Collins v Clarence Valley Council

1. [1]

   McCOLL JA: The appellant, Dr Ann Collins, was injured at about 3.00pm on Friday, 9 April 2008, when she fell over the railings of the Bluff Bridge (the “bridge”) where it straddles the Orara River at Lanitza in New South Wales, after the front wheel of the bicycle she was riding became stuck in a gap between the wooden planks of the bridge. The respondent, Clarence Valley Council (the “Council”), had care, control and management of the bridge. The appellant appeals against a decision of Beech-Jones J in which his Honour found the Council was not liable for her injuries. [1]

2. [2]

   The appellant knew before she rode onto the bridge that, because of its wooden plank surface, she would have to ride across the planks at an angle to avoid getting her wheels caught or jammed in the gaps between them. As she neared the end of the bridge, when she was looking ahead and not down, her front wheel became caught in a gap between the planks (which the primary judge found was wider than 20mm) formed the surface of the bridge, causing it to stop suddenly, leading to her fall.

3. [3]

   The primary judge found in favour of the Council because he held that the risk of injury to a cyclist if their wheels became stuck in the gaps between the planks (and the holes in degraded planks) on the bridge was an “obvious risk” within the meaning of s 5F of the Civil Liability Act 2002 (NSW) (“CLA”) such that the Council did not owe her a duty of care to warn of that risk by the erection of a warning sign. [2] His Honour also found that remedial work to the bridge the appellant alleged the Council failed to take in breach of its duty of care to her, did not constitute precautions a reasonable person in the Council’s position would have taken. Further, the Council had the protection of CLA, s 45, which shields a roads authority from civil liability for harm arising from a failure to carry out road work unless it had actual knowledge of the particular risk that materialised.

4. [4]

   The appellant’s principal challenge to the judgment is directed to the primary judge’s characterisation of the risk of harm to which she was exposed pursuant to CLA, s 5B, which informed his Honour’s finding that that risk constituted an obvious risk of which according to CLA, s 5H, the Council did not need to warn her. By way of contention, the Council raised issues concerning CLA, s 43A, causation and contributory negligence by way of notice of contention.

5. [5]

   The matter proceeded as a liability trial only, as it was agreed that if the appellant succeeded she would recover damages in the amount of $822,632.00 less any deduction for contributory negligence. [3]

6. [6]

   For the reasons that follow, I would dismiss the appeal with costs.

Factual Background

1. [7]

   At the time of her accident the appellant was participating in the Sydney to Surfers Paradise bicycle ride, an annual charity ride organised by the Engadine Rotary Club to raise money for Father Chris Riley’s “Youth Off the Streets” organisation. It was the tenth consecutive year she had taken part. The appellant had been a regular cyclist for about 15 years, during which time she cycled for about 100 to 120 kilometres on a weekly basis in the Sydney metropolitan area. [4]

2. [8]

   The charity bicycle ride commenced on 5 April 2008. It involved participants cycling in groups of ten to fifteen people with a support vehicle travelling behind the last member of each group. There were fifteen people in the appellant’s group. On 9 April the appellant and the other people in her group began cycling from Coffs Harbour, stopped at Glenreagh for lunch and then proceeded towards Grafton at around 2pm. [5]

3. [9]

   At about 3pm the appellant rode towards the bridge. The primary judge described it as follows:

4. [10]

   As I have said, the front wheel of the appellant’s bicycle became stuck in a gap between planks on the bridge. She fell over the low guardrails on the side of the bridge with the bicycle still attached to her feet, into a rocky ravine and suffered significant injuries. [6]

5. [11]

   The primary judge set out the account of the accident the appellant gave in an affidavit sworn for the trial:

6. [12]

   The appellant gave a further description of the accident in the following terms:

Legislative framework

1. [13]

   The liability case fell to be determined largely by reference to the CLA.

2. [14]

   Section 5B, CLA provides:

3. [15]

   The Council relied on the following provisions of the CLA either as limiting the scope of its duty of care (s 5F – s 5H), denying breach of any duty of care (s 42) or negating civil liability (s 43A, s 45).

4. [16]

   Sections 5F – 5H appear in Part 1A (Negligence), Division 4 (Assumption of risk) of the CLA. They provide:

5. [17]

   Sections 42, 43A and 45 appear in Part 5 of the CLA dealing with the “Liability of Public and Other Authorities”. They provide:

6. [18]

   At the outset of his reasons, the primary judge identified two conundrums.

7. [19]

   The first was that he found the Council did not owe the appellant a duty of care to warn her of the risk of harm posed by the bridge, even though he also concluded that the erection of a sign warning of the condition of the bridge was a reasonable precaution for the Council to undertake, [9] and that in fact it was unreasonable for it not to. [10]

8. [20]

   The second conundrum was that:

9. [21]

   In her statement of claim, the appellant alleged that “her front wheel got caught in a gap in the roadway surface”. She also alleged her accident was caused by the Council’s negligence, contending that the bridge was frequently used by cyclists, was in a poor state of repair, that the Council either knew or ought to have known that it was unsafe for cyclists and that steps were required to eliminate or minimise the risk to cyclists it posed. She submitted that the Council was required to, but did not, take reasonable care to prevent harm to cyclists such as herself who used the bridge either by undertaking various repairs to the bridge or, at least, erecting a warning sign. [11]

10. [22]

    As the primary judge described it:

11. [23]

    The primary judge accepted the appellant’s description of the accident save as to her oral evidence concerning her understanding of the state of the bridge and the risks it posed prior to, and during, her trip over it. In that evidence she said she had not realised before she went onto the bridge that there were “big gaps” in the planks of the bridge as opposed to “fine line cracks”. [13]

12. [24]

    His Honour concluded that:

13. [25]

    The primary judge did accept the appellant’s evidence that:

14. [26]

    There was considerable evidence apart from the appellant’s observations, about the state of the bridge at the time of the accident. However all the evidence appears to have suffered from limitations. Thus the appellant did not give evidence about “the size of the gaps on the bridge, except to say that she did not recall seeing big gaps or holes on the first part of the bridge when she came onto it”, while “other witnesses gave evidence on the state of the bridge in general terms, but did not make any specific observations about the nature of the gaps at the location where the wheel was trapped.” [16]

15. [27]

    Ms Kaadal, who had been riding with the appellant immediately before the accident, “observed that the bridge was in very poor condition, that there were numerous gaps between the planks along the length of the bridge and that these gaps ‘looked like they were wider than the tyres on [the bikes that she and Dr Collins were riding]’.” [17] Senior Constable Sams, the police officer in charge at Coramba for seven years who attended at the scene of the accident, estimated the gaps he saw along the length of the bridge were between 10 and 20 millimetres wide. He also inspected the bridge half way across where Mrs Kaadal indicated the accident happened and gave evidence that in that location “he was able to fit two fingers, which he would estimate to be an inch and a half in diameter, or his first knuckle, which he approximated was 15 millimetres wide, into some gaps in that area.” That evidence suffered not from the difficulty of accurate measurement, but from the fact the primary judge found the accident happened on the northern part of the bridge, not halfway along it, so to that extent that part of Senior Constable Sams’ evidence did not assist. [18]

16. [28]

    The Council’s Bridge Engineer, Mr Jeff Madden, took four photographs on 16 April 2008 of the bridge deck at “Span 1”, “Span 2”, “Span 3” and “Spans 3 & 4”, for the purposes of preparing an accident report. They showed long parallel lines running between the longitudinal planks, an uneven bitumen covering that had completely eroded in some places and bolts sticking up in the middle of some planks. Some cracks and cavities of varying sizes were also apparent in the bridge’s surface, particularly near the bolts which the report stated had been used to screw down ‘boards [that had] deteriorated at the ends’.” [19]

17. [29]

    Four days after the accident, Mr and Mrs Field, two other participants in the charity ride, took photographs of the bridge which Senior Constable Sams agreed were consistent with his own observations of the bridge on the day of the accident. As the primary judge recounted, some of the photographs showed Mr Field placing his hand or arm in various cracks and gaps in that surface. A number of the photographs were described as being of “[the] left hand side, but more on the northern end of the bridge rather than the southern end”. His Honour found that that description was consistent with what was shown in the photograph Mr Madden took of the northern part of the bridge at “Spans 3 & 4”. [20]

18. [30]

    In their joint report, the engineers agreed that the Field photographs showed:

19. [31]

    The experts agreed that the tyres of the appellant’s bike were between 23 and 25mm wide. They also agreed that whether those tyres would fit down a gap between planks slightly less than 23mm, depended on the length and depth of the gap, as well as the speed at which the bike was travelling. [22]

20. [32]

    The primary judge accepted that evidence as consistent with the characteristics of the bridge and the description of the accident. His Honour found that:

21. [33]

    The primary judge also found that prior to March 2008 there was a significant level of recreational use by cyclists of the Orara Way, including across the bridge, at least on weekends. In reaching this conclusion his Honour relied on the observations of Senior Constable Sams and that of Mr Terry Flanagan, who resided on a property adjacent to the bridge and who travelled on it daily to get to work in Grafton. [24] He accepted that the Council was not made aware of the charity bike ride in which the appellant was participating at the time of the accident. [25]

22. [34]

    The bridge had been inspected around 6 December 2006 by Mr Castle, the Council’s then “Acting Field Supervisor – Bridges.” It was reported to be “in good condition with no obvious loose spikes or bolts.” [26] Nevertheless, in documents produced following the accident, the Council stated that repairs were carried out on the bridge on 6 and 7 December 2006, including replacing a running deck plank, tightening others and making minor repairs to the guardrail. [27]

23. [35]

    The next recorded inspection of the bridge was undertaken on 14 February 2008 by Mr Bailey, the Council’s roads inspector responsible for the section of the Orara Way that included the bridge. Mr Bailey stated that he did not detect any safety issues which might pose a risk to vehicles. He also stated that he did not have in mind the safety of cyclists when he inspected the bridge. When shown photographs of the bridge after the appellant’s accident, Mr Bailey said they showed that the condition of the bridge was significantly worse than when he inspected it in February 2008. [28]

24. [36]

    Mr Bailey agreed, however, that during the February 2008 inspection he saw gaps between the planks of the bridge wide enough to “catch or trap [the wheel of] a bike” but said he had not turned his mind to such a possibility at the time. [29]

25. [37]

    Officers of the Council found out about the appellant’s accident by reading about it in the local newspaper. Mr Madden prepared a report about the accident at Mr Jenkins’ request. Mr Jenkins was Mr Madden’s supervisor and the Manager of Operations at the relevant time. The report was clearly written following the inspection of the bridge during which Mr Madden took the photographs referred to above at [28]. It was sent by Mr Madden on 29 April 2008 to Ms Crichton (the Council’s Risk Officer) and Mr Jenkins. It reported that “Gaps of varying sizes exist between the boards … Generally the condition of the bridge is reasonable except for the passage of bicycles. Gaps exist between running planks on all timber bridges”. It identified placing a sign indicating the “hazard for cyclists” as an option, but not “fixing planks and spray [sealing with] bitumen” as that was “only a temporary repair”.

26. [38]

    By the end of April 2008, presumably in response to Mr Madden’s report, a sign (which cost $190.30) which was erected 159 metres from the southern end of the bridge. The sign displayed a picture of a bicycle and underneath stated “Cyclists Dismount, Beware of Gaps in Bridge Deck”. Most likely at the same time a similar sign was placed 271 metres to the north of the bridge. [30] In November or December 2008 the Council commenced further maintenance work on the bridge, consisting of a deck reconstruction by replacing some of the longitudinal planks on the bridge which cost approximately $77,000. [31]

Duty of care

1. [39]

   The Council pleaded that it did not owe the appellant a duty of care, having regard to its financial and other resources, [32] because the risk of harm that materialised was an obvious risk, such that the Council did not have to warn her of it, [33] because it had not unreasonably exercised, or failed to exercise, any special statutory power such as to give rise to civil liability [34] and because, even assuming it had failed to carry out road work, or to consider carrying out road work, at the time of the alleged failure it did not have actual knowledge of the particular risk the materialisation of which resulted in the harm. [35]

2. [40]

   After a discussion of authorities concerning the duty of care of roads authorities and CLA, s 42, the primary judge concluded that Brodie v Singleton Shire Council [36] stood as the authority concerning the existence and scope of the duty owed by a road authority, CLA, s 42 notwithstanding, although his Honour accepted that duty may be qualified by CLA, s 5H. [37]

3. [41]

   Accordingly, the Council was obliged to take reasonable care that its exercise of or failure to exercise its powers did not create a foreseeable risk of harm to a class of persons (road users) which included the appellant. [38] At common law, where the state of a roadway, whether from, inter alia, non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. [39] That common law duty is now circumscribed in some respects, and qualified in other respects, by CLA, Part 5.

4. [42]

   The primary judge then considered authorities as to the point at which CLA, s 42 was considered to apply (that is to say, whether at the duty or breach stage). He concluded that it was relevant at the stage of assessing breach. [40]

5. [43]

   There is no challenge to his Honour’s finding concerning duty of care or the stage at which CLA, s 42 applies.

Section 5H and the relevant “risk of harm”

1. [44]

   The primary judge turned to the question whether, in the present case, the Brodie duty of care was qualified by CLA, s 5H (no proactive duty to warn of obvious risk). The parties accepted that the “risk” referred to in CLA, ss 5F and 5G (also relating to “obvious risk”) was the same as the “risk” referred to in s 5B. Accordingly, his Honour considered what constituted the “risk of harm” for the purposes of that provision. [41]

2. [45]

   The appellant contended that the relevant risk was that of a cyclist falling off the bridge because of the condition of the bridge surface. The Council submitted it was the risk of a cyclist having the wheels of his or her bike stuck in a gap on the bridge and falling over. His Honour re-formulated the risk as it was defined by the Council to include “the risk of the cyclist falling over ‘and thereby suffering injury’” to accommodate the fact that “the proper identification of risk involved ‘accurately identify[ing] the actual risk of injury faced by [the plaintiff]’.” [42]

3. [46]

   His Honour held that the relevant “risk of harm” referred to in CLA, s 5B had to be determined without the use of hindsight reasoning, and prospectively from the position of the Council prior to the accident occurring. [43]

4. [47]

   Accordingly, the primary judge found that viewed thus, the relevant “risk of harm” that materialised was “the injury that might be suffered from a cyclist falling after their wheel becomes stuck in the holes or gaps in the planks on the bridge.” [44] His Honour added that such falls might give rise to no injury other than bruising, puncture wounds from falling on exposed bolts or a fall leading to a collision with an oncoming truck. In his view, “[a] more remote possibility was that which eventuated.” [45]

5. [48]

   His Honour then turned to the question whether, objectively, the relevant risk of harm would have been obvious to a reasonable person in the appellant’s position within the meaning of CLA, s 5F(1). This required consideration of the objective circumstances facing the person whose conduct is being assessed in order to determine whether the risk of harm would have been obvious to a reasonable person in the plaintiff’s position. [46]

6. [49]

   In this respect, his Honour concluded:

7. [50]

   Accordingly, his Honour found there was no duty on the Council to provide the third category of precaution (see [21] above) relied on by the appellant, namely a sign warning of the gaps in the bridge deck. [48]

8. [51]

   The primary judge considered that s 5L of the CLA (no liability for harm suffered from obvious risks of dangerous recreational activities) was not engaged because the organised long distance charity bike ride, although a recreational activity, was not dangerous. [49] There is no challenge to this finding.

Section 45 – non-feasance protection for roads authorities

1. [52]

   The primary judge then considered whether the appellant was attempting to establish liability for failure to carry out “road work” within the meaning of CLA, s 45 and, if so, whether she had established that the Council “had actual knowledge of the particular risk the materialisation of which resulted in the harm” within the meaning of CLA, s 45(1). [50]

2. [53]

   It was common ground that the Council was the “roads authority” for the bridge. [51]

3. [54]

   Having regard to s 45 and the definition of “road work” in the Roads Act 1993 (NSW), the primary judge concluded that the categories of failure to take precaution for which the appellant contended (failure periodically to put a bitumen seal over the bridge and replace planks, inadequacy of the Council’s inspection regime for the Bridge and failure to install higher guardrails or fencing on the bridge) were attempts to establish liability for a failure to carry out road work. [52] There is no challenge to these findings.

4. [55]

   His Honour also held, applying Colavon Pty v Bellingen Shire Council [53] that as the erection of a warning sign “would fall within the definition of ‘traffic control facility’ within the meaning of s 45E of the Transport Administration Act [it] is not a ‘road work’ for the purposes of the Roads Act and, by extension, s 45 of the CLA”. [54] There is no challenge to this finding, save to the extent that the appellant challenges the primary judge’s finding that the erection of warning sign involved the exercise of a “special statutory power” for the purposes of s 43A. [55]

5. [56]

   The primary judge found that the “particular risk” for the purposes of s 45 corresponded with the “risk of harm” he had identified for the purpose of s 5B, CLA, albeit that he referred to it at this stage in the terms propounded by the appellant, that the bridge was “riddled with dangers, one of which ensnared [her], even though she [could not] point to the particular hole into which she fell.” [56] He rejected the appellant’s submission that the risk for the purposes of s 45 was the same as that for which she had contended under s 5B, namely “the risk of falling off the bridge due to the deteriorated condition of the bridge”, observing, “[t]his is odd in that the evidence did not even come close to establishing any knowledge on the part of the Council of a risk of that kind”. [57]

6. [57]

   Next, his Honour held, applying North Sydney Council v Roman, that to defeat s 45, the appellant had to establish actual knowledge in the mind of an officer of the Council with delegated or statutory authority to carry out the necessary repairs to the bridge. [58] The person with the requisite authority to take such action was Mr Madden, although his Honour thought that his supervisor, Mr Jenkins, would, or at least might, suffice. [59]

7. [58]

   His Honour found that Mr Jenkins was aware as at April 2008 that it was proposed that a cycle club would conduct its annual road race and possibly its monthly races across the bridge. However the closest the evidence came to establishing any knowledge of the risk on his part was his acceptance of the “general proposition that if you have got a plank bridge with gaps between the planks which are wider than the tyres on a bicycle it is … no more than common sense that bicycle tyres could get stuck in those gaps and cause injury.” However there was no evidence that Mr Jenkins was aware as at April 2008 (or any time prior) that the bridge had any such gaps. [60]

8. [59]

   The primary judge found that Mr Bailey “saw gaps of sufficient size to trap the wheel of a bicycle but he did not in fact advert to that possibility.” However, he did not have the level of authority to meet the Roman test. Nor did he communicate the existence of the fact that there were gaps in the bridge, or that they posed a risk to cyclists or anyone else, to any other Council officer, including Mr Madden or Mr Davis. [61] His Honour also excluded other Council officers as either not having the requisite knowledge (Mr Davis, the roads supervisor) or the requisite authority (Ms Crichton). [62]

9. [60]

   Mr Madden was not called as a witness. The appellant “sought to rely on such inferences as he could” from this failure. [63] Nonetheless, after noting that the failure to call Mr Madden would only operate to enable the Court to draw inferences more confidently about his state of knowledge provided there was some evidence to support them, [64] his Honour concluded that there was “no evidence to support any inference that Mr Madden had knowledge that there were gaps in the planks of the Bluff Bridge and that they posed a risk to cyclists or anyone else crossing the bridge.” This was because the highest point on the evidence of Mr Madden’s state of knowledge was that Mr Bailey said he “drove down the Orara Way from time to time and as the Council’s bridge engineer he was responsible for the maintenance of its bridges”. However, “there was no evidence as to how often he drove on the road and, more importantly, whether he ever inspected the Bluff Bridge when he did so or otherwise receive any report on its condition.” [65]

10. [61]

    Accordingly, the primary judge concluded that the appellant had not displaced the operation of s 45. The result was that the Council did not have any liability to her for harm arising from its failure to carry out road work, including the three remaining sets of precautions for which she contended. Her claim therefore had to be dismissed. [66]

The precautions

1. [62]

   The primary judge, however, went on to address the allegations of breach on the assumption that the appellant had overcome the hurdles constituted by s 5H and s 45. [67]

2. [63]

   His Honour had earlier considered the evidence the Council relied upon pursuant to CLA, s 42 to demonstrate that, having regard to its limited resources and other responsibilities including in respect of similar wooden bridges, it would not have undertaken the precaution of repairing the bridge by the various means the appellant suggested. [68]

3. [64]

   In the light of that evidence, his Honour rejected the appellant’s submission that the bridge surface should have been resealed with bitumen because he accepted the statement in the joint expert report to the effect that “gaps ordinarily develop in the deck of the bridge and applying a ‘thin bituminous layer’ to the bridge would only eliminate the presence of gaps in the short term” and, too, that having regard to the “large number of timber bridges on the road network under the control of the Council and the relatively high frequency at which a bitumen seal would need to be replaced, a resurfacing regime would appear to entail a very significant ongoing cost for the Council.” [69]

4. [65]

   In November or December 2008 the Council undertook a reconstruction of the bridge deck following an inspection of the bridge by the Council’s engineer in September 2008. This involved replacing some of the longitudinal planks on the bridge at a cost of approximately $70,000-$80,000. The appellant contended that this was a precaution that a reasonable authority in the Council’s position would have taken before the accident in April 2008. His Honour rejected this submission because the “burden of the precaution is considerable, especially in light of the competing responsibilities of the Council. In circumstances where, even if the precaution was adopted the relevant risk, i.e. gaps, would re-emerge.” [70]

5. [66]

   His Honour also rejected the submission that the Council should have replaced individual planks using roving work gangs on the basis that that matter had not been raised with the Council officers and he was not satisfied that the process would be any less resource intensive than the wholesale replacement of the bridge surface. [71]

Section 43A

1. [67]

   The Council also relied on s 43A of the CLA as a defence. [72] The primary judge held that the Council’s power to carry out “traffic control work” conferred by s 87 of the Roads Act 1993 (NSW), which included the power to erect a warning sign, was a “special statutory power” within the meaning of s 43A(2). [73]

2. [68]

   Having regard to his s 42 findings, his Honour concluded that the unreasonableness test in s 43A(3) was not satisfied in relation to any of the suggested precautions, save for the erection of the warning sign. [74]

3. [69]

   His Honour found:

   1. (1)

      that the Council was aware that from time to time cyclists used the road and ought to have known that that was a regular occurrence especially by groups of cyclists. [75]

   2. (2)

      That the risk of harm posed by the gaps in the planks was both foreseeable and not insignificant. [76]

   3. (3)

      That erecting a warning sign of the type that was subsequently erected, telling cyclists to dismount and beware of gaps in the bridge deck, was a reasonable precaution. [77]

4. [70]

   Insofar as the erection of a warning sign was concerned, his Honour said:

5. [71]

   Accordingly, his Honour held:

6. [72]

   Accordingly, the appellant established that the Council was negligent in failing to place a warning sign of the kind subsequently erected on the southern approach to the bridge. However, her case failed because his Honour had concluded the risk of harm posed by the bridge was an obvious one to a reasonable person in her position. [79] The Council challenged his Honour’s conclusion that its failure to erect a warning sign was unreasonable within the meaning of CLA, s 43A, by way of its notice of contention.

Causation and contributory negligence

1. [73]

   His Honour did not address the test for causation in CLA, s 5D. He did observe that the appellant might have difficulties establishing causation in light of his finding that she realised before riding onto the bridge that there were gaps in the planks large enough to catch her wheels. [80] The Council embraced this observation in support of its notice of contention ground dealing with causation.

2. [74]

   His Honour also rejected the Council’s contention that the appellant was guilty of contributory negligence. He concluded that having observed the gaps, the appellant had decided to ride in diagonal moves across the bridge, and that to suggest she should have done more entailed hindsight analysis. [81]

3. [75]

   Accordingly his Honour gave judgment for the Council and ordered that the proceedings be dismissed.

Costs

1. [76]

   In a later judgment, his Honour dealt with the issue of costs having regard to an offer of compromise the Council had made. His Honour held that it was a valid offer and that there was no reason to otherwise order. [82] Accordingly, he ordered the appellant to pay the Council’s costs of the proceedings on the ordinary basis up to and including 15 August 2012 and on an indemnity basis on and from 16 August 2012. [83]

2. [77]

   The notice of appeal propounded numerous grounds of appeal, however in amended written submissions and orally, Mr C T Barry of Queen’s Counsel, who appeared at trial and on appeal with Mr M P Tanevski, said the appeal was limited to the following grounds. First, that the primary judge erred in formulating the risk of harm in too generic a manner, which ignored relevant circumstances, including the risk that materialised. Secondly, that that the primary judge erred in finding the Council had established its defences. In the latter respect, the appellant focussed in particular on the primary judge’s findings that the risk of harm was an obvious one within the meaning of CLA, s 5F and that erection of the warning sign involved the exercise of a “special statutory power” within the meaning of CLA, s 43A(1)(a).

3. [78]

   The Council filed a notice of contention challenging the primary judge’s finding that the s 43A unreasonableness test was met in relation to the erection of the warning sign. It also contended his Honour should have found that there was no causal connection between its alleged negligent acts or omissions and the suffering of harm by the appellant, and that, if it was negligent, the appellant was guilty of contributory negligence.

4. [79]

   In the course of oral submissions, Mr R Sheldon of Senior Counsel, who appeared at trial and on appeal for the Council, conceded that if the Council lost on obvious risk and subject to its s 43A defence, it would lose on appeal. This was because the Council accepted that if it had erected a warning sign advising cyclists to dismount and walk their bicycles across the bridge, the appellant would have done this. Accordingly causation would have been established.

5. [80]

   Mr Barry originally filed written submissions in April 2014 which supported all grounds of appeal. In July 2014 he filed amended submissions and abandoned the original submissions.

6. [81]

   Mr Barry’s submissions first focused on the proposition that the case was about holes in the degraded planks producing a risk which the appellant did not perceive. He contended that the hole (or gap) in which the appellant’s bicycle wheel became wedged was shown in the Field photographs. [84]

7. [82]

   Confronted with the proposition that he appeared to have abandoned at trial any contention that the appellant’s wheel became wedged in the hole shown in those photographs, Mr Barry said that at trial he had put the appellant’s case on the basis that her wheel had become jammed in a gap which was larger than anticipated, without identifying which gap on the bridge that was.

8. [83]

   Accordingly, Mr Barry secondly submitted that the distinction between a “gap” between planks and a “hole” in degraded planks was significant as it demonstrated that the risk posed to the appellant was qualitatively different to the “usual” risk associated with gaps between planks on wooden bridges. He argued that this distinction was relevant to determining the obviousness of the risk, namely by showing that, by cycling at angles across the bridge, the appellant was “act[ing] reasonably to deal with the risk” as she understood it, yet still had an accident – the occurrence of which proved that the risk was not obvious.

9. [84]

   Thirdly, Mr Barry contended that the primary judge’s finding as to obvious risk suffered from a logical inconsistency. This was because the appellant gave evidence that she did not see what caused her accident. He argued that it was not logically possible to have an “obvious risk” if a reasonable person such as the appellant would not have perceived it to exist.

10. [85]

    Fourthly, Mr Barry submitted that the relevant risk (or, at least the “obvious risk”) was the risk of harm that actually befell the appellant, namely of injury resulting from a cyclist falling from the bridge after having their wheel trapped in a “big hole” or “gap” on the bridge’s surface. Thus, Mr Barry emphasised the primary judge’s findings that “[the appellant] did not anticipate that the gaps would prove to be ‘big holes’, that at the time she fell she was travelling slowly and that she did not consider it even as a ‘remote possibility’ when she rode onto the bridge that she would fall onto the river bank.” [85]

11. [86]

    Fifthly, Mr Barry submitted that the primary judge’s formulation of the “risk of harm” and consequently, obvious risk, was too “generic”, both in excluding the fact her injury resulted from falling over the bridge and also in failing to take into account all the causes of the harm to the appellant. He contended his Honour ought also to have considered, for example, the fact that the accident occurred on a grey day, that there were shadows on the road, that a cyclist looking ahead may not see particular gaps, repeated that there were larger than expected holes or gaps, that the appellant positioned her bicycle towards the left-hand guardrail to avoid oncoming traffic as she was leaving the bridge and that she reached to grab the rail because she was too close to it to put her foot on the bridge deck. He emphasised the appellant’s evidence that one of the reasons she could not see the gap into which her bicycle wheel was trapped was because it was overcast and the surface of the bridge was grey.

12. [87]

    Sixthly, Mr Barry submitted that had the primary judge identified the relevant risk by reference to the particular circumstances of the appellant’s accident referred to above, his Honour would not have found the risk to which she was exposed to be “obvious”, as his Honour had found that falling from the bridge while cycling across it was a “remote possibility”. [86]

13. [88]

    Accordingly, had the s 5H defence not succeeded, Mr Barry submitted the appellant would have been successful, having the benefit of his Honour’s finding that the erection of a warning sign was “a reasonable precaution for the Council to undertake (CLA, s 5B(1)(c) and in fact it was unreasonable for it not to (s 43A).” [87]

14. [89]

    Seventhly, Mr Barry submitted that even if the primary judge did not err in identifying the “obvious risk”, in order for the s 5H defence to be made good, it was necessary that the Council prove the appellant had voluntarily accepted the risk of which she was presumed to be aware. He contended that there was no evidence the appellant had done so. [88]

15. [90]

    Mr Barry next submitted that the primary judge erred in finding for the purposes of CLA, s 45 that the Council did not have actual knowledge of the particular risk which caused the accident.

16. [91]

    He contended that a Jones v Dunkel [89] inference should be drawn because of the Council’s failure to call Mr Madden, the bridge engineer, and the main person who could give direct evidence of the Council’s state of knowledge. He argued that there was evidence that, given his engineering expertise, his involvement in preparing submissions concerning funding for bridges in the Council’s budgets, the objective condition of the bridge and taking into account his Honour’s acceptance that the experts were aware of the likely deterioration of such bridges, [90] Mr Madden must have had actual knowledge of the danger that it presented to cyclists, including the danger of its condition causing a cyclist to go over the low guardrail. As such, it was “common sense” that a bridge engineer with Mr Madden’s experience would anticipate the materialisation of the risk which resulted in the appellant’s accident. He also relied on Lord Mansfield’s statement in Blatch v Archer [91] concerning the evaluation of evidence having regard to the respective parties’ powers to adduce or contradict it.

17. [92]

    As to the other precautions the appellant contended the Council should have taken, Mr Barry accepted the primary judge’s finding that funds were not available from two specific sources the appellant had identified at trial. [92] However, he submitted that having regard to the evidence that “in the year ended 30 June 2007 the Council had allocated approximately $15 million in cash to spend on the maintenance of roads and bridges”, [93] the primary judge erred in accepting the Council’s submission that “the amount of funds allocated to ‘transport and communication’ in a fiscal year involved the ‘general allocation of resources’ and that pursuant to s 42(b) it could not be challenged.” [94]

18. [93]

    In any event, Mr Barry submitted the appellant was not challenging the “general allocation of resources”. Rather, she was submitting that the fact that the bridge was repaired shortly after the accident for $315,062 was powerful evidence that part of the $15 million could have been spent in a manner which would have prevented the accident. Absent evidence from the Council as to why that “could not have been done sooner”, the Council’s s 42 “defence” should have failed.

19. [94]

    Secondly, Mr Barry submitted that it was cost effective and not unreasonable to expect that the Council would replace individual planks on the bridge from time to time. He again relied on the availability of $15 million and the fact that the bridge was the only wooden bridge left on the only alternative northern route to the Pacific Highway.

20. [95]

    Mr Barry argued that the primary judge erred in dismissing that submission as not eliminating the risk of harm in the medium to long term on the basis that the planks would need to be frequently replaced and that gaps would re-emerge. [95] He submitted that the replacement of individual planks where there were “big holes” between them was a reasonable precaution which would have avoided the accident. He repeated his submission that the Court should find Mr Madden had actual knowledge of the risk for which the appellant contended and should have arranged for the replacement of planks where “the gaps were so wide they called for remedial measures” to avoid that risk. He accepted that submission entailed the Court concluding the accident occurred in an area where such gaps existed and relied on the Field photographs in this respect.

21. [96]

    Finally, insofar as s 43A was concerned, Mr Barry submitted that erection of the warning sign did not require the exercise of any “special statutory power” in circumstances where the Council owned the road on the bridge. Alternatively he supported the primary judge’s finding of unreasonableness.

22. [97]

    The Council filed written submissions on 28 May 2014 in response to the appellant’s original written submissions. On 28 July 2014 it filed further written submissions in response to the appellant’s amended submissions. It relied on its first written submissions insofar as they concerned issues the appellant maintained in her amended written submissions.

23. [98]

    Mr Sheldon first submitted that, insofar as the appellant sought to rely upon her wheel having become trapped in a “big hole” or “gap”, there was no evidence to that effect and that the primary judge had rejected the appellant’s submission at trial that such a gap was necessary to the mechanism of the accident – a finding not challenged on appeal.

24. [99]

    Secondly, Mr Sheldon submitted that the primary judge did not err in identifying the risk of harm. He argued that it was consistent with authority to identify a risk which may lead to some injury or damage for s 5B(1) purposes as the primary judge did, rather than do so by reference to the precise risk that materialised in the instant case. On the appellant’s approach, he argued, the s 5B(1) exercise was artificially constrained by a defendant having to be able to foresee the precise chain of events leading to the harm. He contended the appellant’s formulation of the risk engaged in impermissible hindsight reasoning. He also submitted that if the appellant’s submission as to the correct formulation of the risk was accepted, the risk for which she contended was insignificant, far-fetched and fanciful and did not call for a response.

25. [100]

    In response to the appellant’s argument that the risk identified had to incorporate the actual harm that manifested because an injury would not necessarily result from a bike being stopped by having its wheel caught, Mr Sheldon submitted that this fact did not deprive the prospect of such an event of the characteristics necessary to constitute it a risk for the purposes of the CLA. It was sufficient that there was a risk of injury, whether or not injury in fact occurred. Any other analysis would introduce a requirement that injury must be the only outcome from exposure to the risk or, perhaps, that injury is likely. He argued there was plainly a risk that if a rider fell from a bicycle, he or she would suffer injury, whether or not such injury materialised.

26. [101]

    Thirdly, Mr Sheldon supported the primary judge’s identification of the “obvious risk”. He submitted that if a bicycle wheel became trapped there was the clear potential of some injury even if all that happened was that the cyclist fell to the ground. All that happened in the instant case was a more dramatic manifestation of the potential harm. To the extent the appellant submitted the risk was not “obvious” because she was unaware of “big holes”, Mr Sheldon repeated that there was no finding that her wheel became trapped in that manner. Rather, he contended, the effect of Mr Barry conceding that he could not prove the appellant’s wheel had become trapped in that manner meant that he no longer challenged the primary judge’s finding that her wheel became trapped in a gap wider than 20 millimetres and that such gaps existed along the left-hand side of the northern end of the bridge. [96]

27. [102]

    Mr Sheldon also submitted that the fact the appellant did not see how her wheel became trapped did not mean the risk of that occurring was not an obvious one, having regard to CLA, s 5F(3) and s 5F(4). He also relied upon the fact that the appellant was presumed to be aware of the type or kind of risk the gaps between the wooden planks on the bridge posed, even if she was not aware of the precise nature, extent or manner of occurrence of that risk. [97]

28. [103]

    Fourthly, Mr Sheldon submitted that the appellant’s submissions about the Council’s knowledge of the actual risk for the purposes of CLA, s 45 proceeded again on the unestablished premise that her wheel was trapped in a “big hole”. He also contended that, contrary to the primary judge’s finding that the “particular risk” in s 45 was the same as the s 5B risk, as a matter of statutory construction the “particular risk” in s 45 is narrower than the s 5B risk. However, this was of no moment where, whether the risk was identified on a broad or narrow basis, there was no evidence of anyone, let alone in the appropriate position in the Council, having any knowledge of such a risk.

29. [104]

    Mr Sheldon submitted there was no basis in the evidence for the primary judge to draw an inference that an officer of the Council had actual knowledge for the purposes of CLA, s 45. Before any such inference could be drawn it was necessary for the appellant to produce some evidence which required the Council to respond. There was no such evidence.

30. [105]

    Further, as a matter of fact, Mr Sheldon submitted that the photographs of the bridge tendered at trial depicted the bridge in a worse condition than when Mr Bailey inspected it. He also contended that Mr Barry’s submissions failed to grapple with the necessity for the purposes of s 45 that the relevant Council officer(s) have knowledge of the “particular risk the materialisation of which resulted in the harm.” Thus it was not to point to contend that Mr Madden must have been aware of the risk of deterioration, rather than pointing to actual knowledge that it had deteriorated in a particular relevant respect. Rather, to satisfy s 45, the appellant had to establish that Mr Madden would have known of the “particular gap in such proximity to the guardrail that, if encountered, a bike rider may go ‘over the side’”.

31. [106]

    Fifthly, Mr Sheldon submitted that the appellant’s submission that the requirements of the common law defence of voluntary assumption of risk had to be established before the s 5H defence was made good was not supported by authority.

32. [107]

    Finally, Mr Sheldon submitted that Mr Barry’s challenge to his Honour’s finding that he could not examine how the Council allocated the $15 million available for maintenance of roads and bridges in the financial year prior to the accident involved hindsight reasoning. There was no evidence that the bridge should have been accorded any priority over the other many wooden bridges for which the Council was responsible until the appellant’s accident.

33. [108]

    Mr Sheldon made much the same submission concerning Mr Barry’s argument about individual plank replacement. He also relied upon the fast deterioration of replacement planks such that that work would only ameliorate the situation in the short term, contending that it would therefore be unreasonable for the Council to have to divert its resources in this manner. [98]

Notice of contention – s 43A

1. [109]

   The Council challenges the primary judge’s finding that the failure to erect warning signs was unreasonable in the sense contemplated by CLA s 43A. It submitted that if that finding was correct, the logical corollary was that every timber bridge in rural New South Wales with the attributes of the bridge at the time of Mr Bailey’s inspection in February 2008 would have a sign warning of the presence of gaps between the planks. There was no evidence of this proposition.

Notice of contention – causation

1. [110]

   In his written submissions, Mr Sheldon argued that although the primary judge did not decide the issue of causation, it was open to this Court, should it find adversely to the Council on the obvious risk issue and any of the defences, to conclude the appellant had not established any negligence on the Council’s part was a cause of her injury. However, as I have said, Mr Sheldon conceded in oral argument that the Council did not contend there was a causation issue with respect to the sign.

2. [111]

   Insofar as the appellant contended the Council ought to have repaired the bridge following Mr Bailey’s February inspection by replacing some planks, Mr Sheldon submitted that the evidence demonstrated it would have taken all of the time, that is to say, six to eight weeks, between inspection and the accident even for the money for such repair to be procured. This period was based on evidence given by Mr Lindsay, the Council’s Manager of Finance and Supply, which the primary judge accepted. [99]

3. [112]

   Secondly, he contended that it could not be assumed having regard to the state of the bridge overall that the planks replaced would be the ones which trapped the appellant’s bicycle wheel. Furthermore, irrespective of when the timber was replaced it would present some risk to a cyclist.

Notice of contention - contributory negligence

1. [113]

   Mr Sheldon submitted the Court would find the appellant was guilty of contributory negligence. She appreciated the need to cross the gaps at an angle to prevent the risk of her wheels becoming caught, but ceased that approach towards the end of the bridge thus exposing herself to the very risk of which she was aware.

2. [114]

   The appellant’s response to the Council’s notice of contention submissions on s 43A are sufficiently encapsulated in her support of the primary judge’s unreasonableness finding.

3. [115]

   Insofar as causation is concerned, the appellant relies of course upon the Council’s concession in relation to the warning sign.

4. [116]

   Otherwise Mr Barry challenged the Council’s submission that approval for expenditure on the remedial measures requires six to eight weeks. He pointed to documents indicating that the Council had been seeking funding to replace 21 bridges (which included the bridge) for which it was responsible since at least August 2006 and contended it received a grant of around $2 million dollars each year for regional roads. Thus, it had the moneys at all times.

5. [117]

   Insofar as contributory negligence was concerned, Mr Barry supported the primary judge’s reasons and also appeared to submit that the appellant’s evidence that she was looking ahead rather than down immediately before the accident was a reasonable response to her concern about trucks coming onto the bridge from the opposite direction.

6. [118]

   As I have said, the Council conceded, subject to the s 43A defence, that if it lost on obvious risk it would lose on appeal. It also conceded that the appellant would have dismounted and walked across the bridge if the warning sign it subsequently erected had been in place prior to her accident. Accordingly it accepted that causation would have been established.

7. [119]

   However, if the Council succeeds on obvious risk, that does not answer the question whether it otherwise breached its duty of care to the appellant in relation to the matters for which the primary judge found it had established a defence under s 45. As the primary judge held, success under s 45 is sufficient to deal with all precautions for which the appellant contended other than the warning sign.

Identification of the “risk of harm”

1. [120]

   The foreseeability inquiry at the duty and breach stages raises different issues which progressively decline from the general to the particular. [100] Section 5B operates on the basis that the Court has identified the “risk of harm” for duty of care purposes. That is to say, s 5B(1) is informed by the scope of the duty of care to which I have earlier referred. [101]

2. [121]

   The existence or non-existence of a duty of care fell to be considered at “a higher level of abstraction” than some factual considerations which are relevant to the breach question. [102] The inquiry to be made in relation to duty or no duty related to the foreseeability of harm resulting to the appellant from the conduct of the Council, considered quite generally, in this case, as that of the roads authority responsible for the maintenance of the bridge. [103] At the stage when the primary judge was considering the risk of harm for the purposes of formulating the relevant duty of care, his Honour was laying the foundation for “identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk.” [104]

3. [122]

   Accordingly, a duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach. [105] The inquiry, being a prospective one, with a view to identifying what risk a reasonable person in the defendant’s position would foresee and evaluate to determine what, if any, precautions ought be taken, involves identifying the “true source of potential injury.” [106] The CLA, s 5B(1) inquiry determines whether, in the light of that risk of harm, the defendant has breached its duty of care.

4. [123]

   Formulated on that basis, applying the primary judge’s identification of the “risk of harm”, the Council was obliged to take reasonable care that its exercise of or failure to exercise its powers as the relevant roads authority did not create a risk of injury to a cyclist falling after their wheel became stuck in the holes or gaps in the planks on the bridge.

5. [124]

   In my view, the primary judge identified the risk of harm in accordance with principle, albeit that his Honour did not do so by reference to the authorities to which I have referred.

6. [125]

   His Honour counselled against hindsight reasoning by reference to Basten JA’s statement to like effect in Action Paintball Games Pty Ltd (In liquidation) v Barker. [107] His Honour also applied Garling J’s statement in Benic v State of New South Wales [108] that, it was “sufficient if the risk of harm is described as a class of injury, as distinct from the particular injury actually suffered by the plaintiff” and that that “approach accord[ed] with the traditional common law approach”.

7. [126]

   Mr Barry criticised his Honour’s reasoning in this respect as inconsistent with Garzo and Mooney. [109] In Garzo, Basten JA referred to s 5B as requiring the “identification of a risk of harm, against which a person has failed to take precautions” and that “[g]iven its context, the risk must be that which materialised in the case of the injured person seeking to claim in negligence.” [110]

8. [127]

   In Mooney, in the passage to which Mr Barry referred, Sackville AJA applied Basten JA’s statement in Garzo. Sackville AJA introduced this part of his reasoning by referring to the fundamental principles that determining whether a reasonable person would have taken precautions against a risk of harm for the purposes of s 5B(2) must be “addressed and answered prospectively, not with the wisdom of hindsight”, and that “the Court must not focus exclusively on the way in which the accident came about [not on] the causes of the accident that has happened.” [111] His Honour cited as authority for the latter proposition the passages from Vairy and Fahy to which I earlier referred. [112]

9. [128]

   Baden Cranes Pty Ltd v Smith, to which Mr Sheldon drew attention, was a case in which pins holding a bayonet connector on a crane sheared, leading to the toppling of the crane during operation, and the plaintiff suffering injury. Basten JA identified the risk which materialised as being a function of two features of the crane: the original design and the crane’s adaptation for transport in one piece with the boom supported by a dolly which required release of the mechanism which otherwise held the two parts of the slew ring locked in place. [113] For the purposes of assessing the “relevant harm”, his Honour focused “upon the initial risk, namely the shearing of the pins, caused by the mistaken driving of the vehicle without releasing the slew lock”, rather than the actual mechanism of the plaintiff’s injury which was “the toppling of the crane during operation, which in turn led to the plaintiff being thrown to the ground and suffering injury.” [114] As can be seen, his Honour identified the “true source of injury” in determining the risk which materialised.

10. [129]

    Much of the debate concerning the identification of the risk of harm stems from Gummow J’s statement in Dederer that “[i]t is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.” [115] As his Honour also emphasised, “breach must be assessed prospectively and not retrospectively.” [116] Gummow J criticised Ipp JA’s identification of the “risk that materialised … [as] that of serious spinal injury flowing from the act of diving off the bridge” [117] as obscuring the “true source of potential injury.” In his Honour’s view the risk of harm was correctly identified as “the risk of impact upon jumping into the potentially shallow water and shifting sands of the estuary.” [118]

11. [130]

    In Gummow J’s view, the “mischaracterisation of the risk” led to two errors: it “distracted from a proper evaluation of the probability of that risk occurring” and “erroneously attributed to the RTA a greater control over the risk than it possessed.” [119] Thus, the “first error … incorrectly focused attention on the frequency of an antecedent course of conduct, namely jumping and diving, and not on the probability of the risk of injury occurring as a result of that conduct, namely impact in shallow water.” In this respect Gummow J emphasised that “in order that the act may be negligent there must not only be a reasonable possibility of its happening but also of injury being caused”. [120] His Honour’s own formulation of the risk shifted the focus to the fact that that “no-one was injured until Mr Dederer’s unfortunate accident” so that “[f]ar from being a risk with a high probability of occurrence, the probability was in truth very low.” [121]

12. [131]

    The “second error, by focusing on the RTA's role in constructing the bridge from which Mr Dederer dived … overlooked the limited nature of the RTA’s control over the actual risk of injury faced by Mr Dederer.” [122] In this respect, Gummow J distinguished the case from one in which “the bridge collapsed … the footpath was defective, or … the side handrail gave way.” [123]

13. [132]

    So understood, it can be seen that Gummow J’s identification of the risk was undertaken prospectively and not by specific reference to how the plaintiff was injured. Thus, Mr Dederer dived off the bridge, whereas Gummow J formulated the risk of harm more broadly by reference to “jumping”. Secondly, Mr Dederer (who was about 182 centimetres tall) was injured because he dived into approximately two metres of water and struck his head on a sandbar.

14. [133]

    In my view, the primary judge did not err in the manner in which he identified the risk of harm for the purposes of CLA, s 5B. Here the “true source of potential injury” stemmed from the defective condition of the bridge which led to the risk of injury to a cyclist whose wheel became stuck in one of the gaps between the wooden planks, leading to a fall. His Honour correctly included in the risk of harm he formulated the possibility of “injury being caused” by the defective condition of the bridge. Identifying the defective condition of the bridge focused attention on the Council’s role in creating the risk of harm and on the s 5B(1) inquiry into its foreseeability and significance for the purpose of determining what, if any, precautions a reasonable person in the Council’s position would have taken.

15. [134]

    Unlike Dederer, in this case the risk arose from the state of the bridge. As his Honour explained, the more probable injury would be occasioned by impact with the bridge deck itself, or collision with traffic on the bridge. The mechanism of the appellant’s injury (being thrown off the bridge) was a “more remote possibility”. [124]

16. [135]

    The risk of harm the appellant propounded obscures the “true source of potential injury” in the manner Gummow J identified in Dederer. It would distract from a proper evaluation of the probability of the real risk of harm. On the appellant’s formulation involving injury after being thrown over the guardrails on the bridge, the Council could reach the same conclusion as the primary judge, namely that this was a “more remote possibility”. Accordingly, as Mr Sheldon submitted, it could assess such a risk as “insignificant” in CLA, s 5B(1) terms such that it was not required to take precautions against it. On the appellant’s formulation a reasonable response by the Council would be the erection of guard rails of sufficient height to preclude falling off the bridge, rather than repairing the true source of harm: the defective road surface. [125]

Obvious risk

1. [136]

   The question of obvious risk in CLA, s 5F involves the determination of whether the plaintiff was exposed to a risk of harm which would have been obvious to a reasonable person in his or her position. The focus of the enquiry is not upon the putative tortfeasor but upon the person who has been injured or, more accurately, a reasonable person in his or her position. [126] The test is an objective one and must take account of the objective circumstances of the person whose conduct is being assessed. [127] In that inquiry “the plaintiff’s state of mind is [not] determinative, but [rather] what a reasonable person in his or her position would regard as obvious.” [128]

2. [137]

   “Risk” in s 5F(1) “refers to the chance or possibility of an occurrence which results in ‘harm’, which is defined in s 5 to include ‘personal injury or death’.” [129] Whether or not a risk is “obvious” may depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff. [130]

3. [138]

   “Obvious” means that both “the factual scenario facing the plaintiff” and “the risk are apparent to and would be recognised by a reasonable [person], in the position of the [plaintiff] exercising ordinary perception, intelligence and judgment.” That means the Court will take into account, for example, the age and level of experience of the plaintiff. [131] Whether or not a risk is “obvious” may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff. [132] A risk may be “obvious” even though it has a low probability of occurring and is not prominent, conspicuous or physically observable. [133]

4. [139]

   As I have said, prima facie, the plaintiff’s actual knowledge of matters which constitute the risk of harm is irrelevant, except to the extent that how any such knowledge was acquired may be relevant to the forward looking inquiry as to whether the risk would have been obvious to a reasonable person in his or her position. However, as the “obvious risk” inquiry is into the knowledge that a reasonable person in the appellant’s position should be taken to have had, it may be relevant to know the extent to which he or she was actually aware of the risk in whole or in part. That “would be a circumstance to be taken into account when considering what would have been obvious to a reasonable person in the position of the respondent.” [134]

5. [140]

   The proposition referred to in the previous paragraph does not leave room for Mr Barry’s submission that the risk was not “obvious” because the appellant did not see what caused her accident. At a practical level, that was, no doubt, because at the time her wheel became jammed, she was not looking at the bridge deck. [135] On a more principled level, focussing on the appellant’s appreciation of the particular circumstances of her accident distracts from the objective inquiry s 5F requires. In my view, a reasonable person in the appellant’s position, exercising ordinary perception, intelligence and judgment, would have realised, had that person been attentive to the condition of the bridge as they cycled along it, that gaps such as that in which the primary judge found her wheel became jammed, were present all along the bridge surface as the evidence manifestly demonstrated. Mr Barry’s submission also fails to take into account CLA, s 5F(4).

6. [141]

   In this case it is relevant that the appellant was aware of the risk of harm the primary judge identified, as is apparent from the passages emphasised in her affidavit. [136] In cross-examination, the appellant agreed that she would avoid a longitudinal gap on a road because of the risk the bicycle would “get stuck … and fall over”. She knew before the accident that such gaps on a road surface presented a danger to her as a cyclist, and, accordingly, responded by cycling across them at a “slight angle”. The alternative was to “stop and avoid them”. [137] She knew that such gaps could “cause you to lose control of your bike”. [138] She also knew that if she “got caught in a crack” she was “at risk of having an accident [if her] wheel got caught” so she might “fall” or “fall over”, but not over the bridge. [139] Prior to falling, the appellant had seen “cracks and … holes” on the bridge. [140] She agreed that a crash on a bicycle could lead to “catastrophic injuries”. [141]

7. [142]

   The appellant’s main challenge to the primary judge’s finding that the risk was an obvious one depended on the Court accepting that the “risk of harm” for s 5B(1) purposes should be defined in terms which included the precise mechanism of the accident. There is room for the proposition, however, that the s 5F inquiry focusing as it does on the “risk … in the circumstances” requires a focus which includes the actual mechanism of injury. Much depends, in the application of provisions dealing with “obvious risk”, upon the degree of generality or precision with which the risk is stated. [142]

8. [143]

   In Fallas v Mourlas, when discussing the concept of “obvious risk” in relation to CLA, s 5L, Ipp JA said that “the question is not whether it was obvious that there was a risk that the very facts that did in fact materialise could materialise. Rather, it is whether there was an obvious risk that that kind of thing might materialise.” [143] That language reflects CLA, s 5G.

9. [144]

   Elsewhere, the risk the Court must consider when determining whether CLA, s 5F was satisfied has been said to be “that which is the subject of the claim for damages to which the provisions of Pt 1A of the CL Act are to be applied by s 5A(1)” and “that which ‘matured’ and ‘caused [the plaintiff's] injury’.” [144] On this approach, “the forward-looking inquiry required by s 5F is whether that risk of harm would have been obvious in the relevant sense to the hypothetical reasonable person in the circumstances of the plaintiff.” [145]

10. [145]

    In my view it is unnecessary to seek to define the particularity with which the “risk” must be identified for the purpose of being seen to be an “obvious” one. There is much to be said for the view taken at trial, that it is the same “risk” as that identified for duty of care purposes (being that which, as I have said, informs the s 5B(1) inquiry) because the ultimate outcome if “obvious risk” is established is that the defendant will be found not to have owed the plaintiff a duty of care the scope of which included warning of that risk.

11. [146]

    However, assume for present purposes that, in determining “obvious risk”, it is necessary to consider not only the fact that the risk which matured and caused the appellant’s injury was the fact that her wheel became jammed, but also that she was injured after she fell over bridge. In my view the risk of that occurring would have been obvious to a reasonable person in the appellant’s position.

12. [147]

    First, such a person would be aware, as was the appellant, that catastrophic injury could follow a fall from her bicycle. In my view it carries the examination of the circumstance to too minute a level of detail to say that the mechanism of injury to the extent it involved being thrown over the bridge was critical in this respect. It was sufficient that the appellant was aware “of the type or kind of risk, even if [she was] not aware of the precise nature, extent or manner of occurrence of the risk.” [146]

13. [148]

    Secondly, the primary judge held that falling over the bridge was a “remote possibility”. [147] In my view, that risk (albeit that it had a low probability of occurring – s 5F(3)) would have been obvious to a reasonable person in the appellant’s position.

14. [149]

    The guardrails were low, only between 65 and 73 centimetres in height. Such guardrails are “set at a level that the wheels [of vehicles] will largely hit it and be deflected back along the path that the vehicle is supposed to be travelling on … its principal use is not a rail to stop a vehicle charging through it and going into the gap below it.” The guardrail “was not intended, nor was it sufficient, to prevent cyclists from ‘over topping [or] over balancing like in this incident’.” [148]

15. [150]

    Having regard to the ubiquity of the gaps between the planks, the possibility of a wheel being jammed when the bicycle was near the railing, leading to the rider falling over the low guardrails, was obvious.

16. [151]

    In my view the primary judge did not err in concluding the risk was “obvious” within the meaning of s 5F, such that the Council did not owe her a duty of care to warn her of it.

Assumption of risk

1. [152]

   Mr Barry’s submission that it was necessary that the Council establish that the appellant voluntarily assumed the obvious risk identified by the primary judge before s 5H applied does not find support in the text of the CLA.

2. [153]

   The logic of CLA, Division 4 is that once the s 5F obvious risk is identified, s 5G deems the person injured to be aware of that risk and places the burden on that person to prove to the contrary. [149] The primary judge held that in the light of his finding that the appellant “realised before she entered onto the bridge that there were gaps in the planks of the bridge of such a size that they had the potential to catch her wheels”, she “was not able to rebut the presumption created by s 5G(1).” [150] There was no challenge to that finding, save to the extent that the appellant contended for the identification of a risk other than that found by the primary judge.

3. [154]

   Mr Barry submitted the following passage in Angel v Hawkesbury City Council supported his submission:

4. [155]

   As is apparent, that passage confirms the operation of s 5H independent of any necessity to prove voluntary assumption of risk. It also explains that a finding of “obvious risk” does not negate a finding of breach of duty otherwise and may assist where the defence of voluntary assumption of risk is established. The Council did not plead voluntary assumption of risk so it was unnecessary to invoke s 5G in that context. The primary judge considered the appellant’s other allegations of breach.

5. [156]

   The appellant did not draw attention to any “obvious risk” case where no voluntary assumption of risk defence had been pleaded and the Court nevertheless held the defendant had to prove the plaintiff voluntarily assumed the risk of harm identified by the primary judge.

Section 45

1. [157]

   The appellant bore the burden of establishing that CLA, s 45 did not apply. There was no controversy that Mr Madden was the Council officer with relevant authority to carry out the necessary roadwork to eliminate the relevant risk or to consider carrying out such roadwork. However, as the primary judge held, the appellant also had to establish that Mr Madden had “actual knowledge of the particular risk the materialisation of which resulted in [her injuries]”. [152]

2. [158]

   Because “actual knowledge” is required, reliance on imputed or constructive knowledge is precluded. [153] However, as the primary judge held, a finding of actual knowledge can be made by inference and, if the inference is fairly available and the roads authority calls no evidence to rebut it, the Court can more comfortably find actual knowledge. [154]

3. [159]

   In my view the primary judge’s finding was open to him. Resort to assistance from authorities such as Jones v Dunkel [155] does not assist unless a basis for drawing an inference adverse to the Council upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken, [156] had been established, or evidence called it was required to contradict. [157]

4. [160]

   The primary judge held there was no basis in the evidence for inferring Mr Madden had actual knowledge of the particular risk the materialisation of which resulted in the harm. Mr Barry drew attention to entries in the Council’s records which he submitted could found an inference of the relevant knowledge on Mr Madden’s part. One related to a proposal to replace the bridge with a concrete one. Nothing in that document indicated the state of repair of the bridge, let alone the “particular risk the materialisation of which resulted in the harm” was the, or a, reason for the proposal. Rather, the project was described as “increas[ing] the width of the bridge … in accordance with the Austroads Bridge Design”. [158]

5. [161]

   The only other document to which Mr Barry referred was one concerning the replacement of a running plank on the bridge. He submitted Mr Bailey had said that was “the kind of entry a bridge engineer would make” and that bridge engineer was Mr Madden. That submission is not borne out by the transcript to which reference was given, which makes it plain that Mr Bailey did not identify Mr Madden as either the author of the particular entry or entries of that type. [159]

6. [162]

   In my view the appellant has not established that his Honour erred in this respect.

7. [163]

   I note that in his original written submissions, Mr Sheldon submitted that, as a matter of statutory construction, the primary judge erred in construing “particular risk” in s 45 as being the same as the s 5B(1) risk of harm.

8. [164]

   It is not entirely clear why he made that submission as it was not reflected in the Council’s notice of contention. In any event, I do not accept the submission. The primary judge recognised that Botany Bay City Council v Latham [160] identified the s 45 “particular risk” of which the relevant public authority must have “actual knowledge” by reference to the way the plaintiff put her case, being one relating to her tripping on a “particular paver that was uneven or irregular”. In the present case, his Honour identified the way the appellant put her case as relating to the condition of the bridge generally, being that “Bluff Bridge was riddled with dangers, one of which ensnared her, even though she cannot point to the particular hole she fell in”, such that the “particular risk” corresponded with his s 5B(1) risk of harm. [161]

9. [165]

   I would also add that, to the extent the appellant sought to argue that the primary judge should have inferred the Council had actual knowledge of the risk for which she contended which, at least at the outset of the appeal, included a finding that her wheel had been caught in a large gap in the middle of the bridge (which submission was abandoned), as the primary judge held, “the evidence did not even come close to establishing any knowledge on the part of the Council of a risk of that kind.” [162]

Section 43A

1. [166]

   The appellant challenges the primary judge’s conclusion that erection of the warning sign involved the exercise of a special statutory power. Such a power is one “conferred by or under a statute, and … of a kind that persons generally are not authorised to exercise without specific statutory authority.” [163]

2. [167]

   Before coming to that part of s 43A, however, it is necessary to determine “whether and to what extent the liability upon which the defendant is sued ‘is based on’ the exercise of a statutory power conferred on the defendant”. [164] Neither party expressly addressed that proposition in this Court, nor, I would infer from the fact his Honour did not address it, at trial. I shall assume, therefore, that each was content to accept that threshold was crossed.

3. [168]

   However, it is also relevant to note that in Curtis, Basten JA held that:

4. [169]

   The next stage of the inquiry is to determine whether the power so identified is a “special statutory power” as defined in s 43A(2). [166]

5. [170]

   The Council pleaded a number of statutory provisions which the primary judge considered in order to answer the s 43A(2) inquiry. His Honour also followed Rickard in concluding that erection of the warning sign constituted the exercise of such a power in the sense that it was “a power that is ‘of a kind that persons generally are not authorised to exercise without specific statutory authority’.” [167] In that case, Hoeben J (as his Honour then was) held that in the context of a road authority, the power to carry out “traffic control work” conferred by s 87 of the Roads Act, which included the power to erect a sign, was a special statutory power. [168] The primary judge held that Rickard applied having regard to the analogous legislative provisions upon which the Council relied to those which underpinned Hoeben J’s reasons. [169] Mr Barry did not submit that Rickard was wrongly decided.

6. [171]

   In Rockdale City Council v Simmons the Court referred with approval to Rickard. [170] The Court found that the erection of a warning sign could fall within CLA, s 43A(2) if the sign was a “traffic control facility” within the meaning of the Dictionary to the Roads Act, which, in turn, takes one to Part 6 of the Transport Administration Act 1988 (NSW) (the “Transport Act”). [171]

7. [172]

   A sign constitutes such a facility where, either it “is intended to promote safe or orderly traffic movement on roads or road related areas or to warn, advise or inform the drivers of vehicles, or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards”. [172] A sign such as that erected after the accident warning of the hazard constituted by the surface of the road across the bridge would clearly fall within that description.

8. [173]

   In contrast, the boom gates the Council contended constituted a “traffic control facility” in Rockdale City Council v Simmons did not satisfy that definition because they were erected to preclude vehicular entry to a carpark at night in response to residents’ concerns about the behaviour of persons driving vehicles on the carpark in a noisy and antisocial way late at night and in the early hours of the morning. [173]

9. [174]

   Accordingly, I would reject the appellant’s challenge to the primary judge’s finding that erection of a warning sign fell within the meaning of a “special statutory power”.

10. [175]

    The Council challenged, by its notice of contention, the primary judge’s finding that the appellant had established the Council’s failure to erect a warning sign was “unreasonable” in the s 43A sense on the basis that his Honour had not analysed the provision by reference to its terms and the state of mind necessary to satisfy the provision.

11. [176]

    It has been said that s 43A was modelled on “Wednesbury unreasonableness … with the intention of raising the bar for plaintiffs in proof of breach of duty of care by an authority in the exercise of a special statutory power.” [174] The difficulties of transposing a test “concerned with the scope of the powers of an administrative body and with the validity of a decision made by that body [to the contrasting area of] a reasonable response to a foreseeable risk of injury … concerned with the discharge of a duty of care on which turns compensation for injury” are recognised. [175]

12. [177]

    The question whether s 43A(3) is satisfied is a determination to be made from the perspective of the authority, but with an objective element. [176] The plaintiff must establish that no authority acting reasonably having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. That requires demonstrating that no public authority properly considering the issue could place its conduct as within the range of opinions as to what might constitute a reasonable act or reasonable failure to act. [177]

13. [178]

    The primary judge did not have the benefit of the decision in Curtis, however he approached the question applying the objective test mandated by Allianz Australia Insurance. Applying that test he concluded the appellant had established the matters s 43A(3) required because “there was no rational reason to confine Mr Bailey’s inspection in February 2008 to the risk posed by motor vehicles”, the Council knew the bridge was regularly used by the local cycle club both for its annual race and possibly monthly outings and, in circumstances where the Council did not propose to take some step to repair or rebuild the bridge it was unreasonable not to erect a sign which was “cheap and easy to undertake and was likely to ameliorate the risk faced by at least a significant group of the likely cyclists traversing the bridge.” [178]

14. [179]

    Mr Sheldon did not criticise the primary judge’s finding in this respect on any legal basis. Rather he challenged the conclusion as, in effect, setting too high a bar for all councils with wooden bridges in their local government areas. He did not draw attention to any evidence which would support that submission. In my view the primary judge’s decision was specific to the facts of this case and was one which was open to his Honour. Although his Honour found the risk the defective bridge surface posed was an obvious one to an experienced cyclist such as the appellant, there was clearly a class of cyclists to whom that risk may not be apparent. That class should have been considered by the Council in determining what, if any, step it should take to guard against the risk of harm the bridge posed.

15. [180]

    I would reject the Council’s notice of contention in relation to s 43A.

Other precautions

1. [181]

   The precautions other than the warning sign are only relevant in the event the appellant succeeded in establishing the Council had actual knowledge for the purposes of s 45 which she has not done.

2. [182]

   The appellant’s challenge in this respect does, in my view, amount to a challenge to the Council’s “general allocation of … resources”. [179] Mr Barry relied on the fact that the Council had allocated $15 million for maintenance on roads and bridges in the financial year prior to that in which the appellant was injured. He then relied on the fact parts of the bridge were repaired shortly after the accident for $315,062 as evidence of how those funds could have been spent. [180] His other submissions also fall into this category insofar as he seeks to indicate why the bridge should have been accorded a higher priority than other bridges for which the Council was responsible.

3. [183]

   In my view the primary judge did not err in finding the appellant had failed to establish the Council should have taken the other precautions for which she contended.

Causation

1. [184]

   Mr Barry did not suggest that the primary judge should have rejected Mr Lindsay’s evidence concerning the time required to obtain approval for expenditure over $5000. That evidence was not undermined, in my view, by pointing to concerns about 21 bridges, one of which included the relevant bridge and pointing to a fund of money which might have been applied to any of them. That did not weaken Mr Lindsay’s evidence or otherwise assist in identifying the time which might be required to gain such approval.

2. [185]

   Mr Sheldon also complained that the case the appellant now advanced on causation was not put to the primary judge, but put detailed submissions about why the matters to which Mr Barry pointed did not support his argument. It is sufficient to note in this respect his contention that the Council had accorded the bridge a particular priority in terms of precautions such that it did not rank sufficiently highly to warrant intervention. He submitted that the appellant had not alleged the Council had been negligent in the priority it allocated to such intervention prior to the accident. [181]

3. [186]

   In my view the appellant’s submissions on this aspect of causation should not be accepted. Mr Lindsay’s evidence was accepted by the primary judge. The other matters to which the appellant pointed did not support any, let alone any compelling inference, that his Honour erred in doing so.

4. [187]

   Accordingly, in my view there was a strong case that even if Mr Bailey had identified the hazard to cyclists when he inspected the bridge in February 2008, it would not have been repaired by the time of the accident. The Council’s notice of contention on the causation issue, other than in relation to the warning sign, should be accepted.

Contributory negligence

1. [188]

   It is, with respect, difficult to understand his Honour’s finding that the appellant was not guilty of contributory negligence. The principles applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm. [182] The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and the matter is to be determined on the basis of what that person knew or ought to have known at the time. [183] The questions posed by s 5R(2) are essentially the same questions as those which arise in determining the issue of “obvious risk”. Once the primary judge had determined that issue adversely to the appellant, a finding of contributory negligence almost followed as a matter of course.

2. [189]

   The appellant accepted that she knew before the accident that the way to avoid the risks posed by longitudinal gaps was to “stop and avoid them”. [184] The alternative was to keep riding across them at an angle. There is, as I have said, evidence which would support the proposition that the appellant’s wheel was, in fact, facing parallel to the gaps in the surface of the bridge at about the time it became jammed. [185]

3. [190]

   Most importantly it was clearly necessary to stay alert to where the gaps were. The appellant was not looking at the bridge surface when her wheel became jammed.

4. [191]

   In all those circumstances I would assess the appellant as guilty of at least 50 per cent contributory negligence.

Orders

1. [192]

   I would dismiss the appeal with costs.

2. [193]

   MACFARLAN JA: Subject to the following observations, I agree with the judgment of McColl JA.

3. [194]

   The Council did not challenge the primary judge’s finding that in order to lessen the risks to cyclists a reasonable person in its position would have erected a sign warning them to dismount before crossing the bridge. The Council accepted on appeal that if such a warning sign had been erected, Dr Collins would have heeded it and as a consequence would not have suffered her injuries (Transcript p 62). To avoid liability to Dr Collins, it was in these circumstances necessary that the Council either establish that the relevant risk was “obvious” and that it had no duty to warn Dr Collins by reason of s 5H(1) of the Civil Liability Act, or succeed in a defence under s 43 or 43A of the Civil Liability Act. As I consider that the Council established that the risk was obvious, I prefer not to express a view about the statutory defences, they being of some general significance but not critical to the outcome of this case.

4. [195]

   Determination of whether Dr Collins faced an “obvious risk” within the meaning of s 5F of the Civil Liability Act required identification of the relevant risk. I agree with the primary judge and with McColl JA that the risk was, in effect, one of a cyclist’s progress being suddenly arrested by a gap in the bridge’s planking, causing the rider to fall over and suffer injury. The risk as so identified is relevant both for the purposes of s 5F and to foreseeability in relation to questions of duty, breach and causation. It is neither necessary nor appropriate to identify such a risk by reference to the precise mechanism by which the plaintiff suffered injuries (Shaw v Thomas [2010] NSWCA 169 at [43]; Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; (2015) 320 ALR 232 at [100]). It thus does not matter in the present case that the possibility of Dr Collins falling from, as distinct from falling on, the bridge might have been remote.

5. [196]

   Once the risk is defined in this manner, the conclusion that it was obvious readily follows. Dr Collins’ evidence acknowledged that she appreciated that the bridge was constructed of planks with gaps between them before commencing to ride over it. This knowledge led her to attempt to traverse the bridge by riding across the planks at an angle to avoid, as she said, getting “my wheels caught in the gaps between the planks” (Dr Collins’ Affidavit [9]). Her knowledge reflected what a reasonable person in Dr Collins’ position would have appreciated. I add that Dr Collins did not, for the purposes of s 5G(1), prove that she was unaware of the risk. Indeed, her evidence indicated the converse.

6. [197]

   If Dr Collins had established that her cycle wheel caught on a gap that was significantly different in size or character from that which she, or a reasonable person in her position, could have anticipated, her claim may have succeeded. However, her case did not establish this, as she was not able to prove what size or type of gap caused her to fall or, therefore, that it was one that could not have been reasonably anticipated.

7. [198]

   Accordingly, whilst the Council should reasonably have erected a warning sign, s 5H of the Civil Liability Act results in it not being liable for that default because the risk against which the sign would have warned was an obvious risk. There being no other steps that it was proved that the Council should reasonably have undertaken in response to the risk, Dr Collins’ claim fails.

8. [199]

   If Dr Collins had succeeded in establishing that the Council was in breach of its duty, I would, like McColl JA, have concluded that she was guilty of contributory negligence. Dr Collins was aware of the risk, as I have defined it, when she arrived at the bridge. Yet she chose to ride across the bridge by winding her way between the gaps in the planks. To do this, she had to travel back and forward, being, as she said in her affidavit, “cautious about being surprised by a timber truck coming around the bend at a high speed” (at [10]). That caution was no doubt heightened as she reached the far side of the bridge, near that bend in the road, resulting, it would seem, in her taking her eyes of the bridge surface and consequently falling. It was open to her to dismount at any stage in her journey across the bridge. Not to do so when her concern to look at the road ahead apparently required her to take her eyes off the bridge surface in my view constituted contributory negligence of a significant order.

9. [200]

   EMMETT JA: This appeal arises out of injuries suffered by the appellant, Dr Ann Collins, when riding a bicycle over a wooden bridge that straddles the Orara River at Lanitza, New South Wales. The front wheel of the bicycle became stuck in a gap between planks on the bridge and Dr Collins fell over the low guard rail on the side of the bridge and fell onto rocks below the bridge. She suffered significant injuries.

10. [201]

    Dr Collins commenced proceedings in the Common Law Division against the respondent, Clarence Valley Council (the Council), which had the care, control and management of the bridge. Dr Collins alleged that her accident was caused by the Council’s negligence. The Council resisted the claim of negligence and relied on a number of provisions of the Civil Liability Act 2002 (NSW) (the Liability Act).

11. [202]

    In particular, the Council relied on the provisions of Div 4 of Pt 1A of the Liability Act, which deals with assumption of risk. Section 5H relevantly provides that a person does not owe a duty of care to another person to warn of an obvious risk to that other person. Under s 5F, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Obvious risks include risks that are patent or a matter of common knowledge. Further, a risk can be an obvious risk even if the risk is not prominent, conspicuous or physically observable. Under s 5G, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves, on the balance of probabilities, that he or she was not aware of the risk. A person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

12. [203]

    On 15 November 2013, for reasons published on that day, a judge of the Common Law Division directed the entry of judgment for the Council and that the proceedings brought by Dr Collins against the Council be dismissed. His Honour considered that the relevant risk of harm in the case was one that would have been obvious to a reasonable person in Dr Collins’s position at a point no later than the last ten metres before her entry onto the bridge. His Honour considered that such a reasonable person would be an adult cyclist, like Dr Collins, of at least moderate ability, who had successfully negotiated the bicycle over a reasonable distance to that point. Such a person would be aware of the potential risks associated with wooden bridges, but would not have been warned about the specific risk of the bridge in question. Such a person would have been involved, as Dr Collins was, in an organised ride, but not engaged in a race. His Honour found that, from a distance of no less than 40 metres from the bridge, such a person would have seen that he or she was approaching a wooden bridge, which would have raised some degree of caution.

13. [204]

    His Honour found that the existence of the gaps, and their potential to trap the wheels of a bicycle, would have been apparent to such a rider just prior to entering on the bridge. His Honour concluded that, for the purposes of the application of s 5F of the Liability Act, such an awareness at the start of the bridge was sufficient, given that Dr Collins’s accident occurred approximately three-quarters of the way across the bridge and she was travelling slowly. Therefore, his Honour said, s 5H was engaged, so that the duty of care owed by the Council to Dr Collins did not extend to warning her of the risk that materialised.

14. [205]

    His Honour found, assisted by Dr Collins’s own affidavit evidence, that she was aware, before she entered onto the bridge, that there were gaps in the planks of the bridge of such a size that they had the potential to catch her wheels. For that reason, she rode across the bridge at an angle. While his Honour accepted Dr Collins’s evidence that she did not anticipate that the gaps would prove to be “big holes”, he rejected so much of her evidence that asserted that, prior to entering the bridge, she only saw “cracks” between the planks. In those circumstances, his Honour concluded that Dr Collins was not able to rebut the presumption created by s 5G. Thus, his Honour concluded that the Council did not have the duty to warn Dr Collins of the risk that in fact materialised.

15. [206]

    I have had the advantage of reading in draft form the proposed reasons of McColl JA. I agree with McColl JA, for the reasons proposed by her, that there was no error in the reasoning of the primary judge that led to the conclusion that Div 4 of Pt 1A of the Liability Act was engaged. In particular, in identifying the “obvious risk” for the purpose of that Division, it was not necessary that the primary judge define it in terms that included the precise mechanism of the accident that ultimately occurred.

16. [207]

    Dr Collins also contended that, apart from the erection of a warning sign, the Council should have taken three other precautions in response to the risk presented by the bridge: carrying out repairs to the bridge, undertaking an adequate inspection and installing higher guard rails. The Council relied on s 45 of the Liability Act to avoid liability for failing to take those precautions. The primary judge concluded that each of those precautions fell within the scope of the phrases “carry out road work” or “consider carrying out road work” in s 45 and that the Council did not have actual knowledge of the “particular risk” such as to satisfy that section. Accordingly, his Honour concluded that the Council had no liability to Dr Collins for failing to carry out the three other forms of precautions contended for by her. I agree with McColl JA, for the reasons proposed by her, that there was no error on the part of the primary judge in reaching that conclusion.

17. [208]

    In the light of the above conclusions, it is not necessary for me to consider the other statutory defences relied on by the Council. Nor is it necessary for me to express a view concerning the question of contributory negligence on the part of Dr Collins. I agree with McColl JA that the appeal should be dismissed with costs.