DISTRICT COURT OF QUEENSLAND
CITATION:
Bryant v Competitive Foods Australia Pty Ltd & Ors [2018] QDC 258
PARTIES:
DAVID GEORGE BRYANT
(Plaintiff)v
COMPETITIVE FOODS AUSTRALIA PTY LTD ACN 010 542 908 trading as HUNGRY JACK’S ANNERLEY
(First Defendant)BRISBANE CITY COUNCIL ACN 002 765 795
(Second Defendant)WAYNE BLOW & PARTNERS PTY LTD ACN 010 796 979
(Third Defendant)FILE NO/s:
BD 1625/15
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
17 December 2018
DELIVERED AT:
Brisbane
HEARING DATE:
20-24 August 2018; 27-30 August 2018; 21 September 2018
JUDGE:
Jarro DCJ
ORDERS:
Judgment for the defendants
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OCCUPIERS – where defendant admits it owes a duty of care to minimise risk of a foreseeable injury to entrants on the premises –where the plaintiff is the driver of a motor vehicle which causes death or injury to another person and suffers pure psychiatric harm – whether the scope of the duty of care extended of pure psychiatric harm
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – LOCAL AUTHORITIES – where the plaintiff alleges that a local authority owes a duty to the public when exercising statutory powers as assessment manager of a development application – where a local authority approves a modification or re-configuration of a driveway access and pedestrian crossing – whether the local authority exercises control – whether the plaintiff is in a position of vulnerability and reliance in relation to the local authority – whether the scope of the duty of care extended of pure psychiatric harm
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – where a defendant to the proceeding is a firm of architects – whether the architects exercised reasonable care and skill in the provision of architectural services in respect of matters within the scope of its instructions – whether the scope of the duty of care extended of pure psychiatric harm
TORTS – NEGLIGENCE – ESSENTIALS FOR ACTION FOR NEGLIGENCE – STANDARD OF CARE – whether the occupier discharged its duty by retaining skilled contractors – where the occupier retained experts to design a safe system for movement of pedestrians and vehicles – whether the local authority breached its duty in approving site plans – whether the architects took reasonable steps to guard against foreseeable risks in relation to entrance to the property – whether the architects acted in a way widely accepted by peer professional opinion
TORTS – NEGLIGENCE – ESSENTIALS FOR ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – whether the design of a driveway and/or carpark, the presence of a hedge obstructing the view of pedestrians and drivers, and/or the absence of warnings signs were causative of the accident
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the plaintiff had attended the premises five times prior to the accident – where the plaintiff was distracted by something causing them to look up and down as they drove the vehicle
DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – where plaintiff claims general damages for the psychiatric harm – where plaintiff suffers post-traumatic stress disorder or PTSD – where the plaintiff claim the costs of defending a related criminal proceeding as special damages
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR NEGLIGENCE – REMOTENESS AND CAUSATION – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY– where plaintiff suffers pure psychiatric injury – where the plaintiff alleges a diminished ability to contribute the gross income of the business because of the psychiatric injury – where there is an insufficient causal link between defending a criminal proceeding and the psychiatric injury
Civil Liability Act 2003 ss 11, 22, 55
Becker v Sutherland Shire Council [2006] NSWCA 344
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649
Chapman v Hearse (1961) 106 CLR 112
Chappel v Hart (1998) 195 CLR 232
Habib v Nominal Defendant (NSW) (1995) 22 MVR 454
Husher v Husher (1999) 197 CLR 138
Kuhl v Zurich Financial ServicesAustralia Ltd (2011) 243 CLR 361
Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280
Leichardt Municipal Council v Montgomery (2007) 230 CLR 22
Mahony v Kruschich (Demolitions) Pty Ltd [1985] HCA 37
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Palmer & Orsv State of Queensland [2015] QDC 63
Sullivan v Moody (2001) 207 CLR 562
Tame v New South Wales (2002) 211 CLR 317
Vairy v Wyong Shire Council (2005) 223 CLR 422
Voli v Inglewood Shire Council (1963) 110 CLR 74
Wallace v Kam (2013) 250 CLR 375
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
COUNSEL:
R Myers for the Plaintiff
A P G Collins for the First Defendant
B F Charrington for the Second Defendant
J J Baartz for the Third Defendant
SOLICITORS:
Shine Lawyers for the Plaintiff
Carter Newell for the First Defendant
Barry.Nilsson. Lawyers for the Second Defendant
Moray & Agnew Lawyers for the Third Defendant
Tragedy occurred on 26 April 2012 at approximately 12:30 pm when a three-year old child was fatally injured within the Hungry Jack’s Annerley carpark. The plaintiff, Mr David Bryant, was the driver and sole occupant of his 4WD Nissan Patrol utility when he approached in a southerly direction along Ipswich Road, Annerley, turned left into the Hungry Jack’s Annerley driveway and proceeded through the carpark towards the entry to the drive through facility. Within the carpark there was a pedestrian crossing which provided access for pedestrians to the restaurant. As Mr Bryant entered the carpark, he drove through the pedestrian crossing. As he drove through the pedestrian crossing, Mr Bryant’s utility struck the deceased child (“the accident”).
Mr Bryant developed a psychiatric injury following the accident and seeks to recover damages for personal injuries against three parties – Competitive Foods Australia Pty Ltd which trades under the name of “Hungry Jack’s Annerley” (“Hungry Jack’s”), the Brisbane City Council (“BCC”) and Wayne Blow & Associates Pty Ltd (“the Architects”).
Liability and quantum are in dispute. The gravamen of Mr Bryant’s complaint relates to the design (including approval) of the driveway and carpark. Hungry Jack’s admits that it owed Mr Bryant a duty to take reasonable care for the safety of entrants upon its premises, but denies that it breached its duty, and contends that even if it did, the breach was not causative of Mr Bryant’s psychiatric injury. BCC has denied that it owed Mr Bryant a duty of care, and even if it did, it did not breach its duty or cause Mr Bryant’s psychiatric injury. Likewise the Architects deny that they owed Mr Bryant a duty of care, and say that if they did, they did not breach their duty of care and that any breach (which is denied) was not causative of Mr Bryant’s psychiatric injury. Further, all defendants assert that Mr Bryant was contributorily negligent.
For reasons to follow, I find:
(a) BCC and the Architects did not owe Mr Bryant a duty of care in the manner asserted by Mr Bryant.
(b) There was no breach of duty by any of the defendants.
(c) Mr Bryant has not established causation.
(d) Any assessment of Mr Bryant’s damages is reduced by 90% because of contributory negligence.
(e) Save for the finding of contributory negligence, Mr Bryant’s damages against Hungry Jack’s is otherwise assessed at $219,368.00 or $264,593.00 against BCC and the Architects.
Agreed Facts
Relevantly the following material facts[1] were agreed between the parties:
[1]Exhibit 1.
…
6.On or about 26 April 2012:
(a)The first defendant occupied real property at 564 Ipswich Road, Annerley in the State of Queensland described as Lot I on RP 199412, County of Stanley, Parish of Yeerongpilly (“the premises”);
(b)The first defendant operated a Hungry Jack’s fast food restaurant and drive through facility on the premises (“the restaurant”).
7.There was located at the premises a drive through facility whereby vehicles could enter the premises for the purposes of ordering and receiving food from the restaurant without leaving their vehicle (“the drive through facility”).
8.On or about 26 April 2012 at between approximately 12.30pm and 12.35pm:
(a)The plaintiff was driving the vehicle in a southerly direction along Ipswich Road, Annerley in the State of Queensland;
(b)The plaintiff turned left from Ipswich Road into the driveway; and
(c)The plaintiff proceeded to drive the vehicle through the car park towards the entry to the drive through facility.
9.There was located on the premises a pedestrian crossing which, inter alia, provided access to pedestrians to the restaurant.
10.The plaintiff entered the premises and proceeded, inter alia, to drive through the pedestrian crossing.
…
13.When proceeding across the pedestrian crossing the plaintiff was unaware that the vehicle had struck the child.
14.As the vehicle entered the premises there was located on the left-hand side parking spots for two vehicles.
15. The design of the entry to the premises was that:
(a)Motor vehicles could enter the premises from Ipswich Road via a 4.5 metre wide one-way entry driveway which was angled at approximately 60 degrees;
(b)In the direction of travel from the entrance of the driveway into the car park there was situated a pedestrian crossing;
(c)The pedestrian crossing led from the northern side of the car park to the restaurant;
(d)Drivers entering the carpark from Ipswich Road intending to enter the drive through facility needed to travel over the pedestrian crossing.
16.The pedestrian crossing was in the region of a children's playground which was visible from outside the restaurant.
17.At all material times, Ipswich Road provided three lanes for traffic heading in a southerly direction.
18.On or about 20 September 1999, the third defendant, on behalf of Selden Pty Ltd submitted a development application to the second defendant for "extensions and alterations to existing fast food store" at 574 Ipswich Road Annerley (“the application”).
19.The second defendant was the "assessment manager" for the application pursuant to section 3.1.7 of the IPA.
20.The application attached the third defendant's architectural plans 2020-5OA-TP1 and TP2 dated 31 August 1999 (“the Architectural Plans”) and the Architectural Plans showed the retrofitting to the restaurant of:
(a)A covered outdoor play area;
(b)Additional outdoor dining area adjacent to the new outdoor play area and to the area recovered from the existing outdoor play area;
(c)A second drive through service window including a redesign of the associated service window modules; and
(d)An internal dedicated party room.
21.
(a)On 18 October 1999 the second defendant made an information request to Selden Pty Ltd under section 3.3.6 of IPA in relation to the application (“the Information Request”);
(b) The Information Request stated inter alia:
i."1. The applicant is requested to submit amended drawings which provide for safe and convenient movement of pedestrians from the existing car parking area along the eastern boundary of the site into the restaurant."; and
ii."2. the applicant is requested to demonstrate compliance with section 19.10 of the Transitional Planning Scheme in respect of non-discriminatory access."
22.The third defendant responded to the Information Request by way of letter dated 26 October 1999 to the second defendant (“the Response”). The response:
(a)Was written by the third defendant on behalf of the Applicant, Selden Pty Ltd.
(b)Attached eight (8) copies of the amended architectural plans 2020-50A-TP1A and 2020-50A-TP2A (“the Amended Architectural Plans”).
23.On 11 January 2000 the second defendant approved the Application in accordance with s 3.5.15 of the IPA subject to conditions and in accordance with the Amended Architectural Plans.
24.On 21 March 2000, the second defendant sent a facsimile communication to the third defendant enclosing a document entitled "Section B Design Requirements (“the Design Requirements”).
25.By the Design Requirements, the second defendant instructed the third defendant to document the design on the vehicle access to the Property from Ipswich Road in accordance with C1 driveway dimensions and the sketch documented in the Design Requirements.
26.The sketch documenting the Design Requirements referred to above was consistent with C1 driveway dimensions and depicted the driveway as:
(a)One way entry only from Ipswich Road;
(b)A sixty degree angle; and
(c)4.5 metres wide.
27.On 27 March 2000, the third defendant provided the second defendant with a sketch of the driveway in accordance with the Design Requirements.
28.On 28 March 2000, the third defendant spoke to Rory Kelly, Senior Town Planner of the second defendant (“the Conversation”) wherein:
(a)Mr Kelly advised the third defendant that he wanted to retain the alignment of the driveway and reduce the width of the driveway;
(b)The third defendant suggested that a traffic engineer be engaged to visit the site and make recommendations for submission to the second defendant; and
(c)Mr Kelly advised the third defendant that he was prepared to review an engineered solution.
29.After the Conversation, on or around 28 March 2000, the third defendant, on behalf of Selden Pty Ltd, engaged Beard Traffic Engineering Pty Ltd, a traffic engineer, to provide advice on the desirability, in traffic planning terms, of the driveway.
30.On 5 April 2000, Beard Traffic Engineering Pty Ltd provided advice (“the Traffic Engineer's Advice”).
31.On 5 April 2000, the third defendant forwarded the Traffic Engineer's Advice to the second defendant.
32.On 8 May 2000, the second defendant sent a facsimile to the third defendant advising the third defendant that the second defendant approved the driveway as depicted on sketch 1 attached to that facsimile.
33.In accordance with the approval from the second defendant on 11 January 2000, as refined by the subsequent approval of the final plans on 8 May 2000, the development works were conducted in or about 2000.
Liability
The Accident
Mr Bryant had been to Hungry Jack’s about five times prior to the accident.[2] He was aware of the existence of a children’s play area immediately adjacent to the restaurant.[3] He was aware of the existence and location of the pedestrian crossing.[4] He was also aware that children and adults may be in the vicinity of the pedestrian crossing and carpark.[5]
[2]T1-81, line 39.
[3]T1-56, line 6 – 8 and T1-82, line 30.
[4]T1-81, lines 42 – 46.
[5]T1-82, lines 30 – 46.
On the day of the accident, Mr Bryant was driving in his 4WD Nissan Patrol utility. He was travelling along Ipswich Road, Annerley. He turned left onto the driveway and into the carpark. The following passage is extracted from Mr Bryant’s evidence- in-chief:
Had you done that previously? Had you ever been there before?---Yes, yes.
You knew the area well?---Yes.
All right?---And then as I come through, there was a car coming out of the drive-through so I come through and stopped, like, pretty much came to a stop and hesitated because I wasn't sure if he was going to come out and we have a crash there, and then he sort of braked and then I braked and then he waved and I gave him - like, you sort of give your thumbs up, and then as you come around the corner, that's when I slowed down. I was in first gear. So to get my utility into first gear, you pretty much have to come to a stop. It's a 4-wheel drive. So I was just coastering through there.
All right. And where were you – you were in a Nissan?---Yes.
Nissan utility?---Yes.
And where were you when, as you say, you’ve looked at this fellow and got the thumbs up from him to proceed?---Just past – like, just as you come in the driveway.
So - - -?---So he’s on the right-hand side there.
Were you beyond the footpath, or - - -?---No, I was pretty - - -
- - - were you still on the - - -?---My back end would have probably still been on the footpath.
And, what, your front end on the Hungry Jack’s - - -?---Yes.
- - - driveway?---Yes.
All right. Did you – you obviously – to you see the fellow giving you the thumbs up, you’ve looked at him?---Yep
Were you concentrating on him, or looking around anywhere else?---No, not at all. I was full aware of my situation, or where I was.
All right. Well, what were you doing? Just tell his Honour where you were – just progress with your description, and tell his Honour where you were looking and what was going on, as you saw it, from time to time?---So as I came in, we hesitated, and then I sort of gave him the “Yep, it’s all good,” like, “I’m going.” So then I rolled down the hill, and then, in the car park, when you’re coming up to the pedestrian crossing on where it is, there’s a car that – there was a car sitting on my left-hand side. Now, the building is very sharp on the right-hand side, so you can’t see if somebody’s walking out from the left or the right; you have to pretty much be upon it before you can see. So I come through there pretty slow. Like, I was – I would have – I was in first gear; I didn’t have my foot off the clutch. Like, it was – like, I was going pretty slow. And then, as I come through the – through past the pedestrian crossing, I remember looking left, looking right, looking left; there was nobody there. On both sides, on the pedestrian crossing, that is. And then, as I come down the hill, that’s when - - -
Okay. Just let me [indistinct] there – when you look to the left and look to the right and saw that there was no - - -?---Cars, nor a person.
- - - traffic that was going to impede you on the - - -?---Yes.
- - - pedestrian crossing, where would you put yourself with respect to the pedestrian crossing? Where was the utility?---Pretty much just in line. So my utility would have been coming up to the pedestrian crossing.
All right. Your – the bumper bar would have been encroaching - - -?---Yes.
- - - over the side, you would think?---Yes.
And do you recall looking to the left?---Yes.
And what did you see?---When I looked left, because of the way the sun was sitting that day, being midday, the sun was shining through my front quarter glass. So on the – my left-hand side site was the vouchers that my ex-wife had bought. And I remember seeing, when I looked left, the reflection shining. Like, you could – not – it’s not a reflection, but it was highlighted, you could say.
The voucher on the front seat was - - -?---Yes.
- - - highlighted by the sun?---Yes.
All right. But did you look down? The – had you got to a stage to look down the pedestrian crossing, or were you still approaching - - -?---No, I would have - - -
- - - to get your left-hand look?---I would have been down the pedestrian crossing by that stage.
Right. And did you see any?---Nothing at all.
All right. Were you looking at all to your right, as you were proceeding over the crossing?---Yes, I looked right, yes. There was nobody there at that point in time. There was a person pushing a pram, down on the corner of the building.
And that was looking right to see if anyone was using the pedestrian crossing to come out of the - - -
MR BAARTZ: Your Honour, can I object - - -
WITNESS: Yes.
MR BAARTZ: - - - to leading by Mr – I just ask Mr Myers not to lead.
HIS HONOUR: Mr Myers.
MR MYERS: Yes, I will. What was the purpose of looking to your right?---To see if there was any traffic on the pedestrian crossing.
Well, just tell his Honour what happened next?---As I rolled down the hill, my front left-hand side started coming down. So I don’t know if youse have been four-wheel driving, or anything like that, or if you get a flat tyre, especially in the front of a four wheel drive, it – the front of my car started creeping down – thing. So I was under the impression that – because I come off of a job site with Neil, and there’s reo on – like, they used crushed concrete on the front of the driveways that you’ll see on all of the construction sites, to get the mud off of your tyres before you go onto the road. And I thought there might have been some steel in my tyre, or something like that. So I was under the impression that I had a flat tyre. So as I come through the pedestrian crossing, and then I was – my – half of my utility was past it – my front started creeping down, and then that’s when I thought, “Okay, I’ve got a flat tyre. I’ll come down and pull in left.” And that’s why I drove down another six metres to pull into a car park on the left-hand side. And as that happened, I got down six metres, and a bloke ran out and started trying to lift the front of my car up. And hit – and I thought he was on drugs at the beginning of it, because he’s hitting my car and trying to lift the front of it. I wasn’t quite sure what he was – what he was doing, at all.
Did you get out of the car?---Not straightaway, no. I didn’t know. So I – he started hitting my window, telling me to back the fuck up. And I’m thinking that he wants to fight me. So he keeps hitting the window, and he’s going, “Back it up. Back it up.” And I’m like, “Back what up, mate? Like, I don’t understand what you’re saying.” So then I’ve wound down the window, and then, as I’ve wound down the window, he’s like, “Reverse back.” So that’s when he ran back around to the front of the car, I put it in reverse. And then he went picture-white. I’ve never seen somebody go so white in my life. And that’s where he just sat there, I suppose you could say, put his hands up over his head. He didn’t know what to do. And that’s when I got out of the car, and then walked to the front, and then – that’s where [the child] was.[6]
[6]T1-56 – T1-59. Mr Bryant was interviewed by Police on the day of the accident (Exhibit 2, CD) which was largely consistent with his evidence at trial.
Shortly prior to the accident, Ms Tse Lyn Yu, accompanied by her work colleague Mr Jason Skennar, was at the Hungry Jack’s site planning to have lunch. She and Mr Skennar parked their car. As they were walking towards the entrance of the restaurant, she saw the child and his mother as they were walking up the walk way “at the other side of the pedestrian crossing” and “behind the yellow” bollard. She also observed Mr Bryant’s utility driving into the carpark. She did not see the driver’s face at that point. She next “heard a thud”, “a hitting sound” and “something crack”. She kept the car under observation and saw the driver “focussing on something else” because “his head was looking down”. She said the car did not slow down or break until a number of people rushed closer to the utility asking the driver to back off. The driver then got out of his car. One of the first observations Ms Yu noticed about the driver as he got out of the car was that he was briefly holding a mobile phone on his right hand and then removed an ear piece. She said that he was “not focussing on the road” and was “looking to and fro, down and up, down and up”.[7] Ms Yu was extensively cross-examined, but her evidence particularly regarding Mr Bryant’s conduct after the impact remained unwavering.
[7]T5-38, line 35.
Ms Yu’s work colleague Mr Jason Skennar said that after parking his car with Ms Yu, they were walking towards the entrance of the restaurant. He saw a white utility entering the carpark from Ipswich Road. He also observed the child and his mother. He explained that “the child was running ahead of the mother”.[8] In his view, the driver “seemed a bit distracted as he was driving in” in that he was “kind of looking up and down”.[9] Mr Skennar said that as the child ran past the bollards, he was struck “probably on the passenger front side”.[10] When asked by Mr Collins of counsel who appeared for Hungry Jack’s, Mr Skennar said:
[8]T7-39, line 45.
[9]T7-40, lines 24 – 37.
[10]T7-40, lines 39 – 40.
…once everyone has realised what’s happened, he’s pushed the car – two gentlemen – two to three gentlemen have started pushing the front of the car. The gentleman driving the car has stopped, handbrake, hopped out. That’s when I observed he - - -
Where were you at this stage?---I was on the path in the vacant car park looking directly at the driver.
All right. You were about to say you observed something when he hopped out of the car?---I observed – as he’s hopped out of the car, he’s had something in his hand and he’s had his earphones attached - - -
Yes?--- - - - which I assumed he’s had his phone in his hand then.
Can I ask you there, before the impact had you been able to identify whether he had a phone at all?---No.
Right. Did you – were you able to identify whether or not he had headphones on?---No.
Okay?---No.
Anyway, he’s got out of the car with the headphones on?---He’s hopped out of the car with that on.
Yes?---Phone in the hand and he’s yelled out, “What have I done?” At that point we’ve all yelled out, “You’ve hit a child. Move your car back.”
Yes?---He’s reversed off the child. He’s walked away from – his words were, “I cannot” – “I can’t look at that.”[11]
[11]T7-41, lines 13 – 42.
Ms Emily Downes was also at the scene of the accident with her mother, Ms Kathy Downes. They had just had their lunch and were returning to their parked car. As she exited the restaurant, she heard what she described as “a bang and a screeching noise”. [12] She described a “lady on the other side of the crossing drop[ping] a handbag and running to the front of the vehicle”.[13] Ms Downes proceeded to the front of the car and she saw Mr Bryant in the front seat of his car.[14] He had “white earphones in his ear”.[15] The vehicle reversed and she said Mr Bryant got out of his car and said words to the effect of “I don’t want to see that”, “I don’t want to know what happened do I?”.[16] Under cross-examination by Mr Charrington of counsel who appeared for the BCC, Ms Downes recalled seeing the driver as he exited the car with a phone or iPod in his right hand.[17]
[12]T8-4, line 19.
[13]T8-7, lines 25 – 31.
[14]T8-6, line 11.
[15]T8-6, line 27.
[16]T8-6, lines 40 - 41.
[17]T8-7, line 43 – 46.
Ms Kathy Downes, a person of some 30 years first aid experience, assisted the injured child into the recovery position. She had no interaction at all with Mr Bryant.
Senior Constable Mark Dent of the QPS Forensic Crash Unit arrived at the scene of the accident at approximately 2pm and performed a crash investigation which required, inter alia, the taking of measurements, creating a forensic plan, photographing the scene and gathering evidence from video footage and witnesses.[18] Under cross-examination by Mr Myers of counsel who appeared for Mr Bryant, Senior Constable Dent accepted that there were no traffic or other advisory signs within the carpark.[19] Senior Constable Dent was also cross-examined about a green plastic foliage on the hood of Mr Bryant’s utility. The following exchange occurred between him and Mr Myers:
[18]T6-62, line 36. See also Exhibit 2, Tab 3.
[19]T6-68, line 30.
But for the purposes of this case, the plant has no role to play or is what you ultimately determined?---It was never explained to me why it was there, it was unlawful to have it there and it was just one more thing to take away the plaintiff’s view of possible obstructions.
You didn’t think it played a role, did you?---Well, as I said, it’s one of the factors. There was quite a few - - -
Well, you investigate - - -?--- - - - and that was just one. I’m sorry?---Well, that was just one. I mean, you know, it was never explained to me why it was there. If someone wanted to say to me, “Look, this is why it was there”, I’m perfectly happy to listen, but no one wanted to explain it, no one – it’s just there. And if you sit in the vehicle in a certain position, you do find yourself having to look through it and it’s just one of the many obstructions or factors involved.
But it didn’t obstruct vision at all?---Well, I wouldn’t agree with that.
Well, why did you say it in your statement?---Well, I said it doesn’t obstruct the vision of someone of the driver’s height looking forward, and I mean his eye height looking forward - - -
Yes?--- - - - not looking down. That’s a different story.
Even less would it obstruct vision looking to the left. Even less so would it obstruct vision looking to the left?---It would depend on where the vehicle is and where the pedestrian is. They’re the – you know, I’m sure it’ll line up somewhere. I’m just saying it’s one factor.[20]
[20]T6-72, line 46 – T6-73, line 27. Photographs of the green foliage was marked Exhibits 3 and 4.
Mr Timothy Woodcock is a QPS Senior Forensic Recording Analyst. Upon examining the CCTV images and applying a nine step methodology, Mr Woodcock ultimately concluded that the speed of Mr Bryant’s utility at around the time of the accident was about 12.4km/hr. Allowing for margins of error, Mr Woodcock assessed that Mr Bryant’s utility was travelling somewhere between 11 – 14 km/hr.[21] Mr Woodcock did not conduct an analysis into the deceased child’s movements; rather his focus related to the travelling speed of the utility at around the time of impact.[22]
[21]Exhibit 39, especially pages 14, 16 and 34.
[22]T6-100, line 10 and T6-101, lines 7 – 14.
On multiple occasions throughout the course of the trial, the CCTV footage of the accident was played. The quality of the CCTV was not ideal but it assisted with the narrative of the tragic circumstances of the accident.[23] The CCTV assisted in identifying the path of travel of Mr Bryant’s utility as well as the child. It showed the utility not swerving or changing its position of travel. It also showed the utility some distance from the bollards and the child progress out onto the pedestrian crossing before impact.
[23]Exhibit 2, Tab 1.
At this juncture, in addition to the agreed facts,[24] I make the following factual findings:
[24]Exhibit 1.
(a) Hungry Jack’s had car parking facilities which were located throughout the Hungry Jack’s complex.[25]
[25]Exhibit 2 (Agreed Bundle) Photograph pages 19, 20, 21; Exhibit 17; There were car parking bays immediately on the left both before and after the pedestrian crossing. The carpark contained numerous other parking bays in various positions as a driver heads east into the carpark.
(b) There was, among other things, a ‘drive through’ facility whereby vehicles could enter the premises and proceed on a designated path so as to order and receive food from the restaurant without leaving their vehicle (“the drive through facility”).[26]
[26]Agreed Fact 7; Exhibit 2 (Agreed Bundle) page 19.
(c) The design of the entry to Hungry Jack’s from Ipswich Road was such that:
(i) Motor vehicles could enter the premises from Ipswich Road via a 4.5 metre wide one-way entry driveway which was angled at approximately 60 degrees and described as a half C1 type driveway (“the driveway”).[27]
[27]See Agreed Fact 26 and later in these reasons - description of driveway as contained in report of Mr Pekol dated 12 June 2017 Exhibit 31 at page 16.
(ii) In the direction of travel from the entrance of the driveway towards the eastern side of the carpark, there was situated a pedestrian crossing (“the pedestrian crossing”).
(iii) The pedestrian crossing led from the northern side of the carpark to the restaurant.
(iv) Drivers entering the carpark from Ipswich Road intending to enter the ‘drive through’ facility needed to travel over the pedestrian crossing and then turn right into the drive though facility.[28]
[28]Agreed Fact 15
(d) Depending on the precise position at which the measurement is taken, the distance from which a driver upon entry to the driveway could view the pedestrian crossing was approximately 15 metres.[29]
[29]Exhibit 2, Agreed Bundle, page 23.
(e) On the day of the accident, the weather was relatively fine and the visibility was clear.[30]
[30]The photographs all suggest the weather was clear and no witness indicated there were any weather related difficulties.
(f) Mr Bryant intended to go through the drive through to purchase food.
(g) Mr Bryant had attended at the premises approximately five times prior to the accident.
(h) Mr Bryant was well aware of the existence of a children’s play area immediately adjacent to the restaurant.
(i) Mr Bryant was well aware of the existence and location of the pedestrian crossing.
(j) Mr Bryant was aware children and adults may be in the vicinity of the pedestrian crossing and carpark.
(k) The pedestrian crossing was clearly marked with painted yellow stripes.[31]
[31]Exhibit 2, Agreed Bundle, page 8 and exhibits 19 and 21.
(l) There were two bollards, also painted yellow, on the northern side of the pedestrian crossing through which pedestrians must pass in order to enter onto that part of the pedestrian crossing which traversed the driveway.[32]
[32]Exhibit 2, Agreed Bundle, pages 8 – 11 and exhibits 19 and 21.
(m) The stripes on the pedestrian crossing prior to the bollards are wider (1.94 metres) than that part which traversed the pedestrian crossing (1.70 metres).[33]
[33]Ibid.
(n) That part on the pedestrian crossing in which the stripes are wider is positioned adjacent to a parking bay on the approach side from Ipswich Road.[34]
[34]Exhibit 2, Agreed Bundle, pages 10, 11 and 19 and exhibits 19 and 21.
(o) There was a person in a vehicle in the drive through upon Mr Bryant’s utility entering the premises.[35]
[35]Exhibit 2, Agreed Bundle, CCTV.
(p) There was a sedan which had been reversed into the parking bay at the time of the accident (“the parked car”).[36]
[36]Exhibit 2, Agreed Bundle, CCTV.
(q) The parked car was parked such that the front of the parked car did not extend as far as the line of the bollards. Consequently there was a gap between the bollard closest to the carpark and the front of the parked car.[37]
[37]Ibid.
(r) Mr Bryant’s utility was of a higher driving height than the front of the parked car because it was a 4WD and the parked car was a sedan.
(s) The deceased child and his mother were approaching the restaurant on the pathway from the Ipswich Road end of the premises. The pathway proceeded in an easterly direction and was parallel to, but entirely separate from, the driveway.[38]
[38]Exhibit 2, Agreed Bundle, pages 6 and 7 and CCTV.
(t) At a point consistent with the pedestrian crossing, the pathway turned right at 90 degrees and proceeded in a southerly direction for about 2-3 metres before meeting the first part of the pedestrian crossing (in advance of the two bollards).[39]
[39]Exhibit 2, Agreed Bundle, page 7.
(u) That part of the pedestrian crossing which traversed the driveway after the yellow bollards was 1.7 metres wide and consisted of six yellow stripes.[40]
[40]Exhibit 2, Agreed Bundle, pages 8 and 10.
(v) The distance from the bollards to the playground area across the pedestrian crossing was 6.74 metres.[41]
[41]Exhibit 2, Agreed Bundle, page 23.
(w) The child had moved ahead of his mother along the pathway as they approached that area in advance of the commencement of the pedestrian crossing.[42]
[42]T7-39, lines 44 – 45.
(x) The child proceeded out between the two bollards on to the exposed part of the pedestrian crossing heading in the direction of the restaurant.[43]
[43]T7-40, lines 39 – 40; T7-52, lines 33 – 40.
(y) The child did so without stopping or checking for any vehicles.[44]
[44]Exhibit 2, Agreed Bundle, CCTV; T7-40, lines 5 – 7, 39 – 40 and T7-52, lines 33-40.
(z) The position of the parked car permitted Mr Bryant, if paying attention to the pedestrian crossing, to have a view of the deceased child as he approached the bollards and before entering that part of the pedestrian crossing which traversed the driveway.[45]
[45]Exhibit 2, Agreed Bundle, CCTV.
(aa) The speed of Mr Bryant’s utility upon the entry to the premises was within the range of 10 km/hr (2.777m/s) to 14 km/hr (3.888 m/s).[46]
[46]Exhibit 39.
(bb) Mr Bryant’s utility had braked and slowed down upon entry from Ipswich Road to the driveway.[47]
[47]Exhibit 2, Agreed Bundle, CCTV; T1-56, lines 10 – 17 and T1-83, lines 7 – 20.
(cc) There was a slight decline in the driveway towards the pedestrian crossing.[48]
[48]See for example T9-39, lines 15 – 30.
(dd) After entering the premises from the driveway access off Ipswich Road Mr Bryant’s utility proceeded in one motion through the pedestrian crossing without making any attempt to brake.[49]
[49]Exhibit 2, Agreed Bundle, CCTV; T7-40, lines 24 – 27, 41-42, T7-55, lines 1 – 20.
(ee) Mr Bryant’s utility proceeded on a path where it was positioned in approximately the middle of the roadway as it passed through the pedestrian crossing.[50]
[50]Exhibit 2, Agreed Bundle, CCTV and pages 12 and 19; T7-47, lines 37-43.
(ff) The child had proceeded approximately 1.5 to 2 metres out past the bollards onto the pedestrian crossing when he was struck by Mr Bryant’s utility.[51]
[51]Exhibit 2, Agreed Bundle, CCTV and page 12; T7-40 and T7-44.
(gg) The point of impact was approximately between the second and third yellow stripes from the northern side of the pedestrian crossing.[52]
[52]Exhibit 2, Agreed Bundle, page 12.
(hh) The point of impact was on the left-hand front (passenger) side of Mr Bryant’s utility.
(ii) Mr Bryant was distracted by something within his utility which, after entry, caused him to look up and down as he drove the utility towards the pedestrian crossing.[53]
[53]T7-40, lines 24 – 27.
(jj) Mr Bryant maintained a speed of approximately 10 to 12 km/hr as his utility proceeded through the pedestrian crossing.[54]
[54]Exhibit 39.
(kk) Mr Bryant continued to look up and down at something in the utility after proceeding through the pedestrian crossing.[55]
[55]T5-8, lines 23 – 25; T5-35, lines 7-16 and 35-46; T5-38, lines 5 – 20 and 28 – 36.
(ll) There were other customers present in the carpark who stepped in front of the utility to cause it to be brought to a stop.[56]
[56]T5-8, lines 23-25 and T7-41, lines 35-45.
(mm) The front of the utility came to a halt approximately 9 metres past the end of the pedestrian crossing.[57]
[57]Exhibit 2, Agreed Bundle, page 23.
(nn) Mr Bryant did not comprehend why the utility was brought to a halt or what the concerns of the customers were.[58]
[58]T7-41, lines 35-45; T5-9, line 19.
(oo) Mr Bryant then became aware that the concerns from the customers related to a child being located under his utility.[59]
[59]T5-9, lines 19-20; T7-41, lines 22-45.
(pp) Mr Bryant at the time of entry to the carpark had earphones in each ear which were connected to a mobile telephone.[60]
[60]T1-86, lines 7-15.
(qq) The earphones remained in Mr Bryant’s ear and connected to his mobile telephone the entirety of the period he was driving the utility within the complex.[61]
[61]Evidence of Mr Bryant and witnesses Mr Skennar and Ms Yu.
(rr) Mr Bryant was told by persons in the carpark that he must reverse the utility.[62]
[62]T5-9, line 24 and T7-41, lines 35-45.
(ss) The persons were telling Mr Bryant to reverse prior to him alighting but he did not comprehend what was being said to him.[63]
[63]Evidence of Mr Bryant with T5-9, lines 4-24; T7-41, lines 35-45
(tt) Mr Bryant then caused his utility to reverse slightly.[64]
[64]T5-9, line 24 and T7-41, lines 35-45.
(uu) The child was then revealed, and was still alive, but eventually passed away at the scene.[65]
[65]T8-7, lines 5 – 10.
(vv) Mr Bryant did not hear any sound upon impacting the child.[66]
[66]T1-105, lines 12 and 22-29.
(ww) Other persons external to the utility, like Ms Yu, heard a loud noise on impact.[67]
[67]T5-77, lines 26-44.
(xx) Mr Bryant perceived there was some difficulty with his front left-hand tyre and that his gearbox may have failed.[68]
[68]T1-58,lines 17-28 and Exhibit 2, Document 4.
(yy) There was a skid mark, which was caused by the utility’s front left wheel, consequent upon the utility’s impact with the child.[69]
[69]Exhibit 2, Agreed Bundle, pages 13, 14, 15 and 18 and given this was where the child was impacted and located.
(zz) Mr Bryant still had the earphones in his ears when he alighted from his utility.[70]
(aaa) For the duration of Mr Bryant’s time in the Hungry Jack’s carpark, there was green plastic foliage on his utility’s hood/windscreen, towards its left centre.[71]
[70]T5-36, lines 1-7, T5-11, line 38 – T5-12, line 12 and T7-41, lines 22-25.
[71]Exhibits 3 and 4.
Planning Approval of the Driveway and Carpark
Mr Jack Van De Ven is one of the Architects’ current principals. He is a registered architect of some 30 years standing and commenced with the Architects in 1988. More relevantly in 1999, the Architects, under his direction and supervision, were retained by Hungry Jack’s to provide architectural services for extensions and modifications to the existing Annerley store (“the 1999 retainer”).[72] He personally carried out all of the relevant work or, at the very least, the work was done under his direction and supervision.[73]
[72]See generally T9-27 – T9-28. See also T9-31, line 5.
[73]See T9-31, line 5 and 9-36, lines 10-15.
Prior to the 1999 retainer, Mr Van De Ven provided architectural services to other Hungry Jack’s stores given his firm held a retainer since the mid-1980s.[74] He said:
In that time, we’d been doing all of their Queensland stores in that period, probably in excess of 50 carparks for fast food stores and a variety of carparks for retail and industrial developments.[75]
[74]T9-28, line 5.
[75]T9-28, lines 5 - 8.
By 1999 he had designed “well in excess of 100” carparks. About half did not proceed beyond “sketched plans”. To his knowledge, the carparks that he designed (either as at 1999 or thereafter) had not had any workplace health and safety incidents.[76]
[76]T9-28, lines 18 - 20.
Mr Van De Ven said that he received oral instructions with respect to the 1999 retainer requiring the following works to Hungry Jack’s:
(a) a covered outdoor play area;
(b) an additional outdoor dining area adjacent to the new outdoor play area;
(c) a second drive though service window, including a redesign of the associated window modules; and,
(d) an internal dedicated party room.[77]
[77]See for instance T9-28, lines 40 to 47.
An application for development approval was required given the works involved an extension to the existing building.[78] Mr Van De Ven was instructed to pursue the application to the BCC.[79]
[78]T9-30, lines 16 – 19.
[79]T9-30, line 21. The BCC was the “assessment manager: for the application pursuant to section 3.1.7 of IPA: Exhibit 1, Agreed Fact 19.
Consequently on or about 20 September 1999, the Architects submitted a development application to the BCC for “extensions and alterations to existing fast food store” at 574 Ipswich Road Annerley (“the application”).[80] The application attached the Architects’ architectural plans 2020-50A-TPl and TP2 dated 31 August 1999 (“the Architectural Plans”) that showed the retrofitting to the restaurant of:
[80]Exhibit 1, Agreed Fact 18. See also Exhibit 61. See also T9-6, lines 5 – 18.
(a) a covered outdoor play area;
(b) an additional outdoor dining area adjacent to the new outdoor play area and to the area recovered from the existing outdoor play area;
(c) a second drive through service window including a redesign of the associated service window modules; and
(d) an internal dedicated party room.[81]
[81]Exhibit 1, Agreed Fact 20. See also Exhibit 68 and T9-31, line 13. See further Exhibit 62 and T9-7, lines 3 – 29.
In response to the application, on 18 October 1999, the BCC provided an information request (“the Information Request”).[82] The Information Request stated inter alia:
[82]Exhibit 1, Agreed Fact 21(a) and (b). See also Exhibit 59.
(a) “the applicant is requested to submit amended drawings which provide for safe and convenient movement of pedestrians from the existing car parking area along the eastern boundary of the site into the restaurant; and
(b) the applicant is requested to demonstrate compliance with section 19.10 of the Transitional Planning Scheme in respect of non-discriminatory access”.
The Architects responded to the Information Request by way of letter dated 26 October 1999 (“the Response”).[83] Notably the response attached eight copies of the amended architectural plans 2020-50A-TP1A and 2020-50A-TP2A (“the Amended Architectural Plans”). Mr Van De Ven said that he amended the original drawings to embody the responses to the Information Request. He said the design principles which he applied in deciding upon the location of the pedestrian crossing complied with the non-discriminatory access in accordance with section 19.10 of the Transitional Planning Scheme and the relevant standards, namely AS2890.1 and Council Planning Policy 18.06.[84] The following exchange occurred between Mr Van De Ven and Mr Baartz of counsel who appeared for the Architects:
In terms of the pedestrian crossing, Mr Van De Ven, which comes off the pathway from Ipswich Road, can you please identify, from a design perspective, the principles you took into account in placing the driveway in that location?---So we had to comply – we had to comply with disabled access, so that is both ambulance - - -
[83]Exhibit 1, Agreed Fact 22(b). See also Exhibit 53. See also generally at T9-36 – T9-39.
[84]See T9-38 - T9-39. See also Exhibit 69 for the wording of 19.10.
Sorry. Could you say that again?---We had to comply with disabled access - - -
Yes?--- - - - non-discriminatory access, so ambulance and wheelchair bound people, so we must comply with certain Australian standards for gradients, crossfalls, direction. And then we also had to address the design of a carpark in compliance with the council planning policy 18.06 and Australian standard for the design of carparks, take into consideration sight lines, pedestrian and vehicle movements, and work out – work through that design process.
And applying those principles, did that indicate to you that this was the appropriate placement for the pedestrian crossing?---Working through the policy and the Australian standard, addressing sight lines, addressing vehicle movements, we thought that was the most appropriate location, yes.
And as to the discriminatory access side of it, why – did you form the view that this also complied with the requirements under section 19.10?---We did.[85]
[85]T9-38, line 40 – T9-39, line 14.
I formed the impression that Mr Van De Ven was a credible and reliable witness who was well versed in the processes which were undertaken in respect of the driveway, carpark and placement of the pedestrian crossing.
Mr Rory Kelly, who was the BCC’s senior town planner at the time of the application of the redesign of the carpark in September 1999, gave evidence.[86] He was ultimately the most senior person in charge of the approval process for the BCC, although he did not have the daily carriage of this redevelopment proposal as such.
[86]T8-18, line 18.
Mr Kelly reviewed the documents on the BCC’s file pertaining to this development. A series of documents were tendered through him.[87]
[87]Exhibits 46 – 57 and 58 – 59.
Mr Kelly detailed the process of applications of a similar nature (as at 1999 and 2000). He said once an application was received, it was usually dealt with by a multidisciplinary team consisting, if necessary, of a town planner, administration officer, engineer, architect, an ecologist, a landscape architect and an environmental pollution officer. Collectively members of the multidisciplinary team would assess the application.[88] Where specific engineering input was required, such input would be sought by the town planning approval team from relevant council engineering sections (including traffic engineers).
[88]T8-20, lines 27 – 31.
Mr Kelly said that this redevelopment proposal involved an assessment manager, an architect, a landscape architect and a traffic engineer.[89] Mr Kelly said that initially BCC traffic engineer Mr Gordon Tong looked at the redevelopment proposal and did not consider any conditions were required from a traffic engineering perspective.[90] The assessment manager at the time, Mr Richard Hurl, sought an opinion from Mr Stephen Anderson, who was a general engineer.[91] Conditions were recommended by him in December 1999. Those conditions were then part of Mr Hurl’s submission that went to Mr Shane Howard (who was Mr Kelly’s delegate as Mr Kelly was on leave).
[89]T8-20, lines 35 – 39 and T8-23, line 15.
[90]Exhibit 63.
[91]T8-23, line 23. See also Exhibit 63.
On 11 January 2000, the BCC approved the Application in accordance with section 3.5.15 of the Integrated Planning Act 1997 subject to conditions and in accordance with the Amended Architectural Plans.[92] BCC’s Mr Howard (who was acting as Mr Kelly’s delegate) approved the Application with conditions in January 2000.[93] Mr Howard signed the decision and issued the approval conditions on 12 January 2000.[94] Not unsurprisingly, some 12 – 18 years after the approval process, Mr Howard had no independent recollection of his role in this approval process.[95] Nonetheless he gave the following evidence about the process of approvals at the relevant time:
[92]Exhibit 1, Agreed Fact 23. See also Exhibit 70.
[93]T9-4, lines 17 - 29.
[94]Exhibit 64.
[95]T9-4, line 35.
….The process would be looking at the file, looking at the – the plans that were submitted originally, looking at the plans that are being proposed to be approved, looking at the proposed conditions and the recommendation from the assessment manager to – to the delegate, which was me at that particular time. So just comparing different plans, perhaps looking at the information request that was sent out to the applicant, and the response, and just making an assessment of if that approval was an appropriate thing to do and the conditions are appropriate, checking conditions, that kind of thing.
I see. And the documents you just referred to there they would have been on some kind of file, would they, the - - -?---On the council file. Yes.
And you – it would be that file that you would have regard to to check compliance for the purpose of making your decision?---Yes.
I see. And that process, it may be similar to asking you how long a piece of string is, but was there a general timeframe engaged in that sort of process as a delegate?---Not a set timeframe, because it takes however long it takes. I mean, complex applications would take longer. This one might have taken, you know, half an hour tops. You know, it wouldn’t have taken very long.
And as the delegate did you have the carriage of any of the matters relating to the application before it arrived on your desk?---No. I wouldn’t have seen it before it got to my desk, it’s – especially as I was only acting.
And you mentioned someone called an assessment manager. What role did they have in the carriage of the application before it arrived to you?---Yeah. Well, they would have been allocated the application to manage all the way through. So coordinating the different professionals on the team. They would have coordinated the engineer, the architect, landscape architect, etcetera, and assess the application in terms of the planning scheme all the way through. Dealt with the applicant, sent an affirmation request, got responses, drafted up conditions – all those things to prepare a submission to the delegate - - -[96]
[96]T9-4, line 46 to T9-5, line 31.
Mr Van De Ven indicated that the approval was subject to certain conditions, including that further landscaping work be carried out.[97] He gave evidence that after having received BCC’s decision, he then met with representatives of Hungry Jack’s where the BCC approval was discussed. The representatives of Hungry Jack’s who were present at that meeting raised their desire to revise vehicular access alignment from Ipswich Road (in other words, the crossover).[98] Consequently the Architects prepared a drawing depicting a new crossover into the Hungry Jack’s carpark from Ipswich Road.[99]
[97]T9-40.
[98]See for example Exhibit 71 and T9-41.
[99]T9-43, line 10 and exhibits 50 and 50.1.
On 21 March 2000, the BCC sent a facsimile communication to the Architects enclosing a document entitled "Section B Design Requirements (“the Design Requirements”).[100]
[100]Exhibit 1, Agreed Fact 24. See also Exhibit 49.
By the Design Requirements, the BCC instructed the Architects to document the design on the vehicle access to the property from Ipswich Road in accordance with C1 driveway dimensions and the sketch documented in the Design Requirements.[101]
[101]Exhibit 1, Agreed Fact 25.
The sketch documenting the Design Requirements referred to above was consistent with C1 driveway dimensions and depicted the driveway as:
(a) one way entry only from Ipswich Road;
(b) a sixty degree angle; and
(c) 4.5 metres wide.[102]
[102]Exhibit 1, Agreed Fact 26 See also Exhibit 74.
On 27 March 2000, the Architects provided the BCC with a sketch of the driveway in accordance with the Design Requirements.[103]
[103]Exhibit 1, Agreed Fact 27. See also Exhibit 75.
On 28 March 2000, the Architects spoke to Mr Kelly, BCC’s Senior Town Planner (“the Conversation”) wherein:
(a) Mr Kelly advised the Architects that he wanted to retain the alignment of the driveway and reduce the width of the driveway;
(b) The Architects suggested that a traffic engineer be engaged to visit the site and make recommendations for submission to the BCC; and
(c) Mr Kelly advised the Architects that he was prepared to review an engineered solution.[104]
[104]Exhibit 1, Agreed Fact 28. See also Exhibit 76.
After the Conversation, on or around 28 March 2000, the Architects, on behalf of Selden Pty Ltd, engaged Beard Traffic Engineering Pty Ltd, a traffic engineering company, to provide advice on the desirability, in traffic planning terms, of the driveway.[105]
[105]Exhibit 1, Agreed Fact 29. See also Exhibits 76 and 77.
On 5 April 2000, Beard Traffic Engineering Pty Ltd provided advice (“the Traffic Engineer's Advice”).[106]
[106]Exhibit 1, Agreed Fact 30. See also Exhibit 81. See further for example Exhibits 78, 79 and 80
On 5 April 2000, the Architects forwarded the Traffic Engineer's Advice to the BCC.[107]
[107]Exhibit 1, Agreed Fact 31. See also Exhibit 82.
On 8 May 2000, the BCC sent a facsimile to the Architects advising that the BCC approved the driveway as depicted on sketch 1 attached to that facsimile.[108]
[108]Exhibit 1, Agreed Fact 32. See also Exhibit 47.
In accordance with the approval from the BCC on 11 January 2000, as refined by the subsequent approval of the final plans on 8 May 2000, the development works were conducted in or about 2000.[109]
[109]Exhibit 1, Agreed Fact 33.
Mr John Jukes was intended to be called by the BCC; but illness prevented him from giving evidence. Instead in an affidavit tendered before the Court, Mr Jukes stated that he had no independent recollection of the particular application. The affidavit addressed Mr Jukes’ limited role in the process including the fact that he sought advice from traffic engineers, namely Mr Rod Mogg, in the course of his conduct of the approval file.[110]
[110]Exhibit 44, affidavit of Mr John William Jukes, sworn 28 August 2018. I note the BCC also took sufficient steps to attempt to contact other relevant witnesses: see Exhibit 45, affidavit of instructing solicitor Ngaire Elizabeth Wegner, sworn 29 August 2018.
Expert evidence regarding liability was led from engineers Mr John Jamieson and Mr Adam Pekol and architect Mr Ross Carseldine. Such evidence will be referred to later in these reasons.
Duty of Care
Whilst Hungry Jack’s conceded that it owed Mr Bryant a duty of care, BCC and the Architects contend that neither of them owed Mr Bryant a duty of care.
Duty of Care – Hungry Jack’s
Hungry Jack’s admit that it owed a duty to take reasonable care for the safety of entrants upon its premises because it occupied and controlled the site where the accident occurred and was responsible for the day-to-day operations – not only regarding the restaurant, but of the carpark and pedestrian access within the property. It properly conceded that it had a duty to take care to minimise the risk of a foreseeable injury to persons who entered upon the property.[111] The issue though becomes whether the duty extends to cases of pure psychiatric injury in circumstances where the plaintiff himself is the driver of the motor vehicle which causes death or injury to another person and subsequently suffers psychiatric injury as a consequence of that accident. Hungry Jack’s accepted that it was open to the court to find the duty of care extended to taking reasonable care to avoid the possibility of a patron on the premises suffering psychiatric injury from being involved in, or observing, a serious accident.[112] I shall proceed on that basis.
[111]See for example Brisbane Youth Centre Inc. v Bevan [2017] QCA 211 at [186]. See also the Further Amended Defence of the First Defendant at [6], namely that Hungry Jack’s pleaded that it owed a duty to entrants to take reasonable care for the safety of entrants upon its premises.
[112]I was referred to Tame v State of New South Wales (2002) 211 CLR 317 at [49]-[52], [66]; Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60 at [25]-[26] and s 9(1) of the Civil Liability Act 2003.
Duty of Care – BCC
It was pleaded on Mr Bryant’s behalf that the BCC, as the assessment manager for the development application at the time that the development was being planned and undertaken, owed a duty to the public, including Mr Bryant, to:
(a) exercise its statutory powers conferred by the Integrated Planning Act 1997 in respect to the application with reasonable care;
Mr Bryant relied on Habib v Nominal Defendant (NSW) (1995) 22 MVR 454 in support of an entitlement to recover his legal costs in defending criminal proceedings. In that decision, the plaintiff was charged with fraud in respect of the prosecution of his claim for damages for personal injuries arising from the alleged negligence of the driver of an unidentified vehicle. At 463, Kirby P stated:
It is well settled that damages suffered as a result of proceedings between the plaintiff and third parties may be recovered from the defendant. McGregor on Damages, 14 ed at 439 notes:
“Where the costs that the plaintiff now claims as damages from the defendant have been incurred in previous proceedings between the now plaintiff and some third party, whether the third party be a civil litigant or the crown as prosecutor…since the leading case of Hammond & Co v Bussey costs in such actions have been held recoverable as damages subject to the rules of remoteness of damage.” [Emphasis added].
…Instead, it was to be decided by reference to the possibility that criminal proceedings might be launched in respect of a claim made by a plaintiff for damages arising out of the activity of the driver of the unidentified motor vehicle.
The test to be applied to resolve such cases has been set out in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 where Mason J said:
“A risk of injury which is quite unlikely to occur…may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.”
As such the test is generally referred to as an “undemanding” one, in the sense that it is enough to affix liability to a defendant even when the damage is judged to have been a remote possibility. An illustration of this situation was the unlikely chain of events involved in Chapman v Hearse…
It was also identified on behalf of Mr Bryant the comments made by Powell JA in Habib at 471 (who was dissenting) namely:
I accept that the test of foreseeability to be derived from such cases as Chapman v Hearse (1961) 106 CLR 112 and Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 is not a particularly demanding one, and does not require that a tortfeasor needs to foresee the precise and particular nature of the damage which is said to have been sustained, but requires only that he foresee injury of a class into which the damage which has been sustained falls. It was on this basis that, during the course of the argument on the appeal, I indicated that if, as seen at one stage, was likely to occur, the appellant had been charged with negligent driving, the cost of his defending himself in respect of that charge might well be regarded as reasonably foreseeable.
It was submitted on behalf of Mr Bryant that all three defendants well knew of the dangers and risks associated with the use of the premises and in light of the authorities and foreseeability being the relevant criterion, the risk was not far-fetched or fanciful. For that reason, it was submitted the claim for legal defence costs was properly justiciable.
Mr Bryant’s claim is for a psychiatric injury described as “post-traumatic stress disorder.” The claim is solely for a psychiatric injury. Special damages in a personal injuries claim are monetary relief awarded for the out of pocket expenses incurred due to the negligent actions of a defendant.
It was submitted by the defendants that the case of Habib can be distinguished from the facts of Mr Bryant’s case and the legislation under consideration should be carefully considered in contrast to the circumstances of Mr Bryant’s claim. In Habib, the plaintiff’s claim related to a claim under the Motor Vehicles (Third Party Insurance) Act 1942 (NSW) for “damages…in respect of…death or bodily injury”. Kirby P considered the words “a claim for damages…in respect of …death or bodily injury” of a person were extremely wide in their connotation. His Honour did not consider the claim for legal costs fell outside the statute. Powell JA noted the artificiality of the charge (it not being one related to the plaintiff’s driving but rather faking a motor vehicle accident and attempting to obtain statutory damages by fraud). Priestly JA was prepared to agree with Kirby P and considered that the authorities on foreseeability require only that the general kind of consequence should be foreseeable, not its particular manifestation. His Honour considered those damages came within the Motor Vehicles (Third Party Insurance) Act 1942 (NSW).
The defendants submitted the High Court authorities emphasised the need for the particular expense to be causally connected to the defendant’s negligence. If so the defendants ought to have reasonably foreseen that an expense of that kind might be incurred.[240] In this regard, McHugh J stated in Gardikiotis at 55 that:
Under the common law theory of common sense causation, a free, informed and voluntary act of the plaintiff or a third party, which builds on a situation resulting from the defendant's tort and causes loss or damage to the plaintiff, negatives any causal connection between that tort and the loss or damage. That is so even though the act of the plaintiff or third party would not have occurred but for the defendant's tort. Consequently, unless a defendant's wrong has caused a disability that requires the plaintiff to obtain assistance in managing his or her verdict moneys, the cost of such assistance is not caused by the defendant's negligence and is not recoverable as damages from the defendant.
[240]See Nominal Defendant v Gardikiotis (1996) 186 CLR 49.
Earlier in Gardikiotis, the joint judgment of the majority made the following observations at [2]:
…True it is that, but for the accident, the respondent would not have a verdict to invest and, thus, would not need assistance in its management. But it is contrary to common sense to speak of the accident causing a need for assistance in managing the fund constituted by her verdict moneys in circumstances where her intellectual abilities are not in any way impaired.
Regarding causation, in Mahony v Kruschich (Demolitions) Pty Ltd [1985] HCA 37, the High Court stated:
…In negligence, "damage" is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, "damage" includes both the injury itself and other foreseeable consequences suffered by the plaintiff. The distinction between "damage" and "damages" is significant. Damages are awarded as compensation for each item or aspect of the damage suffered by a plaintiff, so that a single sum is awarded in respect of all the foreseeable consequences of the defendant's tortious act or omission…
The Court went onto state:
…A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone. Whether such a line can and should be drawn is very much a matter of fact and degree…
In light of the foregoing and my views regarding liability, I am not persuaded there is a sufficient causal link between the alleged negligent actions of the defendants and the need for Mr Bryant to, on his own volition, engage legal representation in order to defend a criminal trial which was ultimately pursued by the Director of Public Prosecutions (on his own assessment of the evidence after an earlier assessment made by the investigating police, on behalf of the Commissioner of Police, to initiate a notice to appear in the Magistrates Court, and following a Magistrate’s committal). Further I accept the submission made by the defendants that the causal connection is negatived if the factors required for the production of the harm include, in addition to the wrongful act:
(a) The free deliberate and informed act or omission of a human being, intended to exploit the situation created by the defendant (voluntary human action); and,
(b) An abnormal conjunction of events.
It follows that that the kind of damage cannot be recovered in the present instance.
Therefore special damages are assessed at $5,368.00.
Future Expenses
Both psychiatric experts consider Mr Bryant suitable for future psychiatric treatment. Professor Whiteford is of the view that another 15 sessions of cognitive therapy from a clinical psychologist over the next 12 months is appropriate. Professor Whiteford is also of the view that Mr Bryant would benefit from pharmacotherapy, such as a serotonin reuptake inhibitor, which would cost about $35 per month and would need to be taken for at least 12 months.
Dr Dwyer’s view is Mr Bryant will require at least 20 sessions on a weekly or fortnightly basis. In his view, if Mr Bryant does not progress with cognitive behaviour therapy, then a referral to a psychiatrist would be warranted with a view to commencing anti-depressant medication despite Mr Bryant’s continued reluctance to do so.
Based on the figures provided by Professor Whiteford[241], and, allowing say 15 treatments with a psychologist, Mr Bryant’s expenses for all the costs of such consultations to be $1,644.00. In addition I will allow $3,000.00 for future out of pockets which includes medication, any necessary GP attendances and travel. Total future expenses is therefore $4,644.00.
[241]See p 11 of his report.
Absent a finding of contributory negligence, I otherwise assess Mr Bryant’s damages against Hungry Jack’s at $219,368.00 or $264,593.00 against the BCC and the Architects.
Orders
There will be judgment for the defendants.
I will hear the parties as to costs.