of the accident. And there was, in any event, no finding that the Council was negligent in failing to provide signs of the kind discussed.
[19] These conclusions do not dispose of all the issues that were raised in the proceedings in the Court of Appeal. As between the Council and RTA there remains undecided in this Court what role each played in designing or maintaining the foliage on the median strip. What has not been determined, therefore, is what responsibility each had for the state of the foliage at the time of the accident. That will be a matter for the Court of Appeal. It follows that whether the amount of any damages which the Council may otherwise be liable to pay is affected by Pt 6 of the Motor Accidents Act 1988 (NSW) is a question for the Court of Appeal. It also follows that apportionment of responsibility between the parties found to have been negligent is a matter which should be determined by the Court of Appeal. Finally, Mr Pledge’s cross-appeal to that Court remains undecided.”

Mr Pledge’s cross-appeals were directed only to the contribution assessed against him being calculated by reference to the damages at common law awarded against the Council and the RTA and not by reference to the damages recoverable against him under the MAA.

“[50] We would allow the appeals. But that does not mean that the trial judge’s apportionment should necessarily stand. His Honour does seem to have had regard to the absence of a sign, and the provision of angle parking as negligent, and causative factors. Because in our opinion they were not, re-apportionment of negligence as between Mr Pledge, the RTA and the Council should now be made. Other issues arose before the Court of Appeal. The identification of the issues that remain to be determined and their resolution should be left to the Court of Appeal. As the Court of Appeal will need to decide these in any event, and because some of them relate at least to the respective obligations and liabilities of the RTA and the Council inter se, it is better that the Court of Appeal undertake any re-apportionment of liability rather than this Court.
[51] Each appeal should be allowed with costs. The judgment of the Court of Appeal of the Supreme Court of New South Wales should be set aside. The proceedings should be remitted to the Court of Appeal for reapportionment of liability among Mr Pledge, the RTA and the Council consistently with the decision of this Court and for the determination of the other issues before, and not decided by, the Court of Appeal, including the costs to date in the Court of Appeal having regard to the decision of this Court.”

The facts of the accident

“[21] The Great Western Highway (the Highway) passes through the town of Blaxland in New South Wales. It consists of a service road, about 7.4 m wide, a fairly densely planted nature strip about 3.4 m wide bisected by an almost continuous post and rail fence, two traffic lanes for Sydney bound traffic and two traffic lanes for Katoomba bound traffic. Coughlan Rd forms a T-junction with the Highway on the side of the Katoomba bound lanes. On the side of the Sydney bound lanes, between them and the service road, was a well trodden path across the nature strip through a gap in the fence. It was that path that Nadia Ryan (the plaintiff) followed shortly before she was struck by a vehicle driven by the appellant, Mr Pledge. It was frequently used by other pedestrians to cross the service road. It was also located within comfortable walking distance of a marked pedestrian crossing on the Highway controlled by traffic lights. Off the service road was a car park which ran from a point level with the marked crossing and the T-junction on which parking at an angle of 90 degrees to the Highway was the practice. One of the purposes of the dense planting on the nature strip was to shield passing vehicles from the glare of headlights at night.
[22] The provision of the service road and nature strip was part of a scheme for the widening and improvement of the Highway, and the design of the service road and nature strip were all the work of the Roads and Traffic Authority of New South Wales (the RTA). The Blue Mountains Council (the Council) was responsible for the maintenance of the nature strip. It had also designed the car park beside the service road.
[23] During the afternoon of 9 July 1994 the plaintiff, who was then nine years old, her sister and their father, Mr Ryan, crossed from the Katoomba bound lanes of the Highway and reached the nature strip. They passed through the post and rail fence and paused momentarily. Mr Ryan said that he thought that they had stopped about 18 inches to two feet from the kerb of the service road.
[24] It was then that Mr Ryan apparently released the plaintiff’s hand. Mr Pledge was driving his vehicle in a northerly direction, towards Katoomba. His view of the family was partially obscured by vegetation. Mr Ryan’s vision was also reduced. The plaintiff moved forward one or two steps. She was struck by Mr Pledge’s vehicle. Mr Ryan had tried to grasp the plaintiff’s hand immediately before the impact but missed it by about a foot. At this stage the plaintiff was the only one of the family who was on the road surface.
[25] At the time of the accident another vehicle was reversing at an angle of 90 degrees from the car park in front of a hardware store.”

High Court reasons for judgment

“[44] There is no doubt that the Court of Appeal in this case strove to carry out its statutory appellate duty in accordance with the statements of principle that we have quoted. In our opinion it succeeded in doing so in discarding, as causative factors, the absence of any traffic sign, and the provision of parking bays at an angle of 90 degrees to the service road. The reasons for this are comprehensively stated by Ipp AJA. In addition, the proximity of parking bays to a service road is in no way remarkable. A service road is of quite a different character from an open highway. Motorists should proceed with caution along such a road because it necessarily will be used by motorists and their passengers proceeding to and from the establishments which it is designed to service.
[45] We are unable to reach the same conclusion however with respect to the rejection by the Court of Appeal, of the nature, density and location of the vegetation on the nature strip as a causative factor of the collision. It cannot, in our opinion, be doubted that it was a contributing cause. It obscured not only the visibility of Mr Pledge, but also the visibility of the plaintiff and her father. Its presence inevitably brought the plaintiff close to the roadway before she could obtain any useful view of passing traffic. Similarly, its presence produced the same consequence for Mr Pledge with respect to any opportunity that he might have had to see the plaintiff. Its presence would also suggest to any motorist proceeding as Mr Pledge was, that any pedestrian would need to be, and would be, cautious in proceedings through and from it on to the roadway. It is no answer to say that Mr Pledge did not in any event see the plaintiff before the impact and that therefore the presence of the foliage was of no significance. The eye may be attracted by a shape, or a movement, or contrasting colour. Mr Pledge would have had a greater opportunity to catch a glimpse of these phenomena had the foliage been less dense. The denial of that opportunity, by reason of an obstruction in the form of the dense foliage, probably contributed to this accident. The denial of an opportunity, by the presence of an obstruction such as dense foliage, to catch a glimpse of these can and must necessarily have contributed, as the trial judge found, to this accident.
…
[47] First, their Honours had no sufficient basis for preferring what they thought the photographs showed to the evidence accepted by the trial judge and coming from several and opposed sources, namely the plaintiff’s father, Mr Pledge, two police officers and an expert, Mr Wingrove. The circumstances of the accident themselves point strongly to that error.
[48] Secondly, their Honours’ reliance on the calculations that Ipp AJA made was unjustified. They depended on too many imponderables which were really little more than matters of speculation: estimates based on the plaintiff’s father’s evidence as to how long the plaintiff paused before she moved, and how long it took her to walk to the point of impact; that the appropriate extent of clearing of foliage should be 1 metre only, as indicated by the non-binding guidelines; Mr Pledge’s estimated speed; the distance of his vehicle from the plaintiff as she stood on the nature strip before leaving it; and the effectiveness of Mr Pledge’s attempts to decelerate. It is not irrelevant that the calculations in question were not sought to be made during the trial by any party where the assumptions upon which they were based could have been fully tested and explored.
[49] The third error was the failure of the Court of Appeal to have sufficient regard to the utility of the trial judge’s experiences in inspecting the site of the accident and driving along the road towards the accident site, particularly the enhanced utility accorded to it by s54 of the Evidence Act. Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178, a case relied on by Mr Pledge, and which affirmed the special position of the trial judge, was a case in which the trial judge had enjoyed an analogous advantage, of an in-court demonstration. Even before the enactment of the Evidence Act, appeals courts customarily accorded significance to a demonstration or view at first instance. It was not accorded the weight that it deserved here. It is also relevant to the first error that has been identified. It must have supplied to the trial judge the valuable third dimension that the photographs necessarily lacked, and which formed the basis for much of the intermediate court’s exculpation of the RTA and the Council.”

“[52] The question raised by the RTA and the Council in this appeal is whether their failure to ensure that there was a cleared area of 1 metre at the eastern edge of the nature strip contributed to the collision.”

At [66] Ipp AJA said that he considered that Dunford J erred in finding that the failure of the RTA and Council to clear the vegetation on the nature strip to the requisite degree caused the collision. His Honour then went on to deal with the Council’s failure to erect a warning sign and negligence in providing parking bays on the eastern side of the service road at an angle of 90 degrees. At [80] Ipp AJA said that he considered the appeal should be upheld. “There is no need to deal with the other issues that arise and the cross-appeals fall away.”

Second appeal hearing – Court of Appeal

“The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authorities. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of materiel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question.”

“[22] … the provision of the service road and nature strip was part of a scheme for the widening and improvement of the Highway and the design of the service road and nature strip were all the work of the … RTA. The Blue Mountains Council … was responsible for the maintenance of the nature strip. It had also designed the car park beside the service road.”

A part of the Council’s argument now is that it was not liable to the plaintiff because it has not been shown to have been so responsible.

(a) The agreement between the RTA and the Council about the passing of the responsibility for the maintenance of the vegetation on the median strip.

(b) The design and construction of the 90 degree angle parking bay by the Council immediately adjacent to the accident site.

(c) The knowledge of traffic authorities that vegetation encroaching on the roadway could impede sight lines for passing motorists.

(d) The action taken by the Council before the accident to improve sight lines at the other end of the median strip simply by clipping back vegetation.

Motor Accidents Act 1988

“This Part applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.”

Section 70 provided:

“A court shall not award damages to a person in respect of a motor accident contrary to this Part.”

“… the award of damages to the plaintiff related to the injury to him caused by the negligence of Bitupave as road repairer. That award was reduced by 12½% being the amount the trial court thought just and equitable having regard to the plaintiff’s share in the responsibility for the damage. Thus what the plaintiff received as damages was the amount which related to his injury caused by the fault of Bitupave as road repairer less the proportion attributable to the plaintiff’s own fault.
Assuming in the defendant’s favour that the plaintiff’s injury was caused by his own fault in the sense of s69(1) (something about which I have doubts), there was nothing to quantify pursuant to Pt 6 of the Motor Accidents Act in respect of that fault of the plaintiff. The quantification of amount was entirely done in calculating what should be awarded to the plaintiff for the damage caused to him by Bitupave’s breach of duty, which had nothing to do with the Motor Accidents Act. Once that amount was quantified, it was reduced pursuant to the Law Reform (Miscellaneous Provisions) Act 1965 in accordance with the trial judge’s judgment of what was just and equitable having regard to the plaintiff’s share in the responsibility for the damage quantified in the plaintiff’s common law claim, unaffected by the Motor Accidents Act, against Bitupave.”

“(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,
(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims…”

Contribution; the Law Reform (Miscellaneous Provisions) Act 1946 (s5)

“The above conclusion, however, is not the end of the matter. If it were the end of the matter, it would lead to the very remarkable result that the commissioner might be liable to a plaintiff only to the extent of 2,000 pounds, but liable to pay many thousands of pounds by way of contribution to another tortfeasor. In other words, he might, where he was only partly responsible for the damage, be compelled to pay much more than if he were solely responsible for it. But the conclusion so far reached means only that s121 does not operate directly to limit the amount recoverable by the appellant from the commissioner by way of contribution. We have still to turn to s5(c) of The Law Reform Act to see what the appellant’s rights against the commissioner are. His right is to recover ‘contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage’. Mr Mylne said that the commissioner was another tortfeasor who was liable with Unsworth for the wrongful causing of the death of King, and that s5(c) had no bearing on the quantum of the contribution recoverable. But it is, in my opinion, clearly implicit in s5(c) that the amount of the liability to pay contribution cannot be greater than the amount of the primary liability. Contribution can only be recovered from one who ‘is, or would if sued have been, liable’ to pay damages to the person injured. A person cannot be said to be so liable except to the extent to which damages can be recovered from him at law. In any case, I do not think that it could be lawfully held to be ‘just and equitable’ within the meaning of s6 of The Law Reform Act that a person should be ordered to pay by way of contribution to another tortfeasor a larger amount than he could be compelled to pay to the person injured.”

“The question is whether the appellant, in pursuit of his right to contribution, is entitled to recover from the commissioner a sum in excess of that which the plaintiff was entitled to recover against the latter in her action. For the commissioner it is said with some force that it would create an anomalous situation if it should be held that his liability to contribute can exceed the amount of his original liability to the plaintiff whilst the appellant, on the other hand, points out that, in pursuing the cause of action created by s5(c), it is unnecessary for him to show more than responsibility on the part of the commissioner for ‘the same damage’ and, thereupon, to recover a contribution to his own liability which is ‘just and equitable having regard to the extent of’ the commissioner’s ‘responsibility for the damage’. The latter expression the appellant interprets – and rightly so – not as a reference to the extent to which the commissioner might be liable to pay damages to the plaintiff but as a reference to his degree of blameworthiness for the injuries which resulted in the death of the deceased.”

“It is true also that the language of s5(c) has been chosen without regard to the difficulty which arises in the present case. But the right to contribution is dependent upon the fact of liability and it seems reasonably clear that if the plaintiff had recovered judgment against the commissioner for the sum of 2,000 pounds and the commissioner had thereupon paid that sum to her the appellant could not, thereafter, have succeeded in his claim to recover a contribution. In such circumstances it would then have been impossible for the appellant to contend that the commissioner was a person ‘who is, or would if sued have been, liable in respect of the same damage’. If this is so it would be anomalous to a degree to hold that he may now be required to contribute a sum in excess of that amount. This solution of the problem may be regarded as somewhat unsatisfactory but, if it is, it is because the language of the sub-section is obscure and incapable of ready application to the circumstances of cases such as the present. But, on the whole, the provision assumes the existence of a liability in the party from whom a contribution is sought and may fairly be taken to intend that, within the limits of that liability only, he may be called upon to make a contribution to the first tortfeasor.”

Orders

MAA before 1995 Amendments
Definitions in Subs 3(1) included these:

“injury” means personal or bodily injury, and includes:
(a) pre-natal injury; and
(b) (repealed)
(c) psychological or psychiatric injury; and
(d) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.;
"injured person" means a person who suffers injury which is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.
"motor accident" means an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.

Definitions in Part 5 Claims and court proceedings to enforce claims included:

“claim” means a claim for damages in respect of the death of or injury to a person caused by fault of the owner or driver of a motor vehicle in the use or operation of the vehicle;

In Part 6 Awarding of Damages:

s. 69(1) provided:

69 Application
(1) This Part applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

s. 70 provided:

70 General regulation of court awards
A court shall not award damages to a person in respect of a motor accident contrary to this Part.

There is a further definition of inclusion relating to the words “Motor Accidents” in Pt.6 – see s.68, but that definition of inclusion has no present importance.

Definitions in subs 3(1) include:

injury:

(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:
(i) the driving of the vehicle, or
(ii) a collision, or action taken to avoid a collision, with the vehicle, or
(iii) the vehicle’s running out of control, or
(iv) such use or operation by a defect in the vehicle, and

(b) includes:
(i) pre-natal injury, and
(ii) psychological or psychiatric injury, and
(iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.

The definitions of “injured person” and “motor accident” were unchanged.

In Part 5 the definition of “claim” was unchanged.

In Part 6, subs.69(1) and s.70 were unchanged, but provisions relating to objects and interpretation were inserted:

2A Objects of Act

(1) The objects of this Act are:
(a) to repeal the Transport Accidents Compensation Act 1987 and thereby to abolish the scheme for compensating victims of transport accidents (TransCover) established under that Act, and
(b) to re-instate a common law based scheme under which damages can only be awarded after a finding of negligence, and
(c) by the scheme under this Act:
(i) to reduce the cost of the former common law based scheme by limiting benefits for non-economic loss in the case of relatively minor injuries, and
(ii) to introduce a stricter procedure for the making and assessment of claims for damages, and
(iii) to preserve the benefits payable to persons with more severe injuries involving on-going disability, and
(iv) to give full weight to the need to identify fraudulent claims, deter their lodgment and prosecute those responsible for them, and
(v) to encourage recovery from injury and early and effective rehabilitation, where appropriate, as a key feature of the scheme, and
(vi) to encourage the speedy, efficient and effective provision of benefits balanced by the need to investigate claims properly and the need to encourage an early return to employment.
This statement of objects is based on the introduction to the outline of Option 3 in the TransCover Review, published in Motor Accidents: The Act and Background Papers by the Attorney General’s Department, 1989, p 101.

(2) It must be acknowledged in the application and administration of this Act:
(a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and
(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and
(c) that:
(i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and
(ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and
(iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and
(iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law.

2B Interpretation and application of Act by reference to objects

(1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the object of this Act or the provision is to be preferred to a construction that would not promote that object.

(2) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the object of this Act or of the provision concerned.
68A Objects—Part 6

The objects of this Part are:
(a) to control the amount of damages that may be awarded to a claimant for the purpose of ensuring that the scheme under this Act is affordable, and

(b) to achieve this control by the deliberate strategy of placing the burden of ensuring affordability on those who suffer relatively minor injuries so that sufficient funds are available to more fully compensate those who suffer more severe injuries.

Ground 8: does the Motor Accident Act 1988 Pt6 apply to the assessment of damages?

For the appellant it was contended that Pt6 of the Motor Accident Act 1988 applied to, and thus restricted the damages which might be awarded by the court. This submission was based on s69(1) of the Act which said:

"This Part applies to and in respect of an award of damages which relates to the injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.”

The argument was that the award of damages to the plaintiff related to the injury to him caused, in part, by his fault as the driver of the semi trailer in its use. Therefore the Part applied.

I do not agree with this submission. In my opinion the award of damages to the plaintiff related to the injury to him caused by the negligence of Bitupave as road repairer. That award was reduced by 12.5% being the amount the trial court thought just and equitable having regard to the plaintiffs share in the responsibility for the damage. Thus what the plaintiff received as damages was the amount which related to his injury caused by the fault of Bitupave as road repairer less the proportion attributable to the plaintiff’s own fault.

Assuming in the defendant’s favour that the plaintiff’s injury was caused by his own fault in the sense of s69(1) (something about which I have doubts), there was nothing to quantify pursuant to Pt6 of the Motor Accidents Act in respect of that fault of the plaintiff. The quantification of amount was entirely done in calculating what should be awarded to the plaintiff for the damage caused to him by Bitupave’s breach of duty, which had nothing to do with the Motor Accidents Act. Once that amount was quantified, it was reduced pursuant to the Law Reform (Miscellaneous Provisions) Act 1965 in accordance with the trial judge’s judgment of what was just and equitable having regard to the plaintiff’s share in the responsibility for the damage quantified in the plaintiff’s common law claim, unaffected by the Motor Accidents Act, against Bitupave.

Section 69(1) is not effective to make Pt 6 applicable to the plaintiff's claim against the third defendant. There is no occasion to invoke, as an aid to interpretation of s 69(1), the common law principle of construction that ambiguity will be resolved by an interpretation which preserves fundamental common law principles or rights; nor to refer to the law reform reports antecedent to the enactment of the Motor Accidents Act 1988 nor to the second reading speeches, because the subsection is plain and unambiguous: Booker v State Rail Authority of New South Wales (No 1) (1993) 31 NSWLR 393 at 399; Booker v State Rail Authority of New South Wales (No 2) (1993) 31 NSWLR 402 at 410. The plaintiff alleges no fault against the third defendant as either owner or driver of a motor vehicle: its liability flows from negligent acts and omissions in the course of carrying out road maintenance.

5 Objects of Act

(1) The objects of this Act are as follows:
(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,
(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,

Object 1(b), early resolution of compensation claims, had a prominent influence on Young CJ in Eq’s disposition of the appeal, in which his Honour rejected (at para [34]) an argument to the effect that people injured where the cause of the accident was only incidentally related to the use of the motor vehicle were excluded as claimants against funds with which the Act deals. His Honour accepted a contrary submission in which counsel said:
If the construction is given to it as proposed by my learned friend, one would see a number of cases where motor accident compulsory third party insurers would be declining indemnity on the basis that the accident happened due to some other cause and the potential is there for endless debates.

(See also paras [36], [37] and [38]). There is no object in MAA before 1995 amendments which leads in this direction.

[9] The claimant's statement of claim was deliberately pleaded so as to make no allegation at all as to the negligent driving or operation of the bus. The plaintiff sued in negligence, but she said the negligence was that the opponent had placed the sign at the edge of the footpath immediately adjacent to the roadway and that was negligent because it was foreseeable that it would be struck by a vehicle and might injure a person such as the plaintiff and not only that, there was a failure to warn the plaintiff of the dangers that the placing of the bus stop in that position represented.

Although negligence was denied, Young CJ in Eq said at [10]:

…this must be read as denying any negligence as alleged by the claimant, because the line taken by [State Transit Authority’s] counsel in the District Court and before [the Court of Appeal] clearly was that the accident happened as a result of the negligence of the operation of the bus.

The provisions of MACA relating to objects had an influence on the decision, as the review by Young CJ in Eq of the history of the legislation included consideration of the Motor Vehicles (Third Party Insurance) Act 1942, the scheme of MAA in 1989, and the 1995 amendments, including reference to the Minister’s Second Reading Speech on introducing the Bill for the 1995 amendments. His Honour observed: (at [25]) “What has not been directly addressed by the legislation is where there are two or more causes of the injury” and went on to refer to case law relating to that situation, including two recent decisions on the operation of MAA: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2003) 57 NSWLR 321 at 324-5 and Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636, in both of which injury was caused by negligence but there were, on their facts, difficulties of classifying the association between the negligence and the motor vehicle.

And the judges of the law in all times past have so far pursued the intent of the makers of statutes that they have expounded Acts which were general in words to be but particular where the intent was particular.

(Stradling v Morgan (1560) 1 Plowd 199, 75 ER 305 at 312). The Exchequer Barons went on to refer to earlier cases in which apparent literality had been departed from. This passage was cited in Bowtell v Goldsborough, Mort & Co Ltd (1905) 3 CLR 444: see O’Connor J at 457-458. A collection and review of case law on reading down the literal construction of general words so as to give effect to the intention revealed by the terms of a statute as a whole was given in R v Young (1999) 46 NSWLR 681 at 688-690 [17-31] (Spigelman CJ).

In these circumstances I considered that the responsibility for the plaintiff’s injuries should be apportioned between the defendants as 50% to the first defendant, and 25% to each of the second and third defendants.

5 Proceedings against and contribution between joint and several tort-feasors

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):
(a) …
(b) …
(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

(3)…

But it is, in my opinion, clearly implicit that in s.5(c) [of Queensland contribution legislation] the amount of the liability to pay contribution cannot be greater than the amount of the primary liability. Contribution can only be recovered from one who ‘is, or would if sued have been, liable’ to pay damages to the person injured. A person cannot be said to be so liable except to the extent to which damages can be recovered from him at law. In any case, I do not think that it could be lawfully held to be ‘just and equitable’ within the meaning of s.6 of the Law Reform Act [which corresponds to subs.5(2) of LRMPA] that a person should be ordered to pay by way of contribution to another tortfeasor a larger amount than he could be compelled to pay to the person injured.

Taylor J. reached a similar conclusion: see 91-93.