URBAN TRANSIT AUTHORITY v PURCELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, MEAGHER and HANDLEY JJA 7 May 1993, 11 February 1994 [1994] NSWCA 329 APPEAL from Common Law Division — Plaintiff, when boarding bus, injured by dangerous pipe — Sued Municipal Council, Road and Transport Authority (RTA) and Urban Transit Authority (UTA) — Pipe at bus stop in dangerous condition for several months — Action based on negligence. Held: Council and RTA not liable — UTA liable — Liability of public authority for failure to remove dangers on public street — Knowledge of danger — Availability of resources. Mahoney AP On 30 June 1987 the plaintiff was injured when he came in contact with a jagged piece of metal projecting seven to ten centimetres from the ground. The metal was projecting from the ground at a bus stop. The plaintiff was hurrying to catch a bus, struck the metal and fell. He sued (as they were described in the proceedings) the Urban Transit Authority ("UTA"), Randwick Municipal Council ("the Council") and the Roads and Transport Authority ("RTA"). He contended that each was liable in negligence and/or nuisance. His claim raises issues of some importance and difficulty in respect of the liability of public bodies in the execution of their public duties. At the trial and before this Court, nuisance was not argued as a separate basis of liability. The trial judge recorded that counsel for the plaintiff made no submissions as to a distinct liability for nuisance. Nuisance was referred to in passing in the argument before this Court but it was not separately suggested for the plaintiff as a basis of liability. I shall therefore confine what I say to the issue of negligence. On 9 March 1992 McInerney J found in favour of the Council and RTA but against UTA. He awarded the plaintiff $134,818.80 damages. UTA has appealed to this Court against the judgment given against it. The plaintiff has cross appealed, claiming judgments against the Council and RTA. UTA has also appealed against the quantum of damages awarded to the plaintiff. The facts are detailed in the judgment of Meagher JA. I shall refer to them only as far as it is necessary to indicate why I have reached the conclusions that I have. The plaintiff suffered his injuries at or near the bus stop. He suffered them while he was in the course of approaching a UTA bus to board it. Some considerable time before, a metal pipe had been erected by RTA to mark the end of the bus zone. It had been damaged in a motor vehicle accident several months before 30 June 1987: a motor vehicle had left the road, struck the pipe, and damaged the fence on the other side of the footpath which divided the road from a steep slope leading down to the water. Following the motor vehicle accident, the fence was repaired by the Council. It was not clear from the evidence what was the state of the pipe immediately following the accident. Having regard to the state of it on 30 June 1987, the probability is that the pipe was broken off in the motor vehicle accident or at least 2 UNREPORTED JUDGMENTS was so damaged that it was fractured and the top portion of it was able to be detached and taken away. What was left was a jagged end of pipe irregular in shape projecting from the footpath. The pipe was a danger to persons using the street. The state of the pavement and the pipe were apparent to anyone in the vicinity who was minded to examine them. It constituted a plain and obvious danger. It could of course be seen by persons walking near it on the path. The plaintiff's son said that it could be seen from a distance of about 50 yards on the other side of the street. And it was apt to cause serious injury to a person who inadvertently came against it. If he caught his foot on it, he could fall; if he scraped against the jagged edge of it, it could tear his flesh. It was in a position where it was apt to cause injury. But a person walking along the street might fail to notice it. Persons waiting at the bus stop and moving to board a bus might well not see the obstruction at that level, particularly if it was dark or if there were several people at the bus stop at the same time. At the trial, there was a contest as to, inter alia, three matters: (a) who erected the metal pipe; (b) whether the defendants knew of the damaged state of it prior to the accident; and (c) who had the power and/or responsibility to repair or remove it. (a) It is now, if not common ground, at least apparent that the pipe was erected by a predecessor of RTA at the request of UTA or a predecessor of it. (It was accepted that RTA and UTA were responsible for what was done or not done by their relevant predecessors). There was evidence suggesting a formal or informal arrangement of consultation and perhaps more between those authorities concerned with roads of the kind of that in question and with the signs to be erected on them. It is, in my opinion, clear that the Council had no part in the erection of the pipe. (b) In its undamaged state the pipe did not create a relevant danger. In its damaged state, it did. The defendants did not accept that, prior to the accident to the plaintiff, any of them knew that the pipe had been damaged. It was not shown that the Council knew of it. The Council records showed that it came to the knowledge of an officer of the Council on or about 1 September 1987, ie, some months after the plaintiff was injured. The judge concluded that probably the Council did not know of it before. It was contended for the plaintiff that it should be inferred that the Council was aware of the damaged pipe prior to the plaintiff's injury. It was suggested that the event which caused damage to the pipe also caused damage to a railing fence adjacent to it, that the Council had repaired the railing fence prior to the plaintiff's injury, and that it should be inferred that those who, for the Council, had repaired the fence must have seen the damage to the pipe. Reference was made to the fact, as it was suggested to be, that the rest of the pipe and the sign on it had been taken away by someone and the suggestion was that this had been done by or on behalf of the Council. I do not think that the learned judge was satisfied - at least he did not find - that the Council knew of the damaged pipe prior to the plaintiff's accident. On the evidence, I would not be satisfied that the Council did know the state of it at the time of the plaintiff's accident. His Honour held that RTA did not know of the damage to the pipe prior to the plaintiff's accident. There was no direct evidence that it did. I agree with the conclusion of the trial judge that it was not aware of it. URJ URBAN TRANSIT AUTHORITY v PURCELL (Mahoney AP) 3 The trial judge concluded that UTA, through its bus drivers, did become aware of the damage to the pipe prior to the plaintiff's accident. In his judgment, his Honour said: "Mr Evatt referred to the evidence that the bus zone was frequented by buses owned and operated by the third defendant. Many of these buses, it is said, whilst under observation, stopped adjacent to the remains of the sign in question to allow passengers to alight and board the bus. From this material I was then asked to infer that it was used so frequently that employees of the third defendant would have noticed the dangerous condition of the stump in question. It seems probable that such would be the case, bearing in mind that as the sign delineated a bus stop zone it would be obvious to drivers pulling up in that area that the top part of the sign was missing and, in my view, would have noticed, or ought to have noticed, what I believe to have been the dangerous condition of the stump. The evidence in this respect was that it could be seen 50 metres away on the opposite side of the road. It was further submitted that whereas the signs may legally be the property of the second defendant and placed there by the second defendant, they were placed in position to enable the third defendant to carry out its statutory duties as a public transport authority." His Honour's use of the words "... would have noticed, or ought to have noticed..." suggest some ambiguity in that finding. I shall refer subsequently to the significance of his Honour's findings. (c) I come now to the issue on which there was most contest, viz, the power and responsibility to repair the damaged pipe. In my opinion the Council did not have the responsibility to repair it. The road was vested in the Council. It has been assumed that the footpath was so vested. The Council has the power to repair the relevant area and so could, if it chose, repair or remove the pipe. However, it is settled for this Court that, in general, a council is not liable for failure to repair or remove a danger upon a highway so vested in it: see Buckle v Bayswater Road Board (1937) 57 CLR 259 at 267 to 269, 274; Gorringe v The Transport Commission (Tasmania) (1950) 80 CLR 357; see also Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232. A council may be liable to repair an artificial structure which it has placed on the roadway. However, it is not conventionally seen as liable to repair or remove matters of that kind placed there by others. In Hughes v Hunters Hill Municipal Council I suggested the possibility of qualifications to this conventional position. However, the consequences of holding that a council is liable to repair such matters would, I think, be considerable and might well involve a significant re allocation of council resources. The significance of the resources of a defendant in negligence and similar torts lies at least in two things. First, it is of significance in the application of existing rules of tort liability, eg, negligence where liability is determined by or by reference to a concept of reasonableness. And, second, it must be taken into account if a court takes upon itself the reformulation of a particular rule of law, eg, the circumstances in which a highway authority is to be responsible for damage resulting from the non repair of a highway. In cases of the first kind, the resources of an actual or potential defendant are of relevance in determining, for example, what is the content of a duty to take reasonable care for the safety of others or whether, in a particular case, the precaution which has in fact been taken was sufficient to satisfy such a duty. 4 UNREPORTED JUDGMENTS Thus, an employer is, in general, liable to take reasonable care for the safety of its employees. If there is a recognised danger which can be removed by the expenditure of a very large sum, it will be necessary for the courts to determine, as a matter of principle, whether the duty to take reasonable care for the safety of employees extends, or does not extend, to require the expenditure of a sum beyond the limited resources of an actual or potential defendant. The relevance of resources in determining whether, in a particular case, a defendant has acted reasonably has been considered by this Court in Cekan v Haines (1990) 21 NSWLR 296: see eg, at 312 et seq. In that case the court considered what resources the existing law of negligence required to be devoted to the care of an alcoholic prisoner in a police station. It had been submitted that ongoing surveillance of alcoholic prisoners was required. In that regard I said: at 312 to 313: "This approach, if pursued to its end, would raise for consideration the question of the extent of the resources which, in order to discharge the duty of care imposed on it, a government must devote to the elimination of the risk of injury to those which it has in custody. In some cases, the issue is whether Government has done what it should with the resources, facilities and personnel that it has: whether, for example, the person who was to supervise prisoners did what he should have done or negligently failed in what he should have done. In such cases, the question whether Government should have used additional resources is not in issue. But, on such an approach, the present case involved a different question. ..To provide such would, so the suggestion would be, require that Government devote to the care of alcoholic prisoners more resources than presently it does. And, on this approach, it would be necessary to determine whether the common law duty of care which Government has in respect of alcoholic prisoners can or did require that Government devote additional resources to that aspect of public activities. . it would be necessary to determine whether the discharge of the Government's duty of care required that additional public resources should be diverted to or used in the provision of such supervision. And the provision of resources for that purpose might involve the diversion of them from purposes which, in the exercise of a responsible political judgment, Government might see as having priority over the supervision of prisoners. Counsel were not able to refer the court to any judicial consideration in Australia of questions of this kind. They are apt to arise, not only in the context immediately involved in this proceeding, but in other contexts. Analogous questions may arise in determining the extent of the precautions which a local council must take in ensuring that the terms of a building consent have been complied with. Thus, it may be necessary to determine whether and to what extent the discharge of its duty of care requires expenditure of additional resources on the employment of more building inspectors or other staff for that purpose: cf generally Sutherland Shire Council vy Heyman (1985) 157 CLR 424. It may be necessary to consider what resources must be devoted by a local authority to ensure that the information services voluntarily made available to the public in respect of town planning and other matters are accurate: cf generally L Shaddock and Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225." URJ URBAN TRANSIT AUTHORITY v PURCELL (Mahoney AP) 5 Some indication of the practical effect of the imposition of duties of this kind is seen in the present case. If a council is to have the duty to keep a highway in repair, that duty may operate irrespective of what the council knows or only in respect of lack of repair of which the council has notice. But, even if it be the latter, there would presumably be some duty upon the council to inspect the state of repair: the duty otherwise would be anomalous. But the cost of imposition of a duty to inspect would be apt to be great. In the present case, consequent upon a suggestion that RTA might have a duty to inspect the condition from time to time of works erected by it on public highways, its witness ventured an estimate of the cost of such inspections. The learned judge concluded that it "did not have the financial resources necessary to carry out regular inspections. In order to carry out monthly inspections, a budgetary allocation of some $22 million would be required which is over 22 times the actual budgetary allocations'. It is not necessary to consider the degree of accuracy of estimates made in this way. But what was said indicates the impact of duties of this kind. Analogous considerations arise where the court is asked to formulate or reformulate a new principle of law. In Cekan v Haines, I illustrated problems of this kind by reference to the Heyman and the Shaddock cases. Similar problems have been said to arise from the standards of care required of local authorities in the conduct of swimming enclosures and like facilities: cf Grennan and Anor v Pennington and Anor; Inverell Municipal Council v Pennington and Ors (Court of Appeal, 21 July 1993, not yet reported). Problems such as those referred to in Hughes v Hunters Hill MuniciPal Council may, perhaps, be sufficiently dealt with by modifications to or qualifications of existing principles. But where, as here, liability of the Council would depend upon a reformulation of the rule governing the liability of a council to repair a defective highway, it is, in my opinion, proper for the court to have regard to the resources, or re allocation of resources, apt to be called for by such a change in the law. I do not think that it is for this Court to attempt such a change. I come now to the position of RTA. The submission suggested, and I shall for the purposes of dealing with the arguments accept, that RTA had the power and possibly the duty to erect the pipe where it did. I shall assume also that it had the power to repair any pipe so installed by it. It was not submitted - at least, I do not accept - that the legislation regulating its activities imposed by express terms a duty to keep such pipes in repair. It had no doubt the power to do so but a duty was not in terms imposed. Therefore the plaintiff can succeed against RTA only if a duty is to be implied or imposed by the law and that duty was operative in the present circumstances. There is, I think, some attraction in the view that, if a public authority erects a pipe in a public place, it has a duty to ensure that it does not fall into a dangerous condition. No doubt, where a public highway is concerned, the law of nuisance would ordinarily operate to provide some safeguard for members of the public against structures falling within that branch of the law. But, as I have said, nuisance was not relied on in the present case. The trial judge referred to it briefly but after noting that "no submissions were put to me by Mr Evatt as to a distinct liability for nuisance". Nuisance as a basis for the plaintiffs claim was not argued before this Court. It may be that, if it had been, evidence could have been brought at the trial to deal with it. Accordingly, as I have said, the plaintiff's claim is to be dealt with as one based on negligence. 6 UNREPORTED JUDGMENTS A claim based on negligence requires more particular consideration. It may be accepted that, where a public authority has a power which it may exercise or not exercise according to its discretionary judgment, it may be liable in negligence if it fails to consider whether the power should be exercised, eg, to search out and repair defective pipes. It is possible to envisage a case in which, though the authority has a discretion to determine whether it will or will not act, the circumstances are overwhelmingly such that it will be in breach of its duty if it fails to act. See the discussion of questions of this kind in the Heyman case: (1985) 157 CLR 424 at 442 et seq, 458 et seq, 474 et seq, 500 et seq. It may be - on this I express no concluded view — that such a public authority, if it knows that what it has erected is in a defective and dangerous condition, may have the duty to exercise its power of repair. But in the present case, RTA did not know of the defective state of the pipe. What is in question, therefore, is whether, having the power to erect and to repair such structures, it had an obligation to keep itself informed as to the state of the structures which it had erected. I do not think that it did. As I have said, if such a duty existed, it was imposed by implication from the terms of the legislation. To imply it would require the conclusion that, in effect, the legislature must have intended that the duty and what it involves be imposed on RTA. I am not satisfied that that was the legislative intention. The present pipe was erected in a sense in relation to the activities of others, eg, UTA. The cost of keeping itself informed would - whether of the order of $22 million or not - be substantial. I do not think that an implication of this kind should be made. In my opinion, assuming the power to repair, RTA was obliged to consider, as the occasion arose, how its discretionary power should be exercised. In considering this, RTA would be entitled to, and would be expected to, take into account the cost of any arrangement for inspection or otherwise that would be involved. If, for example, it concluded that, in the particular case, the resources afforded to it by the State or otherwise were not such as to allow or justify it doing what was required, that would be a factor which it might properly take into account in deciding how it should exercise the power. It would not, of course, be of itself a determinative factor. But it would in my opinion not be guilty of negligence or wrongful exercise of its statutory power if, in the light of such a factor as that, it decided not to undertake the programme of searching out and repairing defective pipes which would be involved. (As I have said, I am at this point considering the case where RTA does not know of the existence of a defective and dangerous pipe). For these reasons, I am of opinion that RTA, in failing to find or repair the defective pipe, was not in breach of any duty to the plaintiff. I come finally to consider the position of UTA. Again, it is not necessary to examine the precise terms of the legislation governing the operations of UTA. It was authorised and, it may be, required to provide for the public and to carry on a system of transport by buses. This involved that the buses would stop from time to time, ordinarily at designated stops, and that the public would be invited to and would wait for buses at such places and board them. This would in turn involve that, on occasions, several people or a group of people would wait at bus stops and would, in the manner of intending passengers, board the bus. This, I think, imposed upon UTA obligations in relation to the form and safety of its bus stops. If the bus service had been conducted, with bus stops, by a private entrepreneur, a duty of this kind would exist. A person who invites others URJ URBAN TRANSIT AUTHORITY v PURCELL (Mahoney AP) 7 to a place for his reward or, I think, in connection with his business owes a duty to the persons so invited in respect of the safety of that place. In previous times, the content of the duty in negligence was affected by the category of the invitee and the circumstances of the invitation. There was a distinction between persons entering as of right, pursuant to a contract or by invitation or leave: see generally Watson v George (1953) 89 CLR 409. The High Court has more recently altered the principles involved and, it may be, the content of the obligations imposed by those principles: see generally Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. But the existence of a duty in negligence remains. Where the place in question is a public place, analogous considerations apply: see, eg, Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 at 520 et seq, per McHugh JA. An entrepreneur must of course deal with dangers of which it actually knows. There is nothing in the legislation or the law that, in this regard, puts UTA in a different position. If the judge's finding in this case be accepted to be that the relevant officer of UTA knew of the danger a sufficient time before the plaintiffs injury, a case of negligence would be open. The judge, in the passage to which I have referred, concluded that UTA, through its drivers, "ought to have noticed"... "the dangerous condition of the stump". UTA has contested that finding. If the finding be accepted to mean that the drivers did not in fact notice but "ought to have noticed" the pipe, then UTA was in breach of its duty, insofar as notice to drivers would be notice to it. It is not every employee of UTA who has a duty in respect of the safety of bus stops and accordingly whose knowledge of their condition would be relevant for present purposes. But, in my opinion, drivers of buses had some duty in respect of the safety of bus stops: at the least, they had a duty not to stop at a part of the road which they knew constituted an obvious danger to passengers entering or leaving the bus. Whether a jagged pipe of this kind constituted an obvious danger of this kind to which the drivers should have regard is in the end a matter of degree. It was considered at the trial and the judge found for the plaintiff. In my opinion, on this approach his Honour's finding was in effect that a bus driver exercising reasonable care as to those aspects of the safety of a bus stop to which his duties relate "ought to have noticed" the dangerous condition of the pipe but failed to do so. On that basis, subject to what I shall say, UTA was in breach of its duty not to remove the danger. Ordinarily, these principles are applicable where the place in question is in the occupation of the defendant. Here, it was a public highway: the bus stop had, by or by arrangement with UTA, been identified as such on the public highway. Intending passengers were invited to be and congregate there. There was, in my opinion, a duty upon UTA because of the invitation involved in the selection of that place as a bus stop for its services. For this purpose, it is not, in my opinion, necessary that UTA be the occupier of the relevant place. But UTA has contended that it is wrong to hold that it had or ought to have had notice of the danger which the pipe created at the particular bus stop. UTA claimed that, if a duty existed in relation to the bus stop, it was not in breach of it. This, in broad principle, involves considerations similar to those to which I have referred. If it be assumed that UTA had a duty in respect of the safety of, inter alia, this bus stop, it is necessary to consider the content of that duty, ie, what the duty required it to do. Its duty was not that of an insurer of passengers against injury from a damaged pipe at the bus stop. Thus, a pipe properly constructed might have been, two minutes before injury, rendered dangerous by 8 UNREPORTED JUDGMENTS the vandalism of a third party. In my opinion, UTA would not be liable in negligence for such injury: it could not be expected to keep every bus stop under constant scrutiny at all times. If notice to UTA through its bus drivers be put aside, it remains to be determined whether UTA was in breach of its duty. In my opinion, its duty to its passengers using the bus stop involved that it take reasonable steps, by inspection or otherwise, to ascertain whether there were on its bus stops unacceptable dangers to them. That would involve, inter alia, inspections at appropriately frequent intervals. How frequently inspection was required for this purpose would depend upon, inter alia, the circumstances of the services, the number of passengers, and the like. It is not necessary to attempt to define that duty in the abstract in respect of this bus stop. In determining, for example, how frequently inspection of a bus stop is required, it would be relevant, I think, to take into account the resources necessary to achieve the degree of inspection involved. The cost of a particular precaution may - though not necessarily determinative - be weighed against the probability and magnitude of the risk: cf the observations of McHugh JA in Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 at 523. But here, as I have indicated, before the plaintiff's injury the pipe remained in the broken condition for a long time, extending over a period of several months. This is, in my opinion, evidence warranting the conclusion that, whatever be the system of inspection or safeguard adopted by UTA, it was not a sufficient discharge of its duty. A proper system of inspection would, I think, have disclosed the broken pipe and provided for its removal. In the result, therefore, the plaintiff should succeed against UTA but not succeed against the Council or RTA. An appeal has been brought against the quantum of the judgment for the plaintiff. I agree with Meagher JA that no ground has been established for interfering with the quantum of the judgment. The trial judge held that the Council and RTA should succeed against the plaintiff, that the plaintiff should succeed against UTA, and that in consequence appropriate orders should be made in respect of the cross claims which had been brought by the defendants, one against the other. In the circumstances, I see no sufficient reason to differ from the judge's conclusions on any of these matters. Insofar as the cross appeal by the plaintiff was pressed in respect of damages, I do not think that it should succeed. His appeal in respect of the judgment in favour of the Council and RTA should fail. In respect of the proceedings on appeal, UTA should pay the plaintiff's general costs of the appeal. The plaintiff should pay the costs of his appeals against the Council and RTA. Meagher JA This is an appeal from McInerney J who gave judgment for the respondent/plaintiff against the appellant/defendant in the sum of $134,818.80. The appellant (UTA) was one of three defendants, the other two being the Randwick Municipal Council ("The Council") and the Roads and Traffic Authority ("RTA"). His Honour gave judgment in favour of the Council and RTA. The respondent has now cross appealed, alleging that he should have obtained judgments against the Council and RTA as well as the UTA, and also cross appealed on quantum, alleging his verdict was insufficient. The three defendants have brought several claims against each other, each in general displaying the attitude that whilst the plaintiff was entitled to a verdict it should have been against the other two defendants or either of them. URJ URBAN TRANSIT AUTHORITY v PURCELL (Meagher JA) 9 The plaintiff, Mr Purcell, on 30 June 1987 fell over the stump of a "Bus Zone" sign erected in the footpath at the junction of Marine Parade and Marouben Roads, Maroubra. He sustained serious damage. Nobody disputes that. But how serious I shall leave until later discussion. Nor is it disputed that the original "Bus Zone" sign was erected by the RTA (or one of its predecessors) at the request of the UTA (or one of its predecessors). Exactly when it was erected nobody knows. At some stage it was broken, leaving a nasty jagged stump on the footpath. Again, exactly when it was broken, nobody seems to know, although on the evidence it is tolerably clear that the break took place at least some months before the June 1987 accident. It is in the light of these very simple facts one has to assess the liability of the three defendants. As far as the Council's position is concerned, by s232 of the Local Government Act, it is the owner of the road, and in this context, "road" includes the footpath; by s240 it has power to construct and improve roads; by s249 it has power to control, manage and repair roads. In fact, the evidence discloses that the Council not only had the power to repair the footpath so as to ensure that the jagged remnants of the steel pole were no longer a menace to those entitled to use the footpath, but that they occasionally exercised this power. His Honour, however, declined to hold the Council liable on three bases; one was that the Council as road authority was not liable for non feasance, one was that there was no evidence that the Council knew of the existence of the stump of the pole, and one was that the Council had no duty to repair. With great respect to his Honour, I am unable to accept any of these bases of exculpation, and in my view the respondent's cross appeal against the Council should succeed. As to the first suggested basis, the modern cases seem to make it clear that a highway authority's immunity from liability for non feasance does not extend to liability relating to artificial structures: see Hughes v Council of the Municipality of Hunter's Hill (Court of Appeal, 10 December 1992, unreported). As to the second suggested basis, on any view the fact that the steel stump was situated at a major intersection, and was clearly visible to anyone in that vicinity, coupled with the fact that nobody from the Council gave any evidence that the Council was ignorant of its existence, allows an inference of knowledge to be drawn; according to O'Conner J in Birch v AMP (1906) 4 CLR 324 at 343 to 344, this is a question on which "very slight evidence" will suffice. As to the third suggested basis, whilst it is true that there is no express duty to repair, if a council has a power to repair an object "as a rule it will be liable for the consequence if that object is negligently allowed to fall into disrepair" (per Dixon J in Buckle v Bayswater Road Board (1936) 57 CLR 259). It is next necessary to consider the position of the RTA. That body was constituted by the Transport Administration Act, 1988, s46(1) of which provides, inter alia, that it "has the functions conferred or imposed on it by or under... the State Roads Act, 1986". By s12 of the State Roads Act, 1986 it is provided that the RTA has and may exercise in respect to roads which are "classified" roads, "the functions and immunities of a council in relation to a public road". By s13 the RTA may carry out "works of construction" on a "classified" road. It was conceded in argument that the road in question was a "classified" road. S27 (1) is of particular importance; it provides: "27. (1) The Authority may: (a) construct, erect, affix or mark a traffic control facility; (b) maintain, repair, alter, operate or remove a traffic control facility constructed, erected, affixed or marked by the Authority; 10 UNREPORTED JUDGMENTS (c) alter or remove lines marked on a public street by a council for purposes relating to vehicular or pedestrian traffic; or (d) maintain, repair, alter, operate or remove any other traffic control facility with the concurrence of the person responsible for the facility. At the time of the accident which occasioned the plaintiff's injuries, the Commissioner of Main Roads was the authority responsible for the roads, in the same way the RTA now is. It is not contended that there is any difference in their legal positions; nor is it contended that the latter is not the universal successor to the former. In these circumstances, generally the RTA will have a concurrent liability with the Council; if one is liable the other is also probably liable, absent some special defence; although it is arguable that the RTA's liability in cases such as the present may exceed the Council's, in that s27 of the State Roads Act, 1986 emphazises the basis of the RTA's liability in a way in which no provision of the Local Government Act does, and in that the RTA, not the Council, installed the original steel "Bus Zone" post. It follows from what I have said, that if I am correct about the Council's position, insofar as the learned trial judge found a verdict for the RTA, he was in error unless there was some special factor which operated in favour of the RTA. His Honour found that there was a special factor, and a most surprising one: that the RTA was not sufficiently financially affluent to detect the broken stump, and having detected it, to repair it. This evidence was that of a Mr Vieryro, an engineer at the Rockdale Depot of the RTA. No officer of the Authority of any higher stature gave any such evidence. No detailed evidence of the RTA's budget and expenditure was proved, or was sought to be proved. Moreover, it was proved that, only three weeks before the accident, the RTA were able to repair another similar sign in the same road only fifty metres away. In my view, the plaintiff made out his case against the RTA. The appellant submitted that, whatever the demerits of the Council and the RTA may be, the plaintiff had made out no case against it. Its servants had not erected the pole, although they probably requested the RTA to do so; they had no power to repair it or renew it, although they, like anybody else, had the right to request the RTA to do so. On appeal, it was argued that it neither had a duty of care nor committed any breach, if such a duty existed. Below, it had merely submitted that there was no breach. As far as duty is concerned, the UTA ran buses, it knew that members of the public like the plaintiff would board and disembark from those buses; it caused the "Bus Zone" signs to be erected. It was intimately connected with the business of its passengers boarding and disembarking. Its failure to cause a repair to be effected was not in the same position as the Sutherland Shire Council's failure to warn about building defects in Heyman's Case (1984) 157 CLR 424. In my view, as in fact was (sub silentio) conceded below, neither proximity nor foreseeability was lacking. The sole question for argument is whether the UTA knew of the existence of the stump. His Honour concluded it did. In this context it will be recalled that O'Conner J in Birch v AMP (1906) 4 CLR 324 at 346 said "very slight evidence" is all which is required. The argument that the appellant UTA did not know of the existence of the stump is untenable. A Mr Purcell, whom his Honour believed, said he could see it 50 yards away from the opposite side of the road. Dozens of buses stopped daily at or near the stump, and in these circumstances the possibility that one or more of their drivers noticed the stump must have been extremely high. Moreover, the UTA did not call one single bus driver who travelled the route to say that he had never noticed the stump. URJ URBAN TRANSIT AUTHORITY v PURCELL (Meagher JA) 11 to damages, the plaintiff withdrew his cross appeal that they were inadequate but the UTA persisted with its appeal that they were excessive. His Honour's verdict for the plaintiff was composed of the following items: General damages (to present $40,000) $80,000.00 Interest on $40,000 3,720.00 Past care 8,540.00 Future care 40,376.00 Out of pocket expenses 958.00 Adjustable lounge chair 1,207.00 $134,818.80 The plaintiff was born on 22 August 1918, so that he was 69 when he tripped over the stump and 73 at the date of trial. He was unemployed at the time of the fall. He had commenced work as a wharf labourer in 1945 and worked in that occupation until 1961 when he suffered an injury at work which caused him to absent himself from his job for about three years. He worked as a tally clerk from 1964 until 1981, when he suffered a second accident causing injury to his neck, right arm and right shoulder. In 1983 he retired from the waterfront. Although he contended that he had completely recovered from the effects of the 1981 accident before the 1987 accident, his Honour did not believe him. His life expectancy at the date of trial was about nine years. The RTA challenged the award for damages and the awards for past and future care. In my view, these challenges are hopeless. His Honour considered the medical evidence carefully and at length. He disbelieved the plaintiff on many matters. He found that on some occasions, the plaintiff had exaggerated, on other occasions failed to tell the truth. He found that many of the genuine disabilities to the neck, arm or leg from which the plaintiff was suffering had their origins either in the 1981 accident, or in an existing degenerative condition, or in the aging process. Nonetheless, after taking into account all those factors which reflected adversely on the plaintiff, his Honour found that there was attributable to the 1987 incident a sufficiently large aggravation of this previous condition to justify a finding of $80,000 for general damages. I am unable to see how this can be challenged, particularly as the RTA submitted that it should be reduced to a figure no lower than $50,000. Similarly, the past care and future care were estimated on what seems a moderate bases, much less than was claimed, based on a requirement of two hours assistance per day. In my opinion, the following orders should be made: 1. The appeal should be dismissed with costs. 2. The respondent Francis Sydney Purcell's cross appeal should be allowed. 3. The verdict for the second and third cross respondents should be set aside. 4. Judgment should be entered in favour of the respondent against the second and third cross respondents, to take effect as from 9 March 1992. 5. The second and third cross respondents should pay the respondent's costs of the trial below and of the cross appeals, and should have a Certificate under the Suitor's fund Act in respect of the letter. 6. The cross appeal of the second and third cross respondent be dismissed with costs. 12 UNREPORTED JUDGMENTS Handley JA In this appeal I have had the advantage of reading in draft form the reasons for judgment of Mahoney AP. In view of his reasons I only wish to add some brief remarks of my own. McInerney J drew the inference that employees or contractors of the Randwick Council had repaired the Council's fence that was damaged by the motor vehicle that knocked down the bus zone post and created the stump which later injured the plaintiff. I was initially impressed with the plaintiff's submission that this Court should draw the further inference that the same employees or contractors also removed the broken sign post from the footpath and were negligent in not removing the projecting stump. The trial Judge found that there was no evidence as to the extent or location of the damage to the fence and where it was in relation to the damaged pole. Thus the damage to the fence may have been some distance from the pole. Moreover there is no evidence that the damaged pole was still on the footpath when the damage to the fence was reported to the Council or when the repairs were effected. Someone may earlier have removed the broken pole, perhaps by throwing it over the fence into the rough ground below at the northern end of Maroubra beach. In these circumstances I have not been persuaded that the trial Judge erred in refusing to draw the inference that employees or contractors of the Council observed or should have observed the dangerous condition of the stump. Indeed, with respect, I consider that his Honour was right in declining to draw this inference. I was also initially troubled by the trial Judge's findings against UTA. However, further consideration and the analysis provided in the judgment of Mahoney AP have persuaded me that its appeal should fail. The Judge accepted evidence from the plaintiff's son, Mr John Purcell, that the projecting broken pipe was visible from fifty metres away. In these circumstances the trial Judge was entitled to infer that it would have been clearly visible to and seen by UTA's drivers who stopped their buses at this bus stop. Such drivers would have much else on their minds, and, on their own initiative, may not have thought to report the dangerous condition of this post to higher authority. However, as the trial Judge noted: "Tt seems to me that in circumstances such as these there should have been an instruction to employees that if any dangerous conditions were observed in and about bus stops used by the third defendant that such matters should be reported and that when reported a request should be made to the second defendant to repair those signs." Subject to the above, I agree with the reasons of Mahoney AP and the orders he has proposed. 1. Appeal by UTA dismissed. 2. Cross Appeal by Francis Sydney Purcell dismissed (Meagher JA dissenting as to part). 3. UTA to pay the Plaintiff's general costs of the appeal. 4. The Plaintiff to pay the costs of his cross appeal against the Council and RTA (Meagher JA dissenting). Counsel for the Appellant: C HOEBEN Instructed by: ASTRIDGE AND MURRAY Counsel for the Respondent: RV GYLES QC, CA EVATT URJ URBAN TRANSIT AUTHORITY v PURCELL (Handley JA) 13 Instructed by: GH HEALEY AND CO Counsel for 2nd cross respondent: DL DAVIES Instructed by: PHILLIPS FOX Counsel for 3rd cross respondent: W REYNOLDS Instructed by: HR ROBERTS