Peter Alexander Duncan-Jones v Commonwealth of Australia [1988] ACTSC 71 (15 December 1988)

SUPREME COURT OF THE ACT

PETER ALEXANDER DUNCAN-JONES v. COMMONWEALTH OF AUSTRALIA
S.C. No. 842 of 1985
Negligence - Contributory Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - action for damages for personal injuries - plaintiff fell from his bicycle after its front wheel fell into a hole - liability as occupier no longer distinct from liability in negligence - accident occurred on highway - whether plaintiff should fail for not suing defendant for misfeasance as a highway authority - liability of authority under ordinary negligence principles.

Contributory negligence - whether plaintiff affected by liquor when injured - whether plaintiff failed to keep a proper lookout - cycling at an excessive speed - no new question of principle.

Australian Safeway Stores Proprietary Limited v. Zaluzna [1987] HCA 7; (1987) 162 CLR 479

McDonogh v. Commonwealth of Australia (1985) 73 A.LR 148 at 151

Leotta v. Public Transport Commission of New South Wales (1976) 50 ALJR 666

Water Board v. Moustakas [1988] HCA 12; (1988) 62 ALJR 209

HEARING

CANBERRA
15:12:1988

Counsel for the Plaintiff: Mr G. Lunne

Solicitors for the Plaintiff: Messrs Phelps Reid

Counsel for the Defendant: Mr C. Irskine

Solicitors for the Defendant: Astralian Government Solicitor

ORDER

1. There be judgment for the plaintiff in the sum of $4,872.72.

2. The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries. The plaintiff received his injuries at about 3 a.m. on a date in May 1985. He was riding his bicycle eastwards in University Avenue and the front wheel fell into a hole in the paved area in front of the Family Court building. He fell to the ground thus sustaining his injuries. In his original statement of claim the plaintiff alleged that the date of injury was 25 May 1985 but at the hearing this was amended to add an alternative date, namely 4 May 1985. Not a great deal turns on the date. A report from the Assistant Clinical Superintendent of the Royal Canberra Hospital states that the plaintiff attended there at the Accident and Emergency Centre on 4 May 1985 at 3.10 a.m. having been involved in a bicycle accident. It further states that the plaintiff returned for treatment on 11 May 1985. There is an unsworn statement in evidence pursuant to s.28 of the Evidence Ordinance 1971 from a Mr. John Rose who, the plaintiff says, was riding with him at the time of the injury. In it Mr. Rose stated that the event occurred in the morning of 25 May 1985. The statement was not made until 30 July 1986. Mr. Rose was not available for cross-examination. I find on the probabilities that the incident occurred in the early hours of 4 May 1985.

2. University Avenue is shown in the original Plan of Layout of the City of Canberra and its Environs published under 5.4(1) of the Seat of Government (Administration) Act 1924 on 19 November 1925. On the evidence in the case the subseguent history of the western end of University Avenue is somewhat obscure. What is clear, however, is that by the time of the plaintiff's injury, University Avenue was blocked off for vehicular traffic some short distance west of the intersection with Childers Street, apparently at the boundary of the Australian National University. The plaintiff had ridden his bicycle on a bicycle path within the grounds of the Australian National University and emerged therefrom onto the paved area in front of the Family Court building. Two friends were riding their bicycles behind him. I find that, on the evidence before me, where he was injured was still Dart of University Avenue, not available for use by vehicular traffic, but used by cyclists going to and from the Australian National University and by pedestrians going to and from the Australian National University and to and from the Family Court.

3. The plaintiff did not see the hole before the front wheel of his bicycle fell into it. He later observed the hole to be about four feet in diameter and about six inches in depth. There were about three such holes in the thirty metres or so of paved area between the boundary of the Australian National University and Childers Street. There was a ramp set into the kerb at Childers Street, a fact which is supportive of the allegation made on behalf of the plaintiff that the area was in use by cyclists. The ramp may have been intended also for use by persons in wheelchairs and was likely to have been so used. Sometime after the plaintiff's injury trees were planted in the holes referred to. The trees are now prospering. There are about three or four posts set into the hole around each of the trees. There are and were at the time street lamps supported by metal poles set into in the paved area. Two of these appear to be some twenty or thirty metres east and west respectively from the hole into which the plaintiff fell. The plaintiff claimed in evidence that the area was poorly lit, but he did not make observations at the time, nor since, in relation to the lighting. In my view, it is likely that the area was moderately lit.

4. The plaintiff's bicycle was equipped with battery powered front and rear lamps. However, as the evidence of Dr E.D. Radcliffe established, the front lamp was unlikely to throw out a beam of light sufficiently strong to provide useful illumination ahead of the bicycle. Its effective function was limited to alerting others of the presence of the bicycle.

5. The plaintiff said in his evidence that he was proceeding at about twenty-five kilometres per hour at the time the front wheel fell into the hole. He said that he averaged twenty-five to thirty kilometres per hour when he rode around the Canberra area.

6. The plaintiff brought his claim in negligence and for breach of occupier's liability. It is now conclusively established that the duty owed by an occupier to an entrant upon premises is simply the normal duty to take reasonable care where the law recognizes a duty of care. (See Australian Safeway Stores Proprietary Limited v. Zaluzna [1987] HCA 7; (1987) 162 CLR 479.) The point was made on behalf of the defendant that the plaintiff was restricted by his pleading to a cause of action in negligence and that as the place where the incident occurred was part of a highway, the plaintiff's claim could only succeed if he sued the defendant for misfeasance as a highway authority. As the plaintiff had not framed his case in that way it was submitted that the plaintiff must fail. The submission may be put another way. The statement of claim alleges that a duty of care arose simply because the defendant was the occupier of the land upon which the plaintiff was injured and that the plaintiff was a member of a class of persons who might reasonably be expected to be upon the land and to use the land in which it was used by the plaintiff The defendant therefore takes the Point that the duty owed by a highway authority to a person injured on the highway is not the duty of care upon which a plaintiff iS entitled to rely in an action in negligence, and breach of the duty of a hiahway authority on the Part of the defendant is not pleaded by the plaintiff.

7. The defendant relied upon the following passage of the majority judgment in McDonogh v. Commonwealth of Australia (1985) 73 ALR 148 at 151:
"Much of the arqument before us related to the

question whether the Commonwealth was, in the
circumstances, to be treated as a highway
authority, and governed by the principles affecting
the liability of such an authority. His
Honour found that it was; and that it could not
be made liable separately as an "occupier" of the
road. We do not find it necessary to come to a
conclusion on these matters, but our present view
is that his Honour's conclusions were right. We
should add that the position of the Crown does
not rest on the same historical basis as that
affecting highway authorities (Wakely v. Lackey
(1880) 1 LR (NSW) (274); Miller v. McKeon [1905] HCA 33; (1905)
3 CLR 50), and it may be that some differences
exist between the two situations."

8. I do not read the judgment in McDonogh's case to support the contention now made on behalf of the defendant that a plaintiff who sues a defendant as a highway authority is not entitled to rely upon negligence on the part of the defendant. In fact McDonogh's case decides exactly the contrary, namely that the defendant was liable as a highway authority for misfeasance, and that the misfeasance in the circumstances of the particular case was constituted by negligent maintenance of the road. Nor do I take the case as authority for the proposition advanced by the defendant that in choosing to sue a highway authority simply in negligence the plaintiff must fail on the ground that a highway authority does not owe any general duty of care at all to users of the highway. Again McDonoah's case 15 authority to the contrary, namely that a highway authority is at least in certain circumstances under a duty of care to persons who are likely to use the highway. No doubt according to the old law, the immunity of a highway authority recognized in England and Australia "negates both a general duty to rePair (sounding in nuisance) and any specific obligation to exercise care and control and management even with respect to known dangers (negligence)": Fleming, The Law of Torts 7th ed. p 404. However, as McDonoqh's case illustrates, when a hiahway authority carries out work on the highway which may result in injury to persons using the highway, then a duty of care is created which is the ordinary duty of care in negligence whereby the authority is bound to exercise reasonable care to minimise the risk of such injury.

9. If an action against a highway authority for damage arising out of misfeasance is to be regarded as a separate tort from the tort of negligence, then it is desirable that the statement of claim makes it clear that the plaintiff relies upon the separate tort. For the purposes of the present case I do not propose to decide whether there is a separate tort or not. Aaain, whilst I acknowledge that the pleadings should reflect the precise issues between the parties, the Court should decide the actual dispute as it turns out on the evidence, if necessary allowing the plaintiff to amend the statement of claim after the close of evidence (see Leotta v. Public Transport Commission of New South Wales (1976) 50 ALJR 666; Water Board v. Moustakas [1988] HCA 12; (1988) 62 ALJR 209). The defendant is upon full notice of what is alleged by the plaintiff. There is no dispute that the land in question was vested in the Commonwealth, that it was in fact used and likely to be used by pedestrians and cyclists like the plaintiff as a means of access between the Australian National University and Childers Street in the city. The holes were obviously placed in the paved areas by someone on behalf of the Commonwealth so that a line of trees could be planted. A line of trees was subsequently planted. Posts could have been Placed in the holes as posts were subsequently placed. There is no explanation from the defendant as to why they were not placed on the night the plaintiff was injured. The holes were obviously likely risk to persons like the plaintiff who might reasonably be expected to cycle across the area at night. Insofar as the defendant may be regarded as a highway authority, the plaintiff's injury ocurred as a result of the misfeasance of the defendant, namely doing work to the highway by providing holes for the planting of trees and failing to Properly fence the holes immediately prior to the Plaintiff's injury. If the defendant is not sued as a highway authority it is guilty of negligence in any event, for the same reason. The plaintiff is therefore entitled to succeed against the defendant.

10. One of the particulars of contributory negligence is that the plaintiff rode "when his capacity to ride was affected". I take it that this is an allegation that the plaintiff having consumed liquor some time before the incident was still affected when the injury occurred. However, the only evidence is that the Plaintiff consumed two beers over a period of some hours. That evidence is not inherently implausible and I accept it. Despite the lateness of the hour there is no evidence that the plaintiff was drowsy, or that his capacity was in any other way affected. Hence, I find that the defendant has not established this particular of contributory negligence The other allegations of contributory negligence are failure to keep a proper lookout and riding at a speed excessive in the circumstances. The plaintiff did not make a Proper assessment or observation of the lighting conditions. On the evidence I hold that the area was moderately but not well lit. The plaintiff ought to have known and did in fact know that the paved area in front of the Family Court, whilst commonly used by cyclists, was an area used substantially if not in the main by pedestrians. The paved brick surface was not such that the defendant would be expected to treat it as if it were a roadway of a continuous bicycle path. In view of the facts that the area was not intended predominently as a bicycle path and because of the poor lighting conditions, it was incumbent upon the plaintiff, in my view, to be particularly vigilant when he was crossing the paved area. On his own evidence, he was travelling at about twenty-five kilometres per hour. His headlamp was of little assistance in illuminating the area in front of his bicycle. The frame of the bicycle was bent and the front wheel badly buckled as a result of falling six inches into the hole. The plaintiff refused to concede in cross-examination that he should have been travelling more slowly at night than during daylight. All this, in my view, is suggestive of a comparatively high rate of speed. Accordingly, I find that in failing to keep a proper lookout and in riding at an excessive speed, the plaintiff was guilty of a failure to take care for his own safety. I think that his failure contributed substantially to the injuries he sustained and that his damages should be reduced by forty percent accordingly.

11. I turn now to the question of damages. The plaintiff appears to have suffered a nasty fall, with his face impacting on the brick surface. He lost vision for a few minutes. His friends rang for a taxi and he was taken to the Royal Canberra Hospital and found to have sustained lacerations to the right eyebrow, contusion to the right eye and laceration to the right ear. The laceration of the right eye was six centimetres in length and required seven sutures. A laceration over the right ear required two sutures and the laceration inside the ear one suture. He was allowed home. The sutures were removed on 11 May 1985. The wounds took about six to eight weeks to heal, but there was good union. Soreness around the right shoulder and back lasted about two weeks only. The plaintiff lost three days from his Part-time employment as a bicycle mechanic, on 25, 27 and 28 May 1985. His loss of earnings for those days is agreed at $247. Out-of-pocket expenses are agreed at $480.

12. On 24 March 1986 the plaintiff consulted Dr Webber, a general practitioner, who furnished a report. The plaintiff complained of a tendency in the right eye to water, but Dr Webber felt that this was due to a previous injury. The plaintiff complained also of a twitching over the right eye which Dr Webber thought was due to the 1985 injury in respect of which he sues. The plaintiff was referred then to Dr Brown, a plastic and reconstructive surgeon, who reported on 4 July 1986. Dr Brown's view was that the scar on the forehead will be Permanent but will be a minor cosmetic disability only. In Dr Brown's opinion surgical revision of the scar will not lead to any significant improvement.

13. Dr Frumar, an ophthalmic surgeon, reported on 12 October 1988 that if there was any twitching of the right eyelid, which the doctor doubted, it was related to stress or some sort of infection, but had nothing to do with the laceration. In the area of the laceration itself there was no sensory abnormality or dysaesthesia. In fact Dr Frumar could not find any evidence of twitching of the eyelid at the time of the examination.

14. I have observed the scar over the plaintiff's right eye and agree with Dr Brown's opinion. The scar is quite apparent, but it is not nearly as noticeable as other scarring under the plaintiff's right eye and scarring on the plaintiff's chin, both of which are most noticeable. The scarring over and inside the ear is not noticeable at all.

15. Although, as I have said, the plaintiff suffered a nasty fall at the time and required his wounds to be sutured at the hospital, he had, apart from the cosmetic disability, fully recovered within a period of two months and lost only three days from work. I think that the sum of $5,000 damages is adequate in all the circumstances, to which is to be added special damages of $727, making a total in all of $5,727. That is to be reduced by forty percent for the plaintiff's contributory negligence, leaving $3,436.20. To that is to be added interest which I award at 7 percent for three years and seven months, a figure of $1,436.52, which added to the net figure for damages gives the sum of $4,872.72 for which the plaintiff is to have judgment. I order the defendant to pay the costs of the plaintiff in accordance with the Rules.