New South Wales Supreme Court CITATION : Woods v The Nominal Defendant and Anor [2008] NSWSC 985 HEARING DATE(S) : 25/08/2008; 26/08/2008; 27/08/2008; 28/08/2008; 01/09/2008 JUDGMENT DATE : 30 September 2008 JUDGMENT OF : Hoeben J DECISION : On the cross-claim brought by the first defendant against the second defendant, verdict and judgment in favour of the second defendant. CATCHWORDS : NEGLIGENCE - child struck by car - driver does not stop - claim against Nominal Defendant and Local Council - hearing as to liability only - content of duty of care - whether breach of duty of care established - causation. LEGISLATION CITED : Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 CATEGORY : Principal judgment Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Brodie v Singleton Shire Council (2001) 206 CLR 512 Chappel v Hart (1998) 195 CLR 232 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 CASES CITED : Phillis v Daley (1988) 15 NSWLR 65 Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773 Seltsam Pty Limited v McGuiness and Anor (2000) 49 NSWLR 262 Vairy v Wyong Shire Council (2005) 223 CLR 442 Wyong Shire Council v Shirt (1980) 146 CLR 40 Georgina Anna Woods bht Graham Arthur Samuel Woods - Plaintiff PARTIES : The Nominal Defendant - 1st Defendant Canterbury City Council - 2nd Defendant FILE NUMBER(S) : SC 20151/2006 R Letherbarrow SC/DR Toomey - Plaintiff COUNSEL : R Stitt QC/Ms C Allan - First Defendant R Sheldon - Second Defendant Stacks/Goudkamp - Plaintiff SOLICITORS : Moray and Agnew - First Defendant Phillips Fox - Second Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Tuesday, 30 September 2008 20151/2006 – Georgina Anna WOODS by her tutor Graham Arthur Samuel WOODS v THE NOMINAL DEFENDANT and Anor JUDGMENT 1 HIS HONOUR: Nature of Proceedings At about 5.45pm on 4 April 2005 the plaintiff, who was then aged 8 years and 8 months, was struck by a motor vehicle travelling north in The Broadway, Punchbowl. The plaintiff suffered serious injuries. The vehicle which struck the plaintiff did not stop and its driver has never been identified. 2 The plaintiff brought proceedings against the Nominal Defendant as representing the unknown driver of the vehicle and against the Canterbury City Council (the Council). In general terms, the claim against the Nominal Defendant was that the driver failed to keep a proper lookout and otherwise failed to drive appropriately and against the Council that it failed to properly maintain a war memorial located in the middle of The Broadway in that it had allowed plants surrounding that memorial to grow in such a way as to obscure the movement of persons, particularly children, from the war memorial onto the road. It was common ground that the plaintiff had moved from the war memorial onto The Broadway before being struck by the motor vehicle. 3 The hearing commenced on 25 August 2008 on the issue of liability only. On the morning of the fourth day, the Court was advised that the matter had been settled as between the plaintiff and the Nominal Defendant. Senior Counsel for the plaintiff told the Court that the plaintiff would no longer be proceeding against the Council. He accepted that this would inevitably result in a verdict against the plaintiff and an order for costs in favour of the Council. The plaintiff was given leave to withdraw from the proceedings. 4 The matter then continued as a hearing of the cross-claim by the Nominal Defendant against the Council. This judgment is in respect of that cross-claim. 5 The Nominal Defendant's cross-claim is brought pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. It asserts that as the entity which had the management and control of the war memorial and The Broadway, the Council owed a duty to the plaintiff to exercise reasonable care for her safety, which duty included an obligation to properly maintain the war memorial. 6 The particulars of negligence relied upon by the Nominal Defendant were: (i) Permitting or encouraging pedestrian use of the war memorial. (ii) Failing to prohibit pedestrian access to the war memorial. (iii) Planting or permitting the planting of vegetation in the vicinity of the war memorial which obscured young pedestrians from the vision of northbound motorists. (iv) Failing to remove the said vegetation around the war memorial so as not to restrict the view of northbound motorists in The Broadway. Factual background 7 Unless otherwise indicated, I find the facts to be as follows. 8 Because of her injuries, the plaintiff is unable to give evidence of how the accident occurred. The only eyewitnesses to the accident were Ferhat Inan and Julio Potaua. Ferhat Inan was born 16 May 1994 and was almost 11 at the time of the accident. Julio Potaua was aged 6 at the time of the accident. There are real questions about the reliability of their evidence. There are, however, some physical features of the location of the accident which are not controversial. 9 The street where the accident occurred, The Broadway, runs in a generally north/south direction between Canterbury Road and The Boulevard at Punchbowl. It consists of a dual carriageway separated by 5.5 metre wide centre median strips. The northbound carriageway is approximately 6.1 metres wide and the southbound carriageway is approximately 6.0 metres wide. The Broadway is under the care, control and management of the Council. 10 The Punchbowl and District RSL and Social Club is located on the western side of The Broadway. Opposite the club on the median strip is a war memorial consisting of a stone cenotaph, pathways and gardens. The Broadway in the vicinity of the club and the cenotaph is subject to a speed limit of 50 kilometres per hour. 11 A path runs from the northern tip of the median strip to the cenotaph and a second path runs at right angles to the first path laterally east/west across the median strip. The paths are 2 metres wide. Where the path joins the northbound lane on the western side of the median strip, there is a step down onto the road surface of approximately 25 cms in height. The cenotaph is approximately 5 metres tall. A large tree and shrubs are planted immediately to the south of the cenotaph. Parallel parking spaces are located immediately north of the median strip in the centre of the road. 12 At the time of the accident there were cars parked outside the RSL Club parallel to the western kerb of The Broadway, reducing the width of the available carriageway for traffic travelling north. 13 After being struck by the motor vehicle, the plaintiff landed in a position within the first parallel parking space north of the median strip on which the cenotaph was located. The position where she came to rest is indicated by two small pools of blood, which the police marked by two yellow painted circles on photographs which they took. These pools of blood indicating the position of the plaintiff after impact are the only pieces of objective evidence in the case. 14 There was disagreement between two of the witnesses as to the orientation of the plaintiff's body when she came to rest. Mr Allen said that her head was facing south and her feet were facing north whereas Ms James said that she was lying on her side with her head facing north and her feet facing south. It is not known whether anything turns on this disagreement since none of the experts expressed an opinion in relation to it. 15 It was not known where on the path the plaintiff was when she emerged onto the road. This meant that the plaintiff was thrown between 8 and 10 metres in a northerly direction. She was also thrown backwards, ie in an easterly direction about 2-3 metres so as to come to rest within the first parallel parking space north of the cenotaph. Based on this trajectory the experts agreed that it was likely that the plaintiff was struck by the front right corner of the unidentified vehicle, giving rise to a projection in both the direction of travel of the vehicle and to its right. The experts were not able to determine whether the plaintiff was moving forward across the road or standing still at the time that she was struck. 16 It was agreed between the parties that without footwear at the time of the accident the plaintiff was 135 cms in height and weighed 35 kilograms. She was wearing boots at the time of the accident. These had heels and would have increased her height by between 2-3 cms. 17 The experts agreed that the best ways of calculating the speed of a motor vehicle are by the use of a skid mark or the radius of a yaw mark. Such information was lacking in this case. It was only the throw distance, ie the distance between where the plaintiff was struck and where she came to rest which could be used to calculate the speed of the motor vehicle at the time of impact. This assumed that the pedestrian was accelerated to the speed of the impacting vehicle and that the pedestrian was thrown through the air before landing on the road surface. Since the length of the throw distance was not known (because the point of impact was not known) and there was a difference of at least 2 metres, the range of possible speeds was wide. The experts suggested a range of between 26 and 45 kilometres per hour. The experts stressed that this estimate represented the minimum speed of the motor vehicle at the time of impact. This was because if the plaintiff were struck a glancing blow, she may not have reached the speed of the vehicle. 18 I have commented on the unreliability of the evidence of the two eyewitnesses. This is primarily because of their age. Julio Potaua did not give evidence. A statement made by him to the police in the presence of his mother and sister (exhibit 1D(3)) was tendered. The statement was taken on the day following the accident. A reading of the statement makes it clear that it cannot be relied upon for any details of the accident. The only conclusion one can draw from the statement is that the plaintiff was running at some time before impact. 19 Ferhat Inan gave evidence. He provided a statement to the police in the presence of his older brother, two days after the accident on 6 April 2005. The significant parts of this statement are: "Q.29 Do you want to tell us what you remember about what happened that afternoon? A. I can't remember much of it, but all I can remember is I was chasing that little kid and then, and then later on, I was running up, like up and I was running next to the rubbishes and then she, she thought I was coming … but I wasn't and then she said "He's coming", and she just ran onto the road and then the car hit, I didn't, I didn't see anything about the car just … and then I ran home … inside …" Q.72 Okay and what about out on the road, did you see anything happen out there? A. Not really. Q.73 The, the little girl that got hit out on the road … A. Yes. Q.74 Do you remember, did you see her get hit by the car? A. No. Q.75 Okay, do you remember seeing her out near the road at any time? A. Yes I saw her, I saw her in the middle of the road where the trees are. Q.76 Yeah. A. I saw her over there. Q.77 Okay and when you say near where the trees are can you describe what else is where the trees are to me? A. It's it's like there's a path there and there's a really big stone and it has lots of them sort of … Q.78 A big stone? A. Yes. Q.79 Yeah all right can you walk over there or is it all fenced off? A. You can walk over there. Q.80 Yeah. Okay. Are you able to say where the little girl was on the, near the trees there? A. She was where like she was standing there, there was a pole there … she was, like and it was … and then, then she thought I was coming, but then she jumped, but it was actually her fault, because the car, the car did nothing, she just jumped on the road and the car the car really beeped the horn. Q.81 The car beeped the horn? A. Mm. Q.82 Did it yeah? A. And then she just jumped and the car hit and then I ran, I didn't see the colour I didn't see if … I didn't see how much it was going. Q.83 All right. So, did you see her get hit by the car or not? A. No. Q.84 No. But did you, did you see her step out onto the road? A. Yes, I saw her step out, but when, when the car hit her, I didn't see her when she fell on the floor, I just saw her on the floor when the car first hit her. Q.85 All right. Do you remember when you saw her step out onto the road? A. No, but she did, she just, she just jumped on the road and then the car just hit. Q.86 Okay. So, did you see that? A. Not all of it, half. Q.87 Not all of it, half of it. A. Yes. Q.88 Okay. So, did you see her step onto the road? A. Yes, I saw, I saw her step, step onto it, when the car hit I ran inside. Q.89 Okay. A. Because I got so scared like I was really scared at the time. Q.90 All right. Are you, do you remember if the girl was running or was she walking or … A. Running. Q.91 … moving slowly? A. Running. Q.92 Running. All right. Do you remember, before she started running, before the car accident happened, was she standing still, or was she moving around? A. She was standing still, but then when I was running towards … she thought I was coming next to her, but I wasn't and then, and then she, she, she said, he's coming, and then she just ran, she just ran, like half way and then she jumped, the car beeped the horn and then it hit and it just drove off, but I didn't, I didn't see the colour, I didn't see anything. Q.93 When you said you were running, were you running up the path or … A. Just the path. Q.94 … down the driveway, or where were you? A. The path. Q.95 Okay from, from … A. The end to half way. Q.96 Okay and were you saying anything when you were running? A. No. Q.97 No. Okay. And she's, she's called out he's coming did she? A. Yes. Q.98 And what did she do then? A. She just ran and she jumped and the car hit." "Q.106 Okay. Now, I, I know you said you didn't see the car, but you heard a honk? A. Yes. Q.107 Yeah. A. I heard a horn but I didn't know what it sound like. Q.108 Okay so, you didn't, you can't say whether it was high pitched or … A. Yeah. Q.109 … or, or low, or … A. Low or high or, yeah. Q.110 Do you remember if it was just one honk or two? A. I think so yes. Q.111 … honks? A. I can't remember. Q.112 Three? A. I can't remember that, two, three. Q.113 That's all right. Well, what about the, the length of the noise, was it a long noise or was it a short noise? A. I think it was long, I really can't remember that part either. Q.114 All right. Do you remember hearing any other noises at the time? A. When the car hit her, I heard that noise, but then my brother and me ran inside. Q.115 Okay. And what about just before the accident, I know you said there was a honk, but did you hear any other noises that might have come from a car? A. No. Q.116 … or from anything else? A. No. Q.117 And then after the accident, after you saw her step onto the road, you came inside is that what happened? A. She, she stepped on the road, the car hit her and then I turned around and I was just running, I was just running as fast as I, as I can run and … and then I just ran inside and I, I stayed inside for a little bit and then I went and saw …". "Q.124 When you said it made a beeping sound, could you, could you hear the car coming down the road before it happened? A. Yes, I heard it, I heard a bit of it. Q.125 Yeah. A. But it was, it was, like from the end. He just, the car just came out of nowhere and just hit her. Q.126 Okay, so, you know how you said you heard the beeping sound, did you hear any other noises? You know when a car brakes hard it sometimes … A. Yeah. Q.127 … you get a screeching? A. Yeah. Q.128 Did you hear any noises like that? A. No." "Q.140 Okay and when you, you said you, the car beeped and you saw her step out and she got hit and you ran into the house, you didn't see where, where she went after the car …? A. No. Q.141 … hit her? Could you tell whether the car was, was it like a, was it a van, or was it a … A. I don't know … look like. Q.142 You didn't know what it looked like? A. No." 20 What seems clear from that statement is that Ferhat Inan and Julio Potaua were playing the game of "tips" or "catch" with the plaintiff shortly before the accident. Ferhat was apparently on the eastern side of The Broadway, facing away so that the plaintiff and Julio could hide or otherwise position themselves so as to avoid being tipped or caught. When Ferhat turned around he observed Julio and the plaintiff in the vicinity of the cenotaph. As he approached them the plaintiff appears to have run some distance, jumped onto the road and been struck by the car. It seems that the car sounded its horn loudly, but Ferhat was not able to say whether the horn had sounded more than once. 21 It is not possible to determine from the statement where exactly in the northbound lane the plaintiff was struck, nor where she emerged from the path and jumped onto the road. In other words, it is not clear whether she was in the middle of the path, on its northern edge or on its southern edge. The statement, however, clearly suggests that on the approach of Ferhat the plaintiff, who was initially stationary turned, ran some distance before she jumped on the road. It is not clear where she was when she commenced running nor is it clear how far she ran before she jumped onto the road. It is not clear whether she continued to run after she jumped onto the road. The statement refers to at least one loud sounding of the horn by the car before impact. It provides no information as to the type or size of the vehicle which struck the plaintiff. 22 The evidence which Ferhat gave at trial differed from his statement in a number of significant respects. It should be noted that over three years had passed between the date of the accident and when Ferhat gave evidence. He was 14 at the time he gave evidence. In making the comments which I do about his evidence at trial, I wish to make it clear that I am not criticising Ferhat personally in any way. The problems with his oral evidence are the direct result of his age at the time of the accident, the passage of time and the effect on his recollection of what he has heard or been told by others. 23 In his evidence in chief Ferhat (exhibits C and D) identified the plaintiff as standing at the northern edge of the east/west path on a raised ledge which surrounded a garden. He placed the plaintiff approximately 15 cms from the western edge of the path. He said that when he ran towards her she turned around, jumped onto the road and was struck by the car. He said that he heard a horn. He said that he saw where the plaintiff ended up following the impact and that he stood very close to her but she was not moving. He said that he then panicked and called an ambulance on his mobile phone. He said that he saw the car strike the plaintiff and that the point of impact on the car was at the front between the headlights. 24 Under cross-examination he said that he was halfway across the road on the eastern side when the car struck the plaintiff. He said that when the plaintiff saw him running towards her she turned and she was running. He said that she ran along the raised ledge for some distance before jumping onto the road. He then said that she jumped first and started running before the car hit her. When attempts were made to test him in relation to these discrepancies and the differences between his oral evidence and the statement which he made to the police two days after the accident, Ferhat became distressed and was unable to remember any specific details. 25 I have concluded that the evidence of Ferhat at trial is unreliable and that it cannot assist me in determining where the plaintiff was positioned when Ferhat first saw her and before she started running. I am not satisfied that exhibits C and D provide any reliable indication of that position. There are, of course, other parts of Ferhat's evidence at trial which are demonstrably untrue, eg the assertion that he telephoned the ambulance and the point of impact on the car. 26 I prefer to rely upon the statement which Ferhat made to the police within two days of the accident. Despite his age at the time, that statement is likely to be more accurate since his memory was fresh and there was less opportunity for him to be influenced by other people. Even that statement has its difficulties in that it is clear from its tenor that Ferhat was afraid that he might be blamed for what happened to the plaintiff, ie that it was his conduct which caused her to go onto the road and be struck by the car. 27 An important matter which does emerge from the statement and which I accept as correct since it was repeated on a number of occasions, is that before the plaintiff was struck, the car sounded its horn. From this I infer that the plaintiff and/or the other child, Julio Potaua, must have been seen by the driver of the car so as to allow the driver time to sound the horn. 28 There was an issue between the experts as to whether the plaintiff was running in a westerly direction at the time when the car struck her. Because of the difference in mass between the plaintiff and even a small car, three of the experts were of the opinion that the final rest position of the plaintiff was consistent with her running or being stationary at the time when she was struck. Mr Keramidas offered reasons as to why she was probably running and Mr Richardson suggested an alternative scenario of the plaintiff having stopped and trying to run back towards the cenotaph. There is simply no evidence to support the alternative scenario put forward by Mr Richardson. 29 The evidence of Ferhat in his statement strongly suggests a forward movement, even if the plaintiff were struck as she jumped onto the road before she had resumed running. On the basis of Ferhat's statement, I am prepared to find that the plaintiff did run for an unknown distance before jumping from the path onto the road. I am not able to find that she resumed running before being struck by the car because there is insufficient evidence to justify such a finding. I do find, however, that she was continuing to move in a westerly direction in her efforts to avoid Ferhat and that it is unlikely that she came to a complete stop at any time before she was struck by the vehicle. That scenario seems to coincide with the opinion of all of the experts. 30 I do not accept that the plaintiff was on the raised ledge next to the garden nor do I accept that the plaintiff was at the northern edge of the path when she emerged onto the road. The only evidence to that effect came from Ferhat in his oral evidence in chief. No mention was made of that detail in his statement to the police. If he had a genuine recollection of those matters, they are the sort of things one would have expected him to have mentioned in his statement. On the other hand I am not able to say where she was on the path when she commenced to run. I can only infer that she was sufficiently back from the western end of the path to enable her to reach a speed sufficient to justify the description "running" given by Ferhat. I am unable to say where, in relation to the northern and southern boundaries of the path, she was positioned at that time nor from where, in relation to the path, she emerged onto the road. 31 The experts generally agreed that the sounding of the horn indicated that the driver of the vehicle had perceived a potential hazard and had reacted to it. They agreed that 1½ seconds was an appropriate time for such a perception/reaction to take place. They also agreed that the honking of the horn was unlikely to have been an emergency reaction to an immediate hazard. The proposition was put this way by two of the experts: "McDONALD: I note, however, that in the cases that I have examined that braking tends to be the instinctive act of urgency that a driver undertakes, so as such I would suggest that the sounding of the horn is something undertaken with less urgency, that whilst you could undertake it in the same time that you could commence braking but generally to sound the horn is something done subsequent to the initial human instinct to slow to avoid the hazard." (T.125.24) "STUART-SMITH: Basically I am in agreement with Mr McDonald in relation to the motivation aspects of sounding the horn in that a driver's reaction to an emergency is not typically to sound the horn to an immediate emergency and consequently there is a greater likelihood that it is a more considered response. I did raise the issue in my report that an actual perception response time to a horn may be faster than braking, and I agree with Mr Keramidas in that respect that it could be, but I agree with Mr McDonald that it is not likely to be". (T.126.30) 32 On the basis of those expressions of opinion, I find that at the time that the horn was sounded, the driver had seen one or other or both of the children but that an emergency situation had not arisen so as to require emergency braking or a swerve. I cannot say whether at the same time as the horn was sounded the driver commenced to brake so as to slow the vehicle. What does seem clear from the absence of any tyre marks and from Ferhat's statement that he did not hear the screeching of brakes is that no emergency braking took place and I so find. 33 An important part of the Nominal Defendant's case against the Council is the proposition that the bushes and shrubs to the south of the cenotaph were higher and thicker on the day of the accident than they were when the experts, in particular Mr Keramidas, visited the accident site and took photographs. 34 The police took a number of photographs on the night of the accident. The Court's attention was drawn particularly to photographs 4, 16, 18 and 19. These were compared with photographs 5, 6, 8 and 11 in appendix C to the report of Mr Keramidas of 7 March 2007. From a simple comparison of those photographs it does seem that the bushes and shrubs were lower in height when photographed by Mr Keramidas. 35 This impression was confirmed by Mr Keramidas carrying out a number of tests which he explained (T.148-149). He estimated the height at which the police photographs were taken at 165-170 cms above road level. With that as his start point and using some previously measured heights of objects on the war memorial he was able to create a triangle so as to calculate the height of the bushes and shrubs above road level depicted in the police photographs. Using those calculations he assessed the height above road level of the bushes and shrubs to be 155 cms and above the level of the path within the memorial, at 135 cms. 36 By reference to those heights, Mr Keramidas concluded that a child of the plaintiff's height would have been obscured by the bushes and shrubs until just before she jumped onto the road. The closer she was to the southern edge of the east/west path (and therefore the bushes and shrubs), the more difficult it would be for a driver travelling north to see her. 37 Mr Keramidas assumed that the plaintiff was running at a speed of 4.7 metres per second when she jumped onto the road. Taking into account that assumed speed and the obstruction to the view of a northbound driver presented by the bushes and shrubs to the south of the cenotaph and taking into account the plaintiff's height, Mr Keramidas concluded that the driver would have had insufficient time to perceive the plaintiff and react to her presence. 38 Some of the other experts were critical of the assumptions made by Mr Keramidas in calculating how fast the plaintiff was moving. They pointed out that the police photographs were taken at night, whereas the accident had occurred during daylight, and that the bushes and shrubs did not present a continuous impenetrable barrier but were of uneven height and of differing thickness. This meant that the plaintiff may have been obscured from the view of a northbound driver on some parts of the path but still have been capable of being seen as she moved from the cenotaph to the western end of the path. They also assessed the maximum height of the shrubs and bushes, using similar calculations to those of Mr Keramidas, at 145 cms above road level, not 155 cms. They were of the opinion that the bushes and shrubs between the cenotaph and the western end of the path varied in height from about 110 cms to 145 cms. 39 I have concluded that the bushes and shrubs to the south of the cenotaph were capable of obscuring a child of the size of the plaintiff. Whether they did so is a different question. One is still left with the fact that the driver sounded the horn from which I have inferred that he or she must have seen one or both of the children in circumstances where at the time of that sighting an emergency situation had not arisen. Since it is not known where the child or children were located when first sighted by the driver, the part played by the shrubs and bushes in how the accident occurred cannot be established. 40 The Nominal Defendant took the Court to documents produced by the Council concerning the activities of its Landscape Maintenance Gang. Those documents showed that the gang attended the war memorial on 15 December 2004, 9 March 2005, 21 April 2005 and 19 May 2005. In relation to the attendance on 15 December 2004, no hand pruning was performed but a comment was made "needs work replacing plants". On 9 March 2005 the documents show that hand pruning was performed but no replanting. On 21 April 2005 hand pruning was performed and a diosma was replanted. 41 The documents produced by the Council were of a pro forma type which allowed entries to be made (Y for Yes and N for No) and comments to be made. One of the questions which was answered affirmatively on 19 March and 21 April 2005 was: "Is there adequate sight distance for road users to signs and traffic controllers?" 42 The Court was asked to infer that the Council through its Landscape Maintenance Gang regularly inspected the war memorial and that part of this inspection was directed to issues of safety. The Court was asked to conclude that the attendance by the gang on 9 March 2005 would have made the Council aware of the state of the bushes and shrubs and in particular their height. The Court was also asked to conclude that the attendance by the gang at the war memorial on 21 April 2005 had occurred as a result of this accident and that the hand pruning comprised remedial work to the shrubs so as to reduce their height. 43 I am not prepared to find that the attendances by the gang at the war memorial were indicative of a recognition by the Council that the shrubs and bushes around the war memorial were dangerous and required some kind of cutting back. It seems to me that the documents are consistent with an inspection and maintenance program in respect of the war memorial. I do find, however, that the attendance by the gang at the war memorial on 9 March 2005 would have made those members of the gang who performed work, aware of the state of the war memorial and in particular, the extent of the growth of the bushes and shrubs in the vicinity. 44 There is no evidence which establishes that the Council was aware that the accident involving the plaintiff had taken place in the vicinity of the war memorial. There is no evidence that the Council was aware as of 21 April 2005 that it might be implicated in, or that it might be claimed that it had some responsibility for, the occurrence of the accident. There is no evidence to support a finding that the attendance by the gang at the war memorial on 21 April 2005 took place as a result of the accident and that the work performed there that day was remedial work of some kind, which was related to the accident. The more likely explanation for the attendance of the gang at that time is that the war memorial was being tidied up for Anzac Day. 45 In the course of the cross-examination of Ms James, an employee of the RSL Club, the following questions and answers were given: "Q. You had, I take it, before the date of the accident seen that there were large bushes and shrubs around the obelisk? A. That's right, yes. Q. I think you formed the view that those bushes and shrubs blocked the view of drivers coming north? A. Yes I agree. That is a very dangerous area." This exchange was relied upon to establish that the bushes and shrubs to the south of the cenotaph were known by persons familiar with the area such as Ms James, to obstruct the view of drivers travelling north. It seems to me that little weight should be given to that evidence. It was clearly influenced by hindsight. 46 There was an issue between Mr Keramidas on the one hand and Messrs McDonald and Stuart-Smith on the other as to whether the war memorial with its paths should be characterised as a "pedestrian facility" so as to require that steps be taken to make sure that persons using it could be properly observed by approaching drivers. In response to that proposition, Mr McDonald said: "Mr Keramidas says that the facility attracts pedestrians and as such should be regarded or considered as some form of pedestrian facility, I guess, and designed accordingly. I consider that the facility does not necessarily attract pedestrians in itself. Whilst it does accommodate them by having a paved area which they may cross at, it is not at a location which is what we would refer to in engineering as on a natural desire line. There are no facilities either side that specifically direct or encourage pedestrians to cross at that particular point. Generally from my observations at the site I found that the pedestrians crossed at the nearby T-intersection of two roadways, so they cross at the intersection or they crossed on the road pavement so that they didn't need to step up onto the cenotaph. So they crossed between the parked vehicles within the median." (T.174.32) 47 Similarly, Mr Stuart-Smith said: "No I agree with Mr McDonald that it is not – the facility is not a crossing, it is a facility, it is a feature, it is unique, it is a cenotaph and I wouldn't categorise it in any other manner. It is not a pedestrian crossing. I agree with all the points made by Mr McDonald that it is not an attractive place for people to cross the road, there are more attractive places at road level." (T.178.6) 48 I find the analyses of Messrs McDonald and Stuart-Smith on this issue to be persuasive. They accord with my interpretation of the photographs. I would not characterise the war memorial as a pedestrian facility so as to require special design features and an unobstructed line of sight for drivers approaching it. Submissions and consideration 49 The Council accepted that as the entity with the care and control of the war memorial and adjoining road, it owed a duty to persons such as the plaintiff to exercise reasonable care for their safety. The Council stressed that in this case it was the scope or content of the duty of care which was important, ie what did the Council have to do to discharge its duty of care? 50 In that regard the Council relied upon the statements of principle in Brodie v Singleton Shire Council (2001) 206 CLR 512 at [160] and Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773 at [43]. It submitted that it was obliged to exercise reasonable care so that the war memorial and road were safe "for users exercising reasonable care for their own safety". It submitted that it was not obliged to ensure that the road and war memorial were safe in all circumstances. 51 The Court was taken to the following statement of principle from Dederer: "[47] The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe "for users exercising reasonable care for their own safety". The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves. … [49] In simple and complicated cases alike, one thing is fundamental: while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care. In Vairy v Wyong Shire Council , McHugh J explained: "The duty in negligence is generally described as a duty to take reasonable care. In some areas of the law of negligence, however, the duty is expressed in more limited and specific terms. Until the decision of this Court in Zaluzna , for example, the duty owed to entrants upon privately owned land varied according to the category of the entrants. They were classified as invitees, licensees and trespassers. Similarly, the duty in respect of negligent statements is more specific and limited than a simple duty to take reasonable care in all the circumstances of the case. In negligence cases involving physical injury, however, the duty is always expressed in terms of reasonable care. As Prosser and Keeton have pointed out, "the duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk". … [50] … the exercise of reasonable care is always sufficient to exculpate a defendant in an action in negligence. In Blyth v Birmingham Waterworks , Alderson B laid down the nature of the action as long ago as 1856: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." Blyth was a case in which the exercise of reasonable care was sufficient to exonerate the defendants notwithstanding the plaintiff's injuries. However, the standard of reasonable care also results in the inculpation, rather than exoneration, of defendants. In the earlier case of Vaughan v Menlove , Tindal CJ was able to say that: "The care taken by a prudent man has always been the rule laid down ... Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual ... we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe." It was therefore insufficient, in the judgment of his Lordship, that the defendant had acted "honestly and bona fide to the best of his own judgment". [51] Such an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, not the latter, is the requirement of the law. In Modbury Triangle Shopping Centre Pty Ltd v Anzil , Gleeson CJ pointed to the remarks of Brennan J in Sutherland Shire Council v Heyman and observed that: "The common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable." In Heyman , Brennan J had emphasised that the common law recognises "a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible". 52 Applying those statements of principle to the facts of this case, I accept that the obligation of the Council was to act reasonably. The question then becomes did the scope of that duty extend to cutting back the shrubs and bushes on the southern side of the cenotaph. On that issue I agree with the submission of the Council that it did not. 53 The east/west path across the cenotaph was not a recognised crossing point for The Broadway. There is no evidence that it was so used. The photographs and the majority of expert opinion indicate that it was not so used. 54 There is no evidence that the cenotaph acted as an allurement or focal point for neighbourhood children. The only evidence on the subject was that of Ms James, which was that she could not say whether she saw children there when she arrived for work between 4.30 and 5pm. The mere fact that there were residential premises in this area, as well as commercial development, does not establish that proposition. Cases such as Dederer and Vairy v Wyong Shire Council (2005) 223 CLR 442 make it clear that when analysing the scope or content of the duty of care, the analysis has to be carried out on a prospective basis not based upon what is known in hindsight. The starting point is to look at the nature of the danger assessed prior to the accident with reference to such matters as the functions of the public authority, the obviousness of the danger and the care ordinarily exercised by members of the public (Gummow J Vairy [79]). 55 As Messrs Stuart-Smith and McDonald pointed out, for it to be reasonable for a public authority such as the Council to be concerned with cutting back the height of the bushes and shrubs to the south of the cenotaph there needed to be some trigger or special characteristic which would require such intervention. 56 In evidence the proposition was put this way: "McDONALD: Certainly in terms of considering the facility attracting young pedestrians, there is nothing in the area that is a specific attractor or indicator that young pedestrians would be expected. Indeed, most of the land use in the area is probably contrary to that. For example, a licensed club being the Return Services Club to the west of the cenotaph. To the east of the cenotaph there is a light commercial or factory premises which I wouldn't expect or anticipate children to be in the vicinity. I am not aware of any other pedestrian attractors in the area such as schools in the immediate vicinity or childcare centres, for example. So I would not see there to be a need to – specifically young pedestrians at risk there. Indeed, there are many other things in road and environment that create the risk for young pedestrians. Anything from parked vehicles to items, what engineers would refer to as road furniture. Things like light poles, electricity substations, chairs and so forth that are along areas of footpaths. And indeed within medians we commonly have planting to add to an amenity and on certain types of road it actually blocks headlights. So there are many visual obstructors in the road environment that would easily conceal children. Even some of our safety measures, for example putting in place pedestrian fencing. So there are many examples where road engineering can be shown not to specifically consider the risk of young pedestrians without some trigger to show that there is a risk to young pedestrians there." (T.174.46-175) "STUART-SMITH: The only way to approach it, it's all very well to look at this after the crash and say had we done these things we could have prevented the crash, but as an engineer we have to look at these things before hand and we have to apply reason in saying it is reasonable to do this particular action, and if we as engineers went applying these principles of protecting to the utmost degree every facility here we wouldn't be able to go and protect the ones that have really serious problems and we would protect them to such an extent that the facilities we provided to protect them would cause their own hazards that could be worse than the small likelihood of a problem that we might be protecting. So it is not just a question of whether there is a risk, it has to be a perceived risk that is significant enough to warrant action. I note there has been no presentation in any report that I have seen that has said there have been so many accidents at this site, that there are reports of all sorts of problems that have occurred at this site. So my investigations have revealed have come to nought as far as finding evidence of any actual incident or crash at this particular site, so there is no justification for considering this as being a problem site. It doesn't fit into the category of anything being a particular attractor. Mr Keramidas himself says he doesn't know whether children would use it not. So if he doesn't know whether children would use it, I don't understand how he could say that we needed to have done something about it. So in general I agree with all the things Mr McDonald said in addition to those points." (T.178.23) 57 It was not suggested, nor was there evidence to support the proposition, that the cenotaph with its surrounding bushes and shrubs presented any danger to adults using it to cross The Broadway. There is no evidence of any accident at the cenotaph since its installation in The Broadway during the 1960's. While it was always possible that an unaccompanied child of small stature might come onto the cenotaph it is difficult to see why a council acting reasonably should have had that in contemplation in the circumstances of this case and should have acted pre-emptively to cut back the bushes and shrubs to such a low height that they would not obscure such a child. The Council would have to have had in contemplation not only that an unaccompanied child would come onto the cenotaph but that the child would run or jump onto the road without stopping first or checking for vehicles. 58 If it were held that for the Council to act reasonably in the circumstances of this case it would have to take account of the possible presence of unaccompanied young children in its consideration of the general road environment, the restrictions on its activities would be intolerable. It would have to remove all things that could obstruct the capacity of an 8 year old or younger child to see oncoming cars and all objects which might obstruct the vision which a driver would have of such a child. 59 The oft quoted statement of Mahoney JA in Phillis v Daley (1988) 15 NSWLR 65 at 74 remains valid when considering the circumstances of this case and the scope of the Council's duty: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: People do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed." 60 It follows that I am not persuaded that the scope or content of the duty which the Council owed to the plaintiff extended to cutting back the bushes and shrubs growing to the south of the cenotaph. 61 If one approaches the question from the point of view of breach of duty of care, as distinct from whether the duty of care required such action, the same result is arrived at. 62 When considering questions of breach of duty, one is required to follow the mode of reasoning set out in Wyong Shire Council v Shirt (1980) 146 CLR 40. The possibility of a young child, such as the plaintiff, suddenly emerging from behind the shrubs to the south of the cenotaph was foreseeable given that that test has been described as being "undemanding". In determining what response, if any, was required to that foreseeable risk, the Court is to take into account such factors as the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities of the defendant. The Court has to then balance those considerations. 63 Such an approach is not to be applied inflexibly. In Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 the following observation was made: "[2] … Moreover, depending upon what may be involved in the concept of conflicting responsibilities, in some contexts, of which the present is an example, to treat what was said in Shirt as an inflexible formula could produce a distinctly unreasonable result. Where the suggested alleviating action is putting up a single warning sign at a particular location in a public recreational area, the expense, difficulty and inconvenience involved may be made to appear negligible. The more important question may be why a public authority would choose to single out that particular spot, or that particular risk, as the subject of a warning …" (Gleeson CJ, Kirby J.) 64 Hayne J made similar observations in Vairy: "[105] … Resolving that question, a question of fact, hinges critically upon recognising that what has come to be known as the " Shirt calculus" is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim. The several questions described by Mason J in Wyong Shire Council v Shirt are to be asked and answered with that perspective … " 65 In carrying out the analysis mandated in Shirt the same considerations, to which I adverted on the question of the scope of the duty of care, come into play. The degree of the probability of the occurrence of such an accident was low. Whilst the expense and difficulty of taking alleviating action may on the face of it seem modest, it has to be looked at in the context of the size of the area for which the Council had responsibility. As was said by Gleeson CJ and Kirby J in Mulligan the more important question is not the cost of cutting back the shrubs but why acting reasonably the Council should have chosen to cut back those shrubs and bushes near the cenotaph, as distinct from any other location in the Council area of responsibility where a tree or shrub might obscure the presence of an unaccompanied child from an approaching driver. This brings into play the final factor referred to in Shirt – the other conflicting responsibilities of the council. 66 I am not persuaded that breach of duty has been established on the part of the Council. Causation 67 In order to establish causation, the Nominal Defendant had to satisfy the test of "factual causation" in s 5D of the Civil Liability Act 2002. The test of factual causation is there defined as: "(a) That the negligence was a necessary condition of the occurrence of the harm". 68 The Nominal Defendant relied upon the evidence of Mr Keramidas to establish its case on causation. It required the court to make a finding that the plaintiff ran for some distance before she jumped onto the roadway. It required a finding that the plaintiff was substantially obscured by the bushes and shrubs to the south of the cenotaph and was only seen or capable of being seen by the driver when she reached the end of the path just before she jumped onto the road. By an assumption as to her running speed Mr Keramidas concluded that there would have been insufficient time for the approaching driver to have stopped or avoided the plaintiff assuming that he was travelling somewhere between 30 and 45 kph. 69 I have concluded that the Nominal Defendant's cross-claim against the Council fails on the issue of causation. The evidence goes so far as to establish that the height of the bushes and shrubs to the south of the cenotaph could have obscured the plaintiff's presence for a driver travelling north but does not establish that it did so. The evidence is simply insufficient to enable such a finding to be made. As the findings of fact indicate, there are too many unknown factors with the only certainty being the final resting position of the plaintiff. 70 The highest at which the evidence can be put is that the height of the bushes and shrubs to the south of the cenotaph cannot be excluded as a cause of the accident and that it increased the risk of the accident occurring. That has been held to be insufficient to establish the legal test of causing or materially contributing to injury (Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 at 315-316). 71 The often quoted observation by McHugh J in Chappel v Hart (1998) 195 CLR 232 at [27] does not help the cross-claimant in this case: "If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contribute to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff." 72 The meaning of that observation was considered by Spigelman CJ in Seltsam Pty Limited v McGuiness and Anor (2000) 49 NSWLR 262: "[107] The starting point of McHugh J's analysis was that it had been established on the balance of probabilities that the conduct did create or increase the risk of injury, "and that risk had eventuated". [108] This starting point is the very matter in issue in the present case. Was there evidence on the basis of which the trial judge could conclude, on the balance of probabilities, that there was an increased risk of injury and that that risk had "eventuated" in the specific disease of the respondent?" 73 That analysis highlights the difficulties confronting the cross-claimant in this case. It has been established that the height of the bushes and shrubs to the south of the cenotaph increased the risk of the plaintiff being struck by a car and she was in fact struck by a car. What has not been established is that the particular risk created by the height of the bushes and shrubs eventuated, ie that the accident occurred because the plaintiff's presence was obscured by those bushes and shrubs. To find to the contrary would involve the very circularity of reasoning rejected by Spigelman CJ in McGuiness. Conclusion and orders 74 For the above reasons the Nominal Defendant's cross-claim against the Council fails. In view of the settlement which took place between the plaintiff and the Nominal Defendant, I am not sure what orders are required to be made by the Court and what, if any, agreements have been entered into between the parties. Accordingly, I have set out the orders which I propose to make when this judgment is handed down. Those proposed orders, however, will be subject to any submissions or advice which I receive from the parties as to agreements which have already been entered into. 75 I make the following orders: (1) I enter a verdict in favour of the plaintiff against the first defendant. (2) As between the plaintiff and the first defendant, I find that the plaintiff contributed to the occurrence of the accident by 35%. (3) I order the first defendant to pay the plaintiff's costs. (4) As between the plaintiff and the second defendant, I enter a verdict and judgment in favour of the second defendant. (5) On the cross-claim brought by the first defendant against the second defendant, I enter a verdict and judgment in favour of the second defendant. (6) I order the first defendant to pay the second defendant's costs of the cross-claim. (7) In respect of the cross-claim brought by the second defendant against the first defendant, I dismiss that cross-claim and I make no order for costs in relation to it. It is accepted that the plaintiff will have to pay the second defendant's costs. The question of whether those costs should be paid on an indemnity basis, or as agreed or assessed, is deferred for further argument. ********** 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.