This case was heard in the NSW Court of Appeal on 22 June 2023( before Ward P, Mitchelmore JA, and Bastan AJA).
The Facts
The case related to an incident in 2016 where the plaintiff, Ms Diane Moore, was riding an electric bicycle along a path in Ballina. The pathway was shared by pedestrians and cyclists, alike.
Ms Moore overtook two pedestrians on the path by cycling on the right-hand side of the path; however, she then observed a metal bollard about 20cm from the right-hand edge of the path. To avoid colliding with the bollard, she steered further to the right but then veered off the path. As she tried to steer left back onto the path, she lost control of her bicycle and fell, injuring her hip.
Decision
Ms Moore commenced proceedings against Ballina Shire Council in the Lismore District Court, on 17 May 2022, alleging that the council had breached its duty of care to her by failing to remove the above-mentioned bollard from the side of the pathway. The Council were responsible for the management and control of this pathway and removed the bollard from the opposite side in 2016.
The Council denied that they had acted negligently and pleaded that the bollard was an “obvious risk”.
Obvious risks are, by their very name, deemed to be so obvious to the onlooker that they are considered to have been aware of it. Another example of an obvious risk might be a giant hole in a walking path – you would expect that any pedestrian would see such a hole and consider the risk of harm it could pose to them if they were to step into it. Due to this obvious risk, the Council wouldn’t be held liable as there is a responsibility on each of us to keep a proper lookout for hazards to our own safety.
The Council also pleaded that if they were considered liable, a deduction should be made for the plaintiff’s contributory negligence (i.e. while not wholly and/or mostly at fault, it was reasonable to expect that the plaintiff could have done more to avoid injury – such as slow down when observing multiple hazards like the pedestrians and the bollard).
The trial judge, Priestley SC DCJ, found in the plaintiff’s favour and awarded damages of $193,531.39.
He considered that the Council had breached its duty of care by not removing this bollard following the removal of “its pair” on the other side of the pathway in 2016, noting that, since one bollard had been removed, there was no justification for retaining the second.
Appeal
The Council appealed this decision, disputing that:
- it had breached its duty of care to the plaintiff,
- that any such breach of duty caused her accident, and
- that it was an error not to find some degree of contributory negligence by the plaintiff’s.
Ultimately, Bastan AJA, Ward P and Mitchelmore JA all agreed to allow the appeal. Bastan AJA delivered the judgment, with the other two judges in agreeance noting, as follows:
Bastan AJA considered that it was clearly foreseeable that what had occurred to Ms Moore could occur – namely, that a cyclist might leave the pathway to avoid pedestrians/other cyclists/or for another reason and that they might lose control of their bicycle and suffer injury (either by colliding with the bollard or attempting to avoid the bollard). Therefore, the issue for consideration was not whether the risk of harm was foreseeable – but whether the Council should have been required to remove the bollard to mitigate this risk of harm.
To evaluate this, the Court needed to consider the burden of taking this precaution (removing the bollard) and whether the bollard had social utility in remaining exactly where it was. The burden was considered to be “not insignificant” to remove it. As to the social utility, it was considered that while initially the two bollards had been instituted to prevent vehicular access and to slow cyclists, one bollard could still have utility in preventing cyclists from going too fast.
Therefore, the question for the Court was: did the Council act reasonably in not removing the bollard? The trial judge did not think so and relied upon a safety audit report served by Ms Moore which stated that one bollard would be ‘unlikely to slow cyclists’ – despite the fact that the Council’s engineer had provided evidence to the contrary.
In considering this further, Bastan AJA disagreed with the trial judge’s findings. While they accepted that two bollards may hold a “greater deterrent effect”, this did not mean that one bollard would not have a substantial impact on cyclists. The Council could not be considered to be acting unreasonably as, even if there was no social utility of the bollard (which Bastan AJA considered there was), there was no evidence presented that any cyclist had injured themselves by colliding with this bollard from its placement in 1999 and the trial in 2022.
Basta AJA held that the bollard was not an unreasonable hazard and did not require removal. In deciding this, it was determined that Ms Moore had not established that the Council had breached its duty of care to her. This meant that Ms Moore was ultimately unsuccessful in her claim.
It was decided on 6 July 2023 that:
- The appeal should be allowed and the orders of the District Court set aside;
- The plaintiff’s statement of claim filed on 10 November 2022 should be dismissed;
- The plaintiff should pay the defendant’s trial costs;
- The respondent (plaintiff) should pay the appellant’s (defendant) costs of appeal; and
- Issue a certificate to the respondent under the Suitors’ Fund Act 1951 (NSW).
This was a tragic end to the plaintiff’s protracted proceedings. One might question whether the case should have been brought at all.
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