Pledge v RTA & Ors S173/2002 [2003] HCATrans 638 (14 March 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S171 and S172 of 2002

B e t w e e n -

NADIA CATHERINE RYAN by her Tutor HEATHER RYAN

Applicant

and

JACK PLEDGE

First Respondent

BLUE MOUNTAINS CITY COUNCIL

Second Respondent

ROADS AND TRAFFIC AUTHORITY

Third Respondent

Office of the Registry

Sydney Nos S173 and S174 of 2002

B e t w e e n -

JACK PLEDGE

Applicant

and

ROADS AND TRAFFIC AUTHORITY

First Respondent

BLUE MOUNTAINS CITY COUNCIL

Second Respondent

NADIA CATHERINE RYAN by her Tutor HEATHER RYAN

Third Respondent

Applications for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2003, AT 9.31 AM

Copyright in the High Court of Australia

__________________

MR A.S. MORRISON, SC: May it please the Court, I appear with my learned friend, MR S.E. TORRINGTON, for the applicant, Nadia Ryan. (instructed by Stacks The Law Firm With Tom Goudkamp)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR J.M. MORRIS, for the first respondent in S171 and S172 and for the applicant in the other two matters, to put it shortly, the driver. (instructed by Phillips Fox)

GLEESON CJ: I presume it is convenient to all the parties that these two matters be heard together?

MR JACKSON: Yes, your Honour, so far as we are concerned.

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR G.J. GEMMELL, for the Blue Mountains City Council, the second respondent in each matter. (instructed by Abbott Tout)

MR D.L. DAVIES, SC: May it please the Court, I appear with my learned friend, MR S. WOODS, for the Roads and Traffic Authority in both matters. (instructed by I.V. Knight, Crown Solicitor for the State of New South Wales)

GLEESON CJ: Yes, Mr Morrison.

MR MORRISON: Thank you, your Honours. Your Honours, the applicant, Nadia Ryan, seeks special leave in the interests of justice in the particular case. When she was nine she was struck by a vehicle driven by Mr Pledge when crossing a vegetated nature strip using a well-worn path and it is noteworthy that the evidence accepted by the trial judge, Justice Dunford, in the blue book at 9 line 31 was that they were standing about "18 inches to 2 feet" back from the kerb.

There was extensive evidence that her visibility and that of the oncoming vehicle was obscured by vegetation overhanging the roadway and if I might just take the Court to that evidence briefly. There was a bundle of material provided to the Court with extracts from transcript and if I might just take your Honours to some elements of that.

GLEESON CJ: Is that that?

MR MORRISON: That looks like it, your Honour. First of all, page 434Q in the evidence of Mr Pledge, noting that Mr Ryan, the girl's father, was accepted as a witness of truth by the trial judge at 11 line 26 and Mr Pledge - - -

GLEESON CJ: Now, this page numbering has us a bit - - -

GUMMOW J: What tab?

GLEESON CJ: Tab 19, is that right?

MR MORRISON: Yes, tab 19.

GLEESON CJ: Thank you.

MR MORRISON: I will give your Honours the tabs then as we go through. Yes, Mr Ryan was accepted as a witness of truth and so was Mr Pledge, save as to speed. Mr Pledge's evidence, the driver's evidence, was at line Q on page 434:

It was very full. It was very bushy hanging over the kerb maybe 300 or 400 mill.

If we then go to 459K, which is to be found - - -

GLEESON CJ: I notice that there are some photographs here. If you could just give us a look at one of the photographs, it might put this in context, Mr Morrison.

MR MORRISON: Certainly, your Honour. In the bundle of photographs, if I might take your Honours then to tab 1, the photographs marked "D", these were photographs taken approximately two to four weeks after the accident, but were said by the police officers in their evidence to be relevantly identical with the situation at the time of the accident.

In D1 your Honours will see some pedestrian lights. There was a pedestrian crossing across the Great Western Highway, which is to the left, but it did not continue across the service road. The point of accident is up in the vicinity of where that station wagon is to be seen reversing into the road from the parking bay. D2 is a little further along from probably where the pedestrian crossing was, about 50 metres from the point of accident. D3 is closer again and your Honours may see there are some blue markings which are referred to in the evidence indicative of the area approximately where the accident occurred. The blue markings are on the kerb and indicate some markings which were put in paint by the police on the day.

GLEESON CJ: Where does the pedestrian crossing across the Great Western Highway run to on that nature strip?

MR MORRISON: If your Honours come back, the lights on that pedestrian crossing can be seen at D1, but it does not continue across the service road. It empties people across the highway and then - - -

GLEESON CJ: The pedestrian crossing is well back, or back from here?

MR MORRISON: The pedestrian crossing is to be seen on D1 by that post partly obscured by the bushes and then there is 50 metres from there to the point of accident.

GLEESON CJ: Thank you, that rather puts this evidence in context.

MR MORRISON: Thank you, your Honours. If I can then take your Honours to 459 which is in tab 21. Mr Pledge said at L, when asked for an explanation as to why he failed to see the girl before he struck her, his answer was:

Only that my sight was obscured by the foliage.

If we then go to 448 which is under tab 20, again Mr Pledge at E, talking about:

The vegetation hanging over the road.

At G:

The position is that you are aware that there are many pieces of shrubbery between the crossing near the traffic lights and the position where the impact occurred?

A. Yes, sir.

Q. Is it fair to say that as you are in the witness box today you don't recall where it was between the pedestrian crossing and the point where the impact occurred, where this extension of, I think it was, 300 to 400mm was?

A. It is - yes, that's correct.

Q. You agree with that proposition?

A. I agree.

Then 453, which is under tab 21 at line 40, again Mr Pledge:

At the time when this accident occurred there was considerable foliage on either side of where that pedestrian crossing ended and the service road began.

A. Do you mean on the highway side as well as the service road side?

Q. I really mean on the Sydney side or the Katoomba side of the nature strip as you were driving along it?

A. There was considerable foliage. However, where the pedestrian crossing was was considerably clearer than other places along the nature strip.

Q. There was a short break in the foliage, as where the foliage emptied out, am I correct?

A. Yes.

Q. But immediately beside the pedestrian crossing, whether on the Katoomba side or Sydney side, the thick foliage resumed?

A. I don't recall, but to the best of my recollection I would say that that's so, yes.

Then at 454E:

The vegetation which you have described as overhanging the road, that didn't overhang the road in just one location. I take it that it overhung the road in a number of places along this part of the service road?

A. I couldn't tell you for sure . . .

Q. And there were also some breaks in the vegetation -

The last reference from Mr Pledge is at 464 which is under the same tab in which he talks, at T, about the vegetation having been thinned out since the accident and it was not controversial that the Council had, in fact, drastically cut back the shrubbery after the accident.

Mr Ryan's evidence, the father of the applicant plaintiff, was at 178C. That is to be found at tab 9. He says at line C - he has a daughter on either side of him, Danielle on one side and Nadia on the other:

From the corner of my eye I saw something moving, a red object through some shrubbery.

GLEESON CJ: Just a moment. He had come across the pedestrian crossing, had he?

MR MORRISON: No, your Honour. They had crossed at Coghlan Road about 50 metres from the pedestrian crossing. At that point there was no restriction on pedestrians crossing at that point. There was, in fact, as his Honour Mr Justice Dunford noted, a school down Coghlan Road. Coghlan Road was an intersection at right angles to the highway on the other side from the service road. There was a school down that road. There was a well-worn path across the nature strip at that point, so that what was being done by the plaintiff and her father and sister was obviously what many others had done, crossing at that point across the service road to where there was car parking, a hardware store and the beginnings of the footpath which emptied out on to the service road at that point.

There was also no restriction at that time on parking on the Great Western Highway on either side of it, so that someone could have lawfully parked on the east bound on the Great Western Highway and walked across the nature strip to get to - - -

GLEESON CJ: Parking parallel to the kerb.

MR MORRISON: Parking parallel to the kerb, but on the Great Western Highway and walked across the nature strip.

GLEESON CJ: Yes, it was bumper to kerb or front to kerb - I forgot which - on the service road, or in the area - - -

MR MORRISON: Yes, there was an area provided off the service road for parking. Then at 180 Mr Ryan refers to, at line I:

The condition of the vegetation was usually fairly thick and overgrown and sections of it was running over into the gutter and extending onto the roadway in several positions.

Then he is asked about:

the vegetation at the point at which the pedestrian crossing ended -

that is about 50 metres before point of impact in the direction that Mr Pledge was travelling, bearing in mind Mr Pledge was travelling in a westerly direction at about 60 kilometres an hour along the service road - at 180N:

As best I can recall, it was very similar to the area where Nadia had the accident there. It was overgrown and it was difficult to see the pedestrian lights, if I recall, from the driver's position.

Q. You had driven along the service road?

A. Absolutely.

Then he is asked a question:

From the perspective of a driver, what can you tell us about the difficulties of driving on that service road?

and after some further material he answers at W -

It would have been difficult in seeing pedestrians that are actually on the grass verge.

Then at tab 10 184K is the evidence about what was seen immediately before the accident. Mr Ryan was asked:

And what you told them was when you got onto that nature strip or area that you call an island, it was very difficult to see any oncoming traffic from the right-hand side?

A. Correct.

A little further down at U:

Q. I take it what you are saying there was it was very difficult for pedestrians in your position, yours and your daughter's position, to see the oncoming traffic?

A. Yes.

Q. Because of the obstruction to your vision, right?

A. Yes.

Q. And I take it from your own observations of driving along the road that the same obstruction to vision applied in the reverse position for the driver towards pedestrians in the position where you were?

. . .

A. It would be very difficult.

GUMMOW J: The judge accepted Mr Ryan.

MR MORRISON: Yes, entirely accepted him as a witness of truth and relevantly accepted Mr Pledge when he said the same thing. There are some further references, which I will not take your Honours to, but can I just give your Honours the references to them. These are passages in the evidence where Mr Ryan said that he first glimpsed the red object, which he later found to be a vehicle, through bushes and those appear at 185Y to 186B, 241N to P, 245H to K, 251Q and 252N to Z.

GUMMOW J: The judge accepted that - page 9 line 55.

MR MORRISON: That is so, and, your Honours, all of this would not need emphasis if it was not for the fact that the Court of Appeal reversed that finding.

GUMMOW J: Yes, I understand that.

MR MORRISON: Just two other passages of evidence - there were two police officers who attended the scene of the accident on the day and who gave evidence. Mr Mills, who had a been a constable at the time, gave evidence, and that is to be found in tab 1 at 86D where he was asked:

And does the vegetation or did the vegetation at the time of the accident in places intrude on to the roadway?

A. Yes.

At O:

Q. Incidentally, in these photographs -

and that is referring to the photographs to which we have just referred -

is the vegetation similar to the way it was on the day of the accident or is it different in any way?

A. It appears to be similar.

The other police officer was Constable Schneiders and his evidence is to be found under tab 4 at 139X. He describes the photographs in exhibit D, to which your Honours have been referred and says, over the page at 140D:

My recollection at the time of this accident is it is very much the same -

the same as in the photographs. A little further down at H he is asked:

How was the vegetation in the vicinity of where that pedestrian crossing ended and the service road began?

A. The vegetation certainly extended up to and over the kerb side of the service road just prior to the traffic or pedestrian lights.

A little further down he is asked at Q about:

visibility of pedestrians at that point -

that is, the point of the accident and he says:

Well, the visibility of pedestrians certainly is poor. I would describe it as poor . . .

Q. How would you describe it at the point shown in C1 where the two arrows are -

the two arrows being the area in the immediate vicinity of where the pedestrian was struck -

A. I would describe that as not much better. It is still quite poor there. There is a slight gap where the pedestrians go through but the vegetation still extends up to the kerb and you could not see a pedestrian coming off the kerb.

HIS HONOUR: Q. Are you talking about now or back in July 1994?

A. Back in 1994, your Honour.

Two other references from the police officer - at tab 6 page 162 he makes a similar comment in respect of photograph X1 and that shows a similar view to C3. Those were photographs taken on the day of the accident by police officers and, perhaps, it might be convenient to turn to those.

GUMMOW J: No, you are running into a time problem, are you not, Mr Morrison?

MR MORRISON: Yes, your Honour, and I will be very short.

GUMMOW J: Where did the Court of Appeal go wrong? That is primarily our task, I guess.

MR MORRISON: Your Honours, in two respects. There was a clear finding that the second and third respondents, the public authorities responsible for the design, construction and maintenance of the vegetation, were guilty of negligence. What the Court of Appeal did was to overturn a finding based upon the witnesses' evidence, photographs and a view that the trial judge's finding was "plainly wrong", in the words of Justice Ipp. He did so, it appears, on the basis of one photograph in particular, C2, and to a lesser extent, C3.

GUMMOW J: Is there a particular passage where that appears?

MR MORRISON: Yes, your Honour. That appears in his judgment, page 58 of the book, paragraph 42, and he says looking at that photograph and referring to the evidence of Mr Ryan and Mr Pledge, at page 57 about line 55:

To the extent that their evidence suggests that a pedestrian would not have been visible at all, or difficult to see - irrespective of the position of such a driver, it is plainly wrong.

He does so by specific reference to, over the page, photograph C2. In other words, he picks up a particular photograph, concludes that in his opinion, because you could see a man in a white shirt in that photograph, that all the evidence accepted by the trial judge, including the other photographs which showed quite a different perspective, were wrong.

GLEESON CJ: Would you care to comment on page 59 paragraphs 48 and 49 and paragraph 52, the last sentence?

MR MORRISON: What his Honour's process of reasoning appears to be is that because in his view on photograph C2 the view was unimpeded that even if C3 showed that if standing back you could not see a person, that it was not possible to determine when visibility arose. He then goes on in these passages to deal with the RTA and the Council and he seems to be saying that he could not be satisfied on the evidence that because there was no precision in the photographs as to where they were taken from, whether or not vision was, in fact, impeded. He seems to be concluding that you could not be certain from that and, accordingly, any negligence in failing to clear back the metre from the kerb, which was the RTA standard, did not have a causal nexus with the accident.

The difficulty about that approach, your Honours, was that it flies in the face of clear findings which were open to the trial judge and, in particular, it ignores the evidence accepted by the trial judge, not just as his Honour Mr Justice Ipp seems to say, that there was only a brief opportunity for the driver to see the pedestrian anyway, but it ignores the fact that the pedestrians equally, and perhaps even more importantly, were denied the opportunity to see the car driver.

GLEESON CJ: The key part of the reasoning appears to be on page 63 in paragraphs 64 and 65, does it not?

MR MORRISON: Yes, your Honour, and that restates the proposition to which your Honour referred earlier because that conclusion that the collision would have occurred in exactly the same way simply flies in the face of both the evidence and the findings of the trial judge and we ultimately simply say those findings were open to the trial judge as were his findings in respect of the interference with the roadway in relation to permitting parking which would reverse on to a narrow laneway in breach of the Australian standard.

That finding was a finding which was open to the trial judge. Mr Pledge having said, "I was distracted by the reversing vehicle and the possibility of collision with the vehicle coming in the opposite direction", both the trial judge and another member of the court said it was the possibility of a collision not involving Mr Pledge. That really, we say, misses the point. The point was the Australian standard was there to avoid drivers being distracted. That was the very issue which the trial judge had addressed and Mr Justice Ipp, we would respectfully say, missed the point. There was a causal nexus between that breach of the standard and Mr Pledge's being distracted and not seeing the girl until he struck her.

GLEESON CJ: Thank you, Mr Morrison. Yes, Mr Jackson.

MR JACKSON: Your Honours, in our submission, special leave should be granted for a number of reasons which are interrelated, and they are these. The first is that the approach taken by the Court of Appeal, in our submission, is unorthodox in two relevant respects which I will mention in just a moment. The second is that that has the consequence that the applicants have suffered a serious injustice. Your Honours, I am conscious, of course, the courts' decisions do not turn on questions of money, but the effect of the judgment of the Court of Appeal has been that the plaintiff has lost in excess of $750,000. We have to pay almost $1.4 million more.

The two respects I adverted to earlier, your Honours, in relation to the court's approach are these. First, in our submission, the Abalos approach was not followed and this was a case where, one notes in passing, the judge had a view and was able to appreciate the proximity of matters and the effect of a car moving out from the parking area, for example. The second thing, your Honours, is this. The way in which the Court of Appeal dealt with the question of causation really adopts, as amongst tortfeasors, a kind of last opportunity approach.

Now, your Honours, a defendant is liable to a plaintiff if the defendant's negligent conduct is a, not the, cause of the plaintiff's damage. One must, of course, in order to determine whether a particular defendant's conduct was a cause in that sense look to the series of events which took place, but the corollary is not, with respect, completely true. One does not look to the events in series and then say if one person was negligent and that person's negligence was the first or the last event and was a cause in that sense, that is the end of the matter.

Now, your Honours, the ultimate question is rather that which is posed by the contribution provision, namely what is the contribution which is just and equitable having regard to the extent of a person's responsibility for the damage. This was dealt with, your Honours, and dealt with in a way to demonstrate that it applies both to successive as well as to concurrent causes, in the joint reasons of Chief Justice Mason and Justices Toohey and Gaudron in March v Stramare [1991] HCA 12; 171 CLR 506. The passage I wanted to go to, your Honours, is page 512. Your Honours will see at page 512 the paragraph commencing about point 7 on the page where their Honours say, in the second sentence:

These days courts readily recognize that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers.

They then set out, your Honours, and we would invite your Honours to read a passage from the judgment of Lord du Parcq in Grant v Sun Shipping Co, but your Honours will see that particularly he is dealing with the circumstance where there is some later event of negligence and the later event does not excuse those responsible for the earlier negligence. The passage, your Honours, goes through to the end of the quotation on page 513.

The Court of Appeal, your Honours, adopted, in our submission, a contrary approach. Central to the way in which they went about it is the reference at page 59 paragraphs 48 and 49 to the judge's observation that the present applicant would have been able to avoid the collision if he had not been negligent, to put it shortly.

Your Honours will then see that if one looks at the statement made by the primary judge and extracted there, in the context in which it is made it is absolutely clear, with respect, that what he was doing was dealing with the position of the defendant one by one and he was dealing first, as one might expect, with the position of the driver of the colliding vehicle. Your Honours will see that - if I could take your Honours to page 15.

GUMMOW J: This is paragraph 25?

MR JACKSON: Yes, your Honour. Your Honours will see paragraph 25 where he describes what was done and then makes the finding to which reference has been made a moment ago at about line 54 and then, your Honours, he goes on to say at the top of the next page, in the first new sentence:

In these respects the first defendant was negligent and his negligence was a cause of the plaintiff's injuries.

He immediately, your Honours, moves on in the very next paragraph to deal with the other parties and your Honours will see that in the first line of paragraph 26 - - -

GUMMOW J: The trouble is the quotation at 59 leaves out the last sentence of paragraph 25.

MR JACKSON: Yes, your Honour, it does and it is absolutely clear, with respect, that his Honour was dealing with them one by one.

GLEESON CJ: What about the comment that Justice Ipp makes on page 60 in paragraph 52, the last sentence?

MR JACKSON: Your Honour, it is right to say, I think, that the judge did not say specifically that if the vegetation had been cleared that he would have seen her earlier, but what he was saying was the vegetation was not cleared. One of the features that was present was that it was very difficult for him to see. It was difficult for him to see. It was difficult for them to see him in the circumstances in which it appeared.

Now, your Honours, it was not just a question of clearing the vegetation. There was a question of design as well, and his Honour made a finding in relation to that. But, your Honours, the fact that he did not deal with the question specifically is, with respect, in the end, not to any point, we would submit, because it is plain enough that he treated the fact that the vegetation was not cleared back enough to permit vision as being a factor of negligence.

GLEESON CJ: Well, the question is whether it was a cause of the accident.

MR JACKSON: Yes, your Honour, and it is clear that his Honour found that the position and growth of the vegetation was a cause. He said that, your Honours, in a number of passages and your Honours will see, for example, at page 16 lines 25 to 30:

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.

Now, your Honours, his Honour is plainly enough, in our submission, with respect, saying that that was one of the causes and he goes on to say a little later that it was. Your Honours, could I say that he discusses the evidence in relation to the vegetation and then at page 20 paragraph 38 says:

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 -

and your Honours will see the remainder of that paragraph. Now, your Honours, we would submit that one might parse and analyse it, of course, but it is clear, we would submit, that his Honour is finding that the vegetation and the planting of it and the growth of it was a cause.

GLEESON CJ: That is really the point of departure factually between the trial judge and the Court of Appeal, is it not? It is the word "accordingly". Rightly or wrongly - you say wrongly - the Court of Appeal said that the conclusion does not follow from the premise.

MR JACKSON: Yes. Well, your Honour, the position, in our submission, simply is this, that this is a case where the judge heard oral evidence from the driver and the father, each saying the respective view was affected by the presence, in both, of vegetation. There was other evidence to the same effect from independent people and, your Honour, in those circumstances, the observations made by his Honour at paragraph 38 are ones leading, we would submit, relatively inevitably to a finding of negligence.

Your Honours, could I just say, however, three things about it. The first is that the judge regarded the state of the vegetation as significantly restricting the vision of the driver. That is the first thing. The second thing, your Honours, is that he refers specifically to the combination of events and your Honours will see that he refers to the fact that the driver's attention had been distracted by the other traffic movements. Your Honours, the third thing is - and this I adverted to a moment ago - he regarded the failure to maintain the vegetation properly as a cause of the accident.

Now, your Honours, in relation to other aspects of the case, your Honours will see again at page 21 - - -

GLEESON CJ: Just before you pass from that, Mr Jackson, why does it necessarily follow from the fact that the driver's vision was restricted by something that that which restricted his vision contributed to the accident? It might or might not have.

MR JACKSON: It might or might not have, your Honour, but the position was if his vision was not restricted one would expect him to have been able to see at an earlier point what the position was. Now, when I say what the position was, I mean the presence of the pedestrians and it was a question both of design and then, once the use was established, the maintenance of it. But that was not the only aspect of it. One sees at page 21 in paragraph 40 that the judge expressly adopts the evidence of Mr Wingrove and he finds that:

it was negligent design to provide for 90º angle parking, because in those circumstances vehicles . . . necessarily had to back out onto the northbound (or opposite) side of the service road. This created a potential hazard -

and where he refers specifically to the fact that it created a potential hazard:

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 -

and he goes on to say, your Honours, at the top of page 22 that the driver was, in fact, so distracted in this case. Now, your Honours, that is a finding which the judge was, again, perfectly entitled to make.

Now, your Honours, I should just say one other thing about that. What one has, your Honours, is a finding that he was, in fact, distracted by reason of the consequences of negligent design. One has the evidence that what took place was that he saw one vehicle backing out, another coming towards it, was slowed down to see that there was no danger and then they apparently seemed to get out of the problem and then he moved on and almost immediately hit the child, his attention having been distracted by what went on.

Your Honours, the approach taken by the Court of Appeal commences essentially at page 59 paragraph 48. I have taken your Honours to that passage already but your Honours will see that their Honours went on to say in paragraphs 50 and 51 essentially that the degree of pruning should have been at least a metre. That would have given an additional one second to the driver - that is page 61 paragraph 57 - and then to say that with the additional second the driver would not have seen the child - that is page 62 paragraphs 60 through to 64.

This is, if one goes to the words of Hontestroom v Sagaporack, picked up in Abalos, really the Appeal Court doing to a series of events their own workings out, when one is talking about events that took place in a very short space of time in a small area, interrelated, and where people are actually involved in these things and have to engage in reactions. To treat the events as not being interrelated is, if I could use the expression again, really to apply a kind of last opportunity rule as amongst the defendants.

Your Honours have seen - and this appears at page 13 paragraph 20 - that the primary judge accepted the driver's evidence with a minor reservation as to speed. That is paragraph 20. It was clear from the driver's evidence that the events to his right did play a part. Your Honours will see that in the judge's reasons, page 11 paragraph 16 through to page 13 paragraph 19. The events were interrelated.

The next thing I would seek to say is this. The Court of Appeal also really seems simply to have set aside the judge's finding that the provision of the 90 degree parking bays was poor design. The finding at first instance is at page 21 paragraphs 39 and 40. It involved accepting the oral evidence of Mr Wingrove. There are three passages of Mr Wingrove's evidence to which I would take your Honours. They are in the larger book, behind tab 14, the page numbered 268. It is a passage which goes from Q on page 268 through to the next page, between F and G. He said, in particular, at page 269 between F and G:

The 90-degree parking is a distraction but it is a further distraction because there is insufficient room and it creates greater conflict.

GLEESON CJ: What was the alternative to 90 degree parking?

MR JACKSON: The alternative, your Honour, I am just about to come to, but it could have been angled parking which allowed people to move in such a way that much less of them was on the road itself. He refers to that in, I think, the next passage. I was going to, behind tab 15, page 322. He said at the bottom of the page:

the fact is that the parking bay was not the most helpful thing there because it was - it wasn't - the road was the wrong size for it.

Then page 386, behind tab 16, is where he has the alternatives. I think the page number is blocked out, but it is the first page behind tab 16 from about P through to B at the top of the next page. He said those things were alternatives in this case. Your Honours, the findings made by the judge reflecting that evidence were dismissed by the Court of Appeal - - -

GLEESON CJ: They also said there was a causation problem, I think.

MR JACKSON: Yes, your Honour. It is at page 64 paragraph 72 through to 79. Paragraphs 74 and 75 really give rise to the issue I said at the start of our submissions. Paragraph 76 is the same, but when one goes to paragraph 77, that is, with respect, a rather curious approach. Maybe it is a hazard that occurs in everyday life, but some of the hazards when they mature, as this one did, are ones that give rise to claims in negligence and they give rise to apportionments.

I should just say one further thing in relation to the vegetation. One of the effects, of course, was not just that the vegetation obscured the driver's view. It obscured the pedestrian's view. The pedestrian, of course, in the particular case was a little girl. When I say "a little girl", she was tall for her age, but not as tall as her father and he had difficulty viewing. Your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Hislop.

MR HISLOP: Your Honours, the trial judge made a number of key findings, in our submission. He firstly found that the vehicle which Mr Pledge was driving had entered the service road about 180 metres from the place where the accident took place but as he approached the crossing, which was 50 to 60 metres away from the point of impact, he took his foot off the accelerator and that, whilst looking at the vehicle that was backing out, his attention was diverted to the right. He was not looking ahead; he was not looking to the left and he did not see the girl until his vehicle actually impacted with her, and it was only at that time that he turned his attention to straight ahead. His Honour also found that if he had been looking to the left, he should have seen the plaintiff and would have been able to avoid the collision.

Against those key findings his Honour also found that the vegetation which was in place was appropriate and necessary to have screening and that the vegetation was an acceptable way of providing the screening. His Honour in those circumstances really had created a situation where, so far as the cause of the accident was concerned, it was solely the result of the fact that the driver was looking at all relevant times to the right and did not look to the left. Therefore, the vegetation played no role whatsoever in the impact that then arose. His Honour did not in any real sense direct himself to the question of causation. The only point where it appears to have been dealt with by him was at page 24 at about line 55 where he said:

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.

GLEESON CJ: The last point that Mr Jackson made against you, as I understand it, was that whilst it might be true that from the driver's point of view the driver would not have acted differently if the vegetation had been less dense, but from the point of view of the plaintiff and her father, they would have acted differently if the vegetation had been less dense.

MR HISLOP: The situation was that the father was looking elsewhere, bending down to the other child, but even in so doing he glimpsed the red vehicle. His evidence also was that he could have seen the red object if he had looked to the right.

GLEESON CJ: The accident was a result of a combination of two circumstances. It was the result of the car and the plaintiff being on the road at the same point, so it was the conduct of the driver and the conduct of the plaintiff that resulted in the accident.

MR HISLOP: Yes, and there was no evidence that the plaintiff looked to the right at all. The clear inference from the evidence was that she just walked straight onto the road without looking at all, so again, we would say, causatively the vegetation was irrelevant. That is the way the Court of Appeal approached it because it is clear that a concept of bringing about the circumstances, which is all his Honour said in relation to causation, is not a proper test and he does not deal with or explain the question of causation in any way. What Justice Ipp then did in his judgment was to demonstrate that the presence of the vegetation was truly irrelevant because of the fact that the driver at no stage looked to the left at any relevant time.

GLEESON CJ: Where does Justice Ipp deal with the question of whether the presence of the vegetation made any difference to the conduct of the plaintiff and her father?

MR HISLOP: I do not know that he does because I do not believe that that was raised in the argument in the Court of Appeal. In any event, it would not have mattered because, as I have already said, the evidence was that the girl stepped straight onto the road. There was no evidence that she looked or her vision was in any way obscured. We say that so far as the approach of the Court of Appeal was concerned, it was to deal with a matter which had not been properly dealt with by the trial judge and then, having regard to the facts and other issues in the matter, to determine as a matter of fact that the causative link was lacking.

The same is true in relation to the parking bay situation. His Honour had found negligence in relation to the parking bays and he dealt with that very shortly at page 21 line 20 to page 22 line 10. He really does not give any true explanation in that material as to why he concludes as he does and once again he gives no consideration to the question of causation save to the extent it is wrapped up in the paragraph to which I have already referred the Court. Against that background the court was not satisfied that there was negligence in relation to the - - -

GUMMOW J: They have hardly dealt with causation either.

MR HISLOP: I am sorry, your Honour?

GUMMOW J: The Court of Appeal hardly dealt with causation in relation to the traffic bays either - paragraph 75.

MR HISLOP: Justice Giles, for example, specifically deals with it at page 49 in a separate note.

GUMMOW J: Justice Meagher agreed with Justice Ipp. Justice Ipp does not really deal with it - that is 65.

MR HISLOP: Your Honour, I would say two things. Justice Giles specifically deals with it and Justice Ipp does deal with it at page 65.

GUMMOW J: Yes, I know, paragraph 75.

MR HISLOP: Yes, so it is dealt with and determined adversely to the plaintiff.

GUMMOW J: It just repeats the mantra, "common sense basis".

MR HISLOP: When you think about it, if you have a situation where vehicles are angle-parked or they are 90 degree parking or there is parking along the kerb, if any of those vehicles seeks to move out, it is going to obstruct a vehicle approaching along the left-hand side of the road, and that is exactly what happened in this situation.

GUMMOW J: Anyway, what was the passage in Justice Giles - at page 49, is it, paragraph 3?

MR HISLOP: Page 49, your Honour, yes.

GLEESON CJ: You get the impression, with respect, that Justice Giles thought that this was a point Justice Ipp had not dealt with adequately.

MR HISLOP: I do not know that that is necessarily so, your Honour, because Justice Giles also was not satisfied that there had been any non-compliance with the standard. The standard of course was not compulsory and it could be applied in some situations and not in others and so on and so forth. Justice Ipp was prepared to accept that the standard may have had an application but felt that there was no negligence because it was not a compulsory standard and because it would not have caused the situation that arose. Justice Giles was not even persuaded that on the correct application of the standard, 90 degree angle parking was contraindicated and he went on to give some additional reasons as to why he considered that there was no causative link.

GLEESON CJ: One of the consequences of capping damages in relation to certain kinds of defendant is that plaintiffs' lawyers are forced to exercise some imagination in relation to finding defendants whose liability is not capped.

MR HISLOP: Yes. As regards the question of signs, which was another alternative, that was put as alternatives of speed or a note to slow down. The trial judge dealt with that very briefly at 22 lines 15 to 25 and again did not deal with causation. The Court of Appeal rejected that argument for a number of reasons which appear at page 63 of the application book and also on a causation basis. Mr Pledge, the driver, was very familiar with this area, he knew of it and he conducted himself in a certain way, and a sign simply telling him "Slow down: Pedestrians" or something of that nature, which was one of the options put, would have made absolutely no difference, in our submission, and in the Court of Appeal's opinion to his behaviour on that occasion.

So that, in essence, our submission is that the trial judge had failed to give adequate reasons for his findings of negligence and he had failed to consider the question of causation properly or at all. The Court of Appeal has the powers and duties of the trial court under section 75A and it can draw inferences, make findings of fact and make whatever order ought to have been given or made. The Court of Appeal redetermined those issues which had not been properly or fully determined in the court below and reached a decision which, in our submission, was open to it which is a purely factual one and which does not involve any question of contribution or matters relating to that because that stage was never reached. It found that there was no negligence or no causative link between any breach of duty and the injury that was sustained.

So for those reasons, in our submission, it would be inappropriate to grant leave to appeal in this case. So far as the factual findings in the Court of Appeal are concerned, they accorded with those in the trial court. The trial court found that the driver, if he had been looking to the left, would have seen the plaintiff in time to have stopped. To that extent the trial judge did not accept the evidence of Constable Mills and Constable Schneiders to the effect that there was such an effect on vision that she would not have been seen if he had been looking.

GLEESON CJ: When you say "looking to the left", hopefully most drivers look ahead.

MR HISLOP: He was neither looking to the left nor ahead. He was looking to the right, on the trial judge's findings. So that one can see there really is no departure in essence by the Court of Appeal from the factual findings of the trial judge, and thus Abalos and cases of that nature are never engaged. He was never looking straight ahead, he was never looking to the left; he was looking only to the right. They are the findings of the trial judge and in the light of those findings, as I say, Abalos and that are not engaged and one is left simply with a situation where the trial judge did not properly consider various aspects of the matter. The Court of Appeal then intervened, as it was bound to do under section 75A, and reached factual conclusions which, in our submission, are correct.

GLEESON CJ: Is it fair to say that your argument is that the Court of Appeal did not apply some kind of doctrine of last opportunity; they just found that the accident was so comprehensively the fault of the driver that there was no causal relationship between your client's negligence in relation to the vegetation?

MR HISLOP: If there was a breach of duty by our clients and it was not causative, yes, I think in essence, your Honour, that is the position we would take, that one never gets beyond the stage of finding that there was no causative negligence on the part of anyone apart from the driver, and therefore questions of contribution, apportionment and the like are simply not engaged. If it please the Court, they are the submissions.

GLEESON CJ: Thank you. Yes, Mr Davies.

MR DAVIES: Your Honours, the starting point for the Court of Appeal's consideration was the trial judge's finding at paragraph 25 of his judgment which they set out in paragraph 48 on page 59. The Court of Appeal notes that that finding was not challenged and that Mr Pledge's vision was for some significant distance not impeded. The problem then was what should happen about the wrong planting, the wrong design, of the vegetation. The trial judge finds that there was negligence in that regard and also finds some measure of contribution as a result of it without really considering the causal connection between that negligence and the accident in this case.

GLEESON CJ: The Blue Mountains City Council was responsible for what, the vegetation or the parking bays?

MR DAVIES: They were responsible for both. They were responsible for pruning the vegetation and the design of the parking bays.

GLEESON CJ: Where does your client come into it?

MR DAVIES: We designed the vegetation.

GLEESON CJ: No, I do not think you designed the trees. You provided a design which allowed for vegetation?

MR DAVIES: That is right, and where it was to be planted and what. The trial judge found that that design was negligent because the trees would grow up to overhang but, your Honour, that was the only negligence that - - -

GLEESON CJ: Who was responsible for pruning the trees?

MR DAVIES: The Council.

GLEESON CJ: The trees would grow up to overhang if they were not pruned.

MR DAVIES: That is right. Your Honours, what the trial judge did not do was what Justice Ipp sets out in paragraph 52. He did not consider the causation question of whether, if the vegetation had been planned back one metre, as it ought to have been on the expert evidence, that would have made any difference to the happening of this accident. That is the exercise that the Court of Appeal then embarked on in taking undisputed evidence. This is where we say there is no Abalos point at all because the trial judge made certain findings which the Court of Appeal merely adopted to work out the sight lines and the timing for visual purposes. The trial judge, for example, found at paragraph 34 that the driver was travelling at about 60 kilometres an hour. The trial judge found at paragraph 58 that the pedestrian crossing was about 50 metres back.

GLEESON CJ: Mr Davies, what would be the consequence if a court came to the conclusion that the over-exuberant vegetation did not impede the vision of the driver for the simple reason that the driver never looked but that it did impede the vision of the plaintiff and her father? Is that an issue that was addressed either by Justice Dunford or by the Court of Appeal?

MR DAVIES: Your Honours, I do not think it was addressed in that way at all, but what Justice Dunford found at paragraph 49 on page 25 - and this was an important finding - was that the plaintiff:

left the grip of her father's hand . . . and stepped out onto the service road . . . without looking.

So she was out of the father's control. His ability or not to see ceases to be relevant.

GLEESON CJ: I am actually a little more interested in the position of the father than the child, because children do this sort of thing but it is the father who let her hand go and that may be because his vision was impeded.

MR DAVIES: I think the evidence was that as they approached the gutter on the service road he released her hand, which was before the point that he had stopped and said his vision was impaired by the bushes on the right. So that it had happened relevantly before any impairment of vision. That tends to be supported by the trial judge's finding at paragraph 49. The father does not say, "I released her hand because I didn't believe there were any vehicles coming", or, "I couldn't see that there were any vehicles coming, so I released her hand". So her presence on the roadway is unrelated to the impediment that the father says he had when he chose to look.

Your Honours, that supports the result that the Court of Appeal achieved, approaching it from the driver's point of view in any event, that if the vegetation had been back at the level it ought to have been, he still would not have seen the plaintiff or her father because he had been distracted for a short period of time even at that stage.

GLEESON CJ: Was the finding of the Court of Appeal, right or wrong, based on the factual conclusion that the conduct of the driver, that is, in not looking ahead or to the left, was such that it displaced any possible causative relationship between the state of the vegetation and the accident?

MR DAVIES: In a sense, yes, but the way they said it was that the negligence of the Authority was not causative because the accident would have happened in the same way even if they had done the right thing. So it was not so much a matter of displacement. The accident simply would not have happened if they had done the right thing.

GLEESON CJ: I am sorry, I think you mean the accident would still have happened if they had done the right thing.

MR DAVIES: I am sorry, the accident would still have happened. That is really the answer to Mr Jackson's last opportunity point because there is no suggestion in the judgment that the Court of Appeal was talking about displacing one cause for a greater cause and more immediate cause. We say in that regard that the Court of Appeal did not act in breach of Abalos; it simply acted on findings that the trial judge had made and there was no suggestion in their judgment by the approach that the last opportunity rule was trying to be reinstated. Apart from the injustice suggested of a smaller verdict for the plaintiff and the fact that the defendant is required to pay all of the verdict as opposed to the Authority sharing in it, there is no other general point of principle in the case.

GLEESON CJ: I do not think it is suggested that there is a general point of principle in the case. Mr Morrison put his argument on the basis of the interests of justice.

MR DAVIES: It had been suggested at one point that there was a particular point of principle arising out of the view that the trial judge took.

GLEESON CJ: I do not understand that to be pursued.

MR DAVIES: If your Honour please. Those are my submissions.

GLEESON CJ: Thank you. Yes, Mr Jackson. You have a right of reply.

MR JACKSON: Your Honours, may I just say this. If one looks at page 20 of the application book, one sees in relation to the vegetation that the judge at first instance found at paragraph 38 that it:

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.

Your Honours will also have seen at the bottom of page 21 and the top of page 22 that the judge specifically found that the distraction caused by the design of the parking bay and the events referred to was exactly what had happened. So there were findings about what had happened. For our learned friends to say the Court of Appeal did not depart from any of the findings made by the primary judge is not, with respect, correct. It is not, with respect, correct because the judge made specific findings about the effect of the other movements.

Could we also say this, that it is right to say of course that in one sense vegetation was an acceptable way of providing screening, but it was a question of what vegetation was there and what was planned to be there. If your Honours go to page 18 at paragraph 33, in the third line of that paragraph the judge said:

it was appropriate and necessary to provide some form of screening, and vegetation is a generally acceptable form of such screening.

Then he goes on to describe the guidelines and the expert evidence that had been given and it was said that it:

should not extend up to, or over the kerb as this did, but should be set back -

and your Honours will see the remainder of what is set out in that paragraph. Your Honours will also see by what appears that it was not just a question of being back one metre; it was a question of being back at least one metre or whatever else was necessary to ensure good vision.

There are two other references we would seek to give. One is at page 25 paragraph 49, where your Honours will see a reference to the position of the plaintiff herself and the judge's view in the second sentence of it about the probabilities in relation to her position, and also at page 26 paragraph 51, where your Honours will see specifically between lines 15 and 20 that his Honour found that the design of the parking bay had contributed to the problem.

The final thing I would seek to say is this, your Honours, that our learned friend Mr Hislop said that the vegetation really played no part, but if one looks at the events as found to have happened by the primary judge, if the vegetation played no part because he was looking to the right, then there was a case of negligent design in respect of the parking area and it did not follow that the Council should be relieved from liability.

GLEESON CJ: Yes, Mr Morrison.

MR MORRISON: Your Honours, we would seek to make two points in reply. First of all, it was suggested by my learned friend Mr Davies that the child let slip her father's hand at some point prior to the obscuring of vision becoming relevant. The answer to that is to be found at page 9 line 46 in the trial judge's judgment, and one sees the sequence of events there very clearly. The evidence accepted by his Honour was at about line 26:

they moved across the nature strip until they were approximately 18 inches to 2 feet from the kerb -

At that point they stopped briefly - and I summarise. Commencing at line 45:

Having stopped, he released the pressure on the children's hands and Nadia withdrew her hand from his . . . From the corner of his eye he saw a red object moving through some shrubbery to his right.

The whole of this, as Justice Ipp said, took about a second. The critical point is that they are stopped, they are 18 inches to two feet from the road. Mr Ryan relaxes the pressure on his daughter's hand, she slips his hand, steps out onto the road. Whether or not she would have reacted differently we will never know as a consequence of her brain damage, but the inference open to the trial judge that the father would have acted differently if he had seen that red object which he glimpsed belatedly through the bushes earlier is a very obvious one and one which was open to him to accept.

GLEESON CJ: Where do we find him drawing that inference?

MR MORRISON: We would say that it is clear that he emphasised that it was visibility both ways - that is, driver of pedestrian and pedestrian of driver - at, for example, page 19 line 15.

GLEESON CJ: Is one of your criticisms of the reasoning of the Court of Appeal that they concentrated on the effect of the vegetation on the driver to the exclusion of the effect of the vegetation on the pedestrian?

MR MORRISON: Yes. The second point we wish to make in reply related to the reasoning in regard to the vehicles parked in the bay provided off the road. Your Honours should be aware that the Australian standard provided a range of parking from parallel parking to 90 degree angle parking, depending upon the width of the road, because that affected how far vehicles came out into the road. In this particular case the effect was to block the whole road. So that when Mr Justice Giles at paragraph 3 said there was no causal nexus because the imminent collision was between the reversing vehicle and a vehicle coming in the opposite direction, that ignored the fact that at a speed of something close to 60 kilometres an hour, Mr Pledge was also approaching that situation. To ignore the effect on him seems to defeat the whole purpose of the Australian standard in terms of causation.

GLEESON CJ: That aspect of the case concerning the parking bays does not affect either respondent separately, does it?

MR MORRISON: It affects the Council separately. The parking bays were designed - - -

GLEESON CJ: I mean by that that if we were to form a view that there may be some substance in your argument about the vegetation but that the case in relation to the parking bays was not so persuasive, that would not produce the result that you would deal differently with either of the respondents in this application.

MR MORRISON: It would not, your Honour, because, although the design of the vegetation was the RTA's and the maintenance for the first six months, that maintenance was, his Honour found, handed over to the Council and not taken up by the Council after that six months. So the Council is involved in any event. If it please the Court.

GLEESON CJ: Thank you. We will adjourn for a couple of minutes to consider the course we will take in this matter.

AT 10.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.46 AM:

GLEESON CJ: In these matters there will be a grant of special leave to appeal. I presume the case will take a day?

MR JACKSON: Yes, your Honour. I have a suspicion simply because there are four parties that it might take a little more than that, but we will endeavour to - - -

GLEESON CJ: We will give it a day.

AT 10.46 AM THE MATTERS WERE CONCLUDED