New South Wales Court of Appeal CITATION : The Council of the Shire of Muswellbrook v Lettice & Anor; The State of New South Wales v Lettice & Anor. [2000] NSWCA 359 FILE NUMBER(S) : CA 40172/00; 40176/00 HEARING DATE(S) : 16 November 2000 JUDGMENT DATE : 14 December 2000 PARTIES : The Council of the Shire of Muswellbrook v Jason Lettice and the State of New South Wales; The State of New South Wales v Jason Lettice and The Council of the Shire of Muswellbrook. JUDGMENT OF : Meagher JA at 1; Stein JA at 15; Heydon JA at 16 LOWER COURT JURISDICTION : Supreme Court LOWER COURT 19336/93 FILE NUMBER(S) : LOWER COURT Dowd J JUDICIAL OFFICER : The Council of the Shire of Muswellbrook: L. King SC/M.J. Ward COUNSEL : Jason Lettice: B.J. Gross QC/T.J. Boyd The State of New South Wales: B. Donovan QC/J. Simkins. The Council of the Shire of Muswellbrook: McLachlan Chilton SOLICITORS : Jason Lettice: Carroll & O'Dea The State of New South Wales: Conway MacCallum CATCHWORDS : Negligence - fall from a bridge - causation - alleged negligent construction of bridge - issue not decided below. DECISION : In matter no 40172/00 and 40176/00 -; 1. Appeal allowed; 2. Judgment below set aside; 3. In lieu thereof, judgment for the appellant; 4. The first respondent, Jason Lettice to pay costs of the appellant in the appeal and in the trial below and to have a certificate under the Suitors Fund Act. - 1 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40172/00; 40176/00 MEAGHER JA STEIN JA HEYDON JA 14 December 2000 THE COUNCIL OF THE CITY OF MUSWELLBROOK v LETTICE & ANOR; THE STATE OF NEW SOUTH WALES v LETTICE & ANOR JUDGMENT 1 MEAGHER JA: The plaintiff, Mr Lettice, the present respondent, fell from a bridge at Muswellbrook about 10 metres into a creek bed below, as a result of which he suffered severe spinal injuries and paraplegia. He alleged that the cause of his misfortune was the negligence of either (or both) the defendants, the present appellants and second respondents, the Council of the Shire of Muswellbrook (the "Council") and the State of New South Wales (the "State"). He was successful before Dowd J in obtaining favourable findings against each defendant on liability the assessment of damages having been reserved for later consideration. Both defendants have now appealed. 2 The accident took place on 15 December 1990. The bridge in question, known to the locals as the Wilkinson Avenue Bridge, bears a road (which is about 20 feet from gutter to gutter) with a footpath either side of it. Along the edge of each footpath was a pedestrian railing. The plaintiff, on the night in question, had been sitting with some friends on the footpath on one side of the road. He had been drinking heavily for some hours, and had become quite drunk. The trial judge found that his capacity to control his physical actions had been "significantly impaired". He suddenly announced to his friends that he wished to vomit over the railing, and he moved with some speed across the road and footpath opposite him, leaned over the railing and fell. 3 The bridge was constructed in 1970 by F. H Compton & Sons (Civil Engineers) Pty Limited. It was designed by the Public Works Department, an emanation of the State of New South Wales. It had a railing with a height of 912 mm (3 feet), at the base of which there was a step with a height of 152 mm (6 inches). The respondent Council had nothing to do with the construction of this bridge other than to check that the bridge as constructed complied with the plans accepted by the Public Works Department. 4 Dowd J accepted the evidence of a Mr Simpson (one of the plaintiff's expert witnesses) that "a practical means of solving the risk problem is to increase the height of the top rail by adding an additional rail at the top of the existing railing …about 2 inches in diameter … (with) the base of such railing…about 6 inches above the existing railing" - therefore, an increase in height beyond what had been constructed of 203.2mm. The plaintiff was 6'3" (ie. 1905mm) at the time of the accident which would place him within the top 0.5% of the populace. The trial judge rejected the plaintiff's evidence that he placed a foot on the step as he moved towards the railing. The effective height of the railing was, therefore 1064mm (55.85% of the respondent's height). If the railing were constructed in accordance with the suggestion of Mr Simpson (which his Honour accepted) it would have had an effective height of 1267mm (66.5% of the respondent's height). Mr Simpson also said that the grip afforded by the existing railing was unsatisfactory, and that his suggestion would improve it. 5 One of the strongest attacks which each appellant made on his Honour's judgment related to the issue of causation. His Honour seems to have assumed that if the railing had been constructed in accordance with Mr Simpson's evidence the accident would not have happened. It is by no means self evident that the addition of a railing eight inches higher with a superior grip would have made any difference. In any event the Judge does not address the issue; he does not deal with any of the expert evidence about it; he does not explain why there would be a difference; and he does not even make a finding of causation. This conclusion of itself should resolve each appeal in favour of the appellants. However, in deference to the arguments of Counsel, I shall deal with some other aspects of the case. 6 Even if one treats the actual builder, F.H Compton & Sons, as part of the New South Wales Department of Works, I find it hard to see how the latter can be said to be negligent in the building of the bridge. Even in 1990 there seems to have been no obvious risk of any fall, let alone a nearly-fatal fall. Up until then there is no record of any man, tall or short, drunk or sober, moving quickly at right angles to the railing. The bridge was of the same kind as other bridges in New South Wales. It complied with the requirements of the National Australian Association of Roads Standard (NAASRA). A fortiori was all this true in 1970. 7 The factors to which his Honour continually drew attention were (a) that the bridge led onto a recreation area, containing a bowling club, a swimming pool, a velodrome, a football field, tennis courts, and other facilities (b) that, as a consequence, the local bowling club was the scene of some heavy drinking; and (c) that drunks would congregate on the bridge to complete or continue their binges. There is no evidence of the existence of any of these factors in 1970, and, indeed, no evidence as to the existence of the third of these factors at any time. In my view, therefore, any case based on an original failure in design must fail. 8 In this regard, reference should be made to a passage in his Honour's judgment, which was to the following effect: "However, it is largely irrelevant whether or not the bridge was designed and constructed in accordance with the relevant NAASRA Guidelines, since as the High Court said in Mercer v Commissioner for Road Transport and Tramways (1936) 56 CLR 580 per Latham CJ at 589; "The mere fact that a defendant follows common practice does not necessarily show that he is not negligent, though the general practice of prudent men is an important evidentiary fact. A common practice may be shown by evidence to be itself negligent." 9 This is really to misquote Latham CJ, who was not saying that current practice was irrelevant, but merely that it was not necessarily determinative. 10 For these reasons, it cannot be said that the State was negligent in the construction of the bridge. Moreover, once the bridge was built, there was no further obligation on the State. It had no duty, and arguably no power, to modify, alter, or (to use one of his Honour's expressions) to "upgrade" the bridge. 11 The position of the Council is somewhat different. It can in no way be said to have constructed the bridge. And, although it must have gradually become obvious to the Council that the bridge was increasingly becoming the principal access to a large sporting area, the "non-feasance rule" precludes any liability in the Council for any period of time after its construction, because the bridge had after that date become part of a highway. Unlike the State, it had a power to "upgrade" the bridge, but there is no evidence as to why that power should have been used. It was not an occupier of the highway. Even apart from the "non-feasance rule", however, it is not easy to see what act of negligence the Council committed. It is true that well before 1990 there were numerous liquor outlets within walking distance of the bridge. From late 1989 the bowling club conducted dances late at night. The bowling club forbad the removal of alchohol from the premises. The bowling club president was aware of complaints about the behaviour of young people in the car park, but was "not sure" about the bridge. While it was foreseeable before 1990 that persons might cross the bridge, and that they might become drunk either after visiting the bowling club or after visiting some other liquor outlet, and while there was evidence that they might stop on the bridge, the court was taken to no evidence that persons congregated on the bridge at night before the time when the plaintiff fell. In particular, the rapid movement of a person, drunk or sober, from one side of the bridge to the other at right angles was not a foreseeable source of injury. 12 Against both the State and the Council an additional act of negligence was alleged, a failure to warn. It was said that some notice should have been erected near the spot where the accident occurred. I find this an extraordinary allegation. What would the notice have said? "Please be careful when expectorating over the bridge"? "Never lean on the bridge for any purpose"? "Under the bridge is a drop of 10 metres"? "Hang onto the bridge when leaning over"? And in how many languages should this notice be repeated? Moreover, what steps should be taken to bring the content of such a notice to the attention of those whose intake of alcohol has deprived them of both the ability to read and the ability to comprehend? The argument relied upon the proposition that a suitable sign, seen on earlier visits to the bridge over 17 years by the plaintiff while sober, would have induced a general awareness of risk which would have been acted on by him on the night in question. In view of the plaintiff's condition, this suggestion has not been shown to be probable in the absence of expert evidence to support it. 13 In my view, both appeals should be allowed with costs, the judgments and verdicts set aside and a verdict in each case entered for each defendant. 14 I would propose the following orders: 1. In matter no 40172/00, The Council of the Shire of Muswellbrook v Jason Lettice and The State of New South Wales, (a) Appeal allowed; (b) Judgment below be set aside; (c) In lieu thereof judgment for the appellant; (d) That the first respondent Jason Lettice pay the costs of the appellant in the appeal and in the trial below and have a Certificate under the Suitor's Fund Act. 2. In matter no 40176/00, The State of New South Wales v Jason Lettice and The Council of the Shire of Muswellbrook. (a) Appeal allowed; (b) Judgment below set aside; (c) In lieu thereof, judgment entered for the appellant. (d) That the first respondent Jason Lettice pay the costs of the appellant in the appeal and in the trial below and have a Certificate under the Suitor's Fund Act. 15 STEIN JA: I agree with Meagher JA. 16 HEYDON JA: I agree with Meagher JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.