Supreme Court New South Wales Medium Neutral Citation: Zraika v Walsh (No 3) [2014] NSWSC 894 Hearing dates: 23 - 25 June 2014 Decision date: 25 June 2014 Jurisdiction: Common Law Before: Campbell J Decision: I find that the traffic-count is relevant, not only to the case against the Roads and Traffic Authority but also to the case against the Bankstown City Council. Catchwords: EVIDENCE - admissibility - relevance Category: Interlocutory applications Parties: Sharif Zraika by his tutor Hamila Zraika (plaintiff); Rebecca Jane Walsh (first defendant); Joseph Bernard Walsh (second defendant); Roads & Maritime Services (third defendant); Bankstown City Council (fourth defendant); Ali Zraika (fifth defendant) Representation: Counsel: D Higgs SC with T Boyd (plaintiff); K P Rewell SC (first and second defendant); M Fordham SC with H Chiu (third defendant); R S Sheldon SC with P M Knowles (fourth defendant); G Smith (fifth defendant) Solicitors: Kheir Lawyers (plaintiff); McInnes Wilson Lawyers (first, second and fifth defendants) Hicksons Lawyers (third defendant); Mills Oakley, Lawyers (fourth defendant); File Number(s): 2011/52630 ex tempore Judgment 1The present case is concerned with a motor accident which occurred at the intersection of Woodville Road and Tangerine Street, Villawood. The plaintiff was then an unborn child. When he was born he had what are said to be, on his case, injuries of a catastrophic nature referable to the motor accident. 2He sues not only the drivers of the cars involved in the collision but also the Roads and Traffic Authority as the relevant roads authority and the Bankstown City Council. His claim against the Bankstown City Council avers that it was the consent authority for development of a "shopping complex", as it is put in the amended statement of claim, out of which the first defendant drove her motor vehicle immediately prior to the collision with the vehicle in which the plaintiff's mother was travelling as a passenger. 3Mr Rewell has tendered a report of a traffic-count carried out on 2 April 2002, about seven months before the accident, which shows, amongst other things, that persons exiting the driveway of the shopping complex were turning right across Woodville Road; were going straight ahead into Tangerine Street; and also turning left. 4One of the issues in the case relates to the consent condition that was imposed concerning the driveway opposite Tangerine Street. It is said to have been inadequate in as much as, I think I can summarise it by saying, no conditions were imposed for properly controlling traffic movement out of the driveway in a manner which would have been safe for road-users of the intersection. The facts averred in the statement of claim extend beyond the provision of the consent in as much as paragraph 24 avers that the council was aware that there were "road safety issues" about the driveway. As a particular of that awareness reference is made to police comments relating to the development application, which comments are dated 7th March 1997, and also to correspondence from some traffic engineers in May 1999. The consent was granted in 1998. 5The particulars of negligence also refer to the council allowing continuous incremental increase in traffic movement generated by the shopping complex without any proper consideration of impacts of traffic flow and safety at the intersection. 6I understand from expert's reports that I have read in preparation for the case and in advance of the experts giving evidence, that quite apart from the development consent given in 1998 for the construction of industrial units at the site, various development applications were made for the use of those individual units from time to time, and I understand as part of the case of the plaintiff, but perhaps more significantly for present purposes, the first defendant on the cross-claim, that no consideration was given to the impact of the various uses to which those individual units were put on the flow of traffic into and out of the complex including the direction of travel of exiting cars, and wether the manner and direction of their exit should be controlled by the imposition of conditions to the consent of the various applications. 7There will be a substantial legal issue in the case about whether or not the Bankstown City Council owed a duty of care recognised by the law of negligence that extends to the circumstances of the case as I have outlined them. I think for the purpose of determining this question of admissibility I should assume duty and on that assumption determine whether this material is capable of proving directly or indirectly any fact in issue. It seems to me, approaching the matter in that way, that if I accept duty and if I accept that this traffic-count is accurate; and reflects a pattern of use of the driveway applicable in 1998 as well in 2002, the traffic-count may be capable of proving some of the facts in issue going to breach of any duty I find. 8I find that the traffic-count is relevant, not only to the case against the Roads and Traffic Authority but also to the case against the Bankstown City Council. ********** 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. Decision last updated: 02 July 2014