Ballina Shire Council v Moore

1. [1]

   WARD P: I agree with Basten AJA.

2. [2]

   MITCHELMORE JA: I agree with Basten AJA.

3. [3]

   BASTEN AJA: On the morning of 27 August 2020, the respondent, Diane Margaret Moore, rode an electric bicycle on a shared pathway on the northern side of the Richmond River at Ballina. (As Ms Moore was the plaintiff in the District Court, it is convenient to refer to her as such in these reasons.) The pathway was used by both cyclists and pedestrians. As the plaintiff sought to overtake two pedestrians, she noticed a metal bollard on the righthand side of the pathway and about 20cm inside the edge of the pathway. The plaintiff did not collide with the bollard, but in seeking to avoid it she momentarily left the track and, in seeking to steer back onto the track, fell off her bicycle and injured her hip.

4. [4]

   On 17 March 2022, the plaintiff commenced proceedings in the District Court at Lismore claiming damages from the Ballina Shire Council (the Council) as the body responsible for the management and control of the shared pathway. The Council denied negligence. It also pleaded that the bollard was an “obvious risk” within the meaning of s 5F of the Civil Liability Act 2002 (NSW), of which the plaintiff was deemed to be aware (s 5G), and denied that it owed a duty of care beyond precautions against a risk of harm faced by persons taking reasonable care for their own safety. In the event of liability, it alleged contributory negligence on the plaintiff’s part.

5. [5]

   Following a three-day trial in mid-November 2022, the trial judge, Priestley SC DCJ, delivered judgment on 14 December 2022 in favour of the plaintiff, awarding damages in an agreed sum of $193,531.39.

6. [6]

   The breach of duty found by the trial judge was the failure to remove the single bollard that remained on the pathway following the removal of a second bollard on the other side of the pathway in 2016. There was no finding that one bollard was more dangerous than two, but rather that the risk of harm could no longer be justified because once one bollard had been removed, there was no justification for retaining the second bollard.

7. [7]

   The Council’s notice of appeal identified 11 grounds, each alleging an error on the part of the trial judge.

8. [8]

   The first six grounds of appeal addressed the judge’s identification of the “risk of harm” and each of the factors required to be addressed by s 5B of the Civil Liability Act in determining whether there had been negligence on the part of the Council. Two grounds (ground 7 and 8) challenged the findings that the breach of duty had caused the plaintiff’s accident; three grounds (ground 9, 10 and 11) challenged the judge’s refusal to find contributory negligence on the part of the plaintiff.

9. [9]

   For the reasons which follow, the Council’s appeal should be upheld and the judgment in favour of the plaintiff set aside, on the basis that the Council did not breach its duty of care to the plaintiff in failing to remove the bollard.

Evidence at trial

1. [10]

   Three witnesses were called at the trial. The principal witness for the plaintiff was the plaintiff herself. Her husband, who had been riding ahead of her on the day in question and did not witness the accident, gave brief evidence of limited relevance to the appeal. The only witness for the defendant was Paul Victor Busmanis, the Manager, Engineering Works, with the Council.

2. [11]

   Both in the Court below and in this Court, extensive consideration was given to the precise manner in which the plaintiff came to fall off her bicycle. The short explanation was that in riding in an easterly direction on the shared pathway, she was confronted with two pedestrians whom she wished to overtake. She rang her bicycle bell as she approached at which one of the pedestrians moved to the left as did the other, but the latter (the one in the centre of the pathway) then moved to the right before moving again to the left. The plaintiff said that it was only when the pedestrian moved to the left for the second time and she went to pass on the righthand side, that she saw the bollard. She successfully avoided the bollard without stopping. In doing so, she moved onto the grass verge at an angle and found herself approaching a line of large rocks to the right of the grass verge along the bank of the river. She then turned back to the left to continue along the bitumen pathway and at that stage she said that “[w]hen I steered the bike left, the bike just came out from under me, and then I proceeded to fall full-impact on my hip on the concrete path”. [1]

3. [12]

   Although the amended statement of claim referred to the location of “large rocks adjacent to the shared pathway”, there was no suggestion that the verge of the pathway was in any way deficient or unsafe to ride on. The mechanics by which the plaintiff fell off the bicycle, beyond the brief description given above, were not usefully further explained. The main concern of the cross-examiner was to explore the steps the plaintiff took in seeking to avoid the pedestrians and how it was that she did not notice the bollard until she was almost upon it.

4. [13]

   No doubt the circumstances of the fall were important in addressing questions of contributory negligence. However, in determining whether there was a breach of duty on the part of the Council, the precise mechanism of the accident is of limited assistance: indeed, it should be eschewed. As explained by Gummow J in Vairy v Wyong Shire Council: [2]

5. [14]

   Hayne J in Vairy stated:

6. [15]

   Before turning to the question of liability, one important aspect of the evidence should be noted. In June 2017, the Council contracted with an independent firm of engineers and planners, Ardill, Payne & Partners, to provide a “road safety audit” with respect to the shared pathway (“audit report”). The audit report identified hazards by reference to a series of 46 photographs taken at different points on the pathway. Item (and photo) 017 showed the footpath heading east, with the yellow bollard with red diagonal stripes on the righthand side of the pathway, though not against the righthand edge, together with a warning sign on the other side of the pathway. Mr Busmanis was asked about the sign and stated: [3]

7. [16]

   With respect to that particular site, the report stated: [4]

8. [17]

   The frequency of the risk was identified as “occasional”, meaning that it might materialise once every five to ten years. The severity was identified as “minor” which carried the following explanation in the accompanying table. [5]

9. [18]

   The risk itself was described as “medium” which carried a “suggested treatment approach” in the following terms:

10. [19]

    The provenance of the report was explained by Mr Busmanis in the following terms: [6]

Liability of Council

1. [20]

   As the trial judge noted, the question of liability turned on the application of s 5B of the Civil Liability Act, which provides:

2. [21]

   The trial judge accepted that the risk of harm was that identified by the plaintiff in par 6(b) of the amended statement of claim, in the following terms:

3. [22]

   The Council contended on the appeal that the judge had accepted a risk identified at too high a level of generality. In doing so, attention was distracted from the need for a number of factors to coincide before any significant risk of harm eventuated.

4. [23]

   In Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd, [7] three members of the High Court (Gordon, Edelman and Gleeson JJ) gave detailed consideration to the characterisation of “risk” at the appropriate level of generality. [8] In addressing the characterisation of the risk for the purposes of breach of duty, the joint reasons stated:

5. [24]

   Section 5C(a) states that “the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible”. It has obvious relevance to a public authority managing large areas, including reserves, parks, sporting facilities, and public facilities. At least on one view, its function is not so much to confirm the importance of a defendant not avoiding liability by characterising a risk with too much specificity in order to demonstrate that the risk was not reasonably foreseeable. The purpose of s 5C(a) is to ensure that an assessment of what precautions a defendant should have taken is not judged by too great a focus on the precise risk which materialised, but by having regard to the broad range of situations and circumstances for which a defendant, particularly a statutory authority, may be responsible. In this respect it reflected the general law. [9]

6. [25]

   For example, and relevantly to the present case, the focus of hindsight reasoning in the present case was upon one particular obstacle on a particular footpath. However, the footpath was 8.25km in length and an independent safety audit in June 2017 identified 46 risks of varying degrees of seriousness. (The precise risk which eventuated was not identified.)

7. [26]

   Although there was an absence of detailed evidence as to the duties of the Council, Mr Busmanis stated, without challenge, that he had separate budgets for various engineering works, including a budget for footpath maintenance in 2020 of $180,000. [10] The Council also had what was known as a “customer maintenance request” (CRM) system which logged thousands of requests in the course of a year. [11]

8. [27]

   Whatever the purpose of s 5C(a), the warning in the reasoning in Tapp must be accepted. It may also be noted that the contrary tendency, namely to identify a risk at such a high level of generality as to ignore the actual circumstances in which the accident occurred and the particular hazard which precipitated it, is also to be avoided. That requires some degree of attention to the circumstances of the case.

9. [28]

   Applying the principles stated in Tapp at [107], there was no error on the part of the trial judge in accepting the plaintiff’s identification of the risk of harm which materialised.

10. [29]

    The next question is whether the Council was negligent in failing to take a precaution against the risk of harm, namely by removing the bollard. First, was the risk foreseeable? The risk that a cyclist, in trying to avoid a collision with the bollard might take steps to avoid it by riding onto the verge was foreseeable. Whether the risk that the cyclist would fall off his or her bicycle in seeking to return to the pathway was also foreseeable is less clear. The risk that was foreseen on the safety audit did not involve that element. However, it may involve too precise an identification of the manner in which the harm occurred to consider a risk of that level of precision. The possibility that a cyclist would leave the path at any point where there was a reasonably flat verge, whether to avoid pedestrians or other cyclists or for any other reason was clearly foreseeable. The possibility that a cyclist might at some point lose control of his or her bicycle and suffer an injury, including by colliding with the bollard, was also foreseeable.

11. [30]

    The Council submitted that the risk of a person colliding with the bollard or “being at risk of doing so, needing to take evasive action at the last minute to avoid colliding with it” and falling off the bicycle, was insignificant and “had a vanishingly small likelihood of happening”. [12] However, as the submissions immediately continued, “[r]easonable care in response to that risk does not require removal of the bollard or any warning beyond the visual warning its appearance gives”.

12. [31]

    As this last submission effectively conceded, assessing the significance of a risk in isolation from the context in which the exercise is undertaken is unlikely to produce a useful conclusion. That context involves the evaluative exercise as to whether a Council acting reasonably would have taken the identified precaution, an exercise which will include the nature and significance of the risk of harm. The fact that the section identifies a suite of matters to be considered does not mean that each is first to be assessed separately from the others and before undertaking the evaluative exercise.

13. [32]

    Further, in accordance with s 5B(2), it is necessary to have regard to the four factors identified as relevant to that assessment. The first factor, par (a), is “the probability that the harm would occur if care were not taken”. That factor must refer to the likelihood of the harm eventuating, noting that “the harm” may either refer to that of which generically a risk exists, or the harm which actually occurred. Given that the list is not an exclusive identification of relevant matters, both aspects should be addressed. There is also a question as to whether the phrase “if care were not taken” refers to the particular precaution which was identified by the plaintiff as the appropriate precaution.

14. [33]

    The likely seriousness of the harm which will be suffered if the risk materialises will be difficult for the Council to assess prospectively. The relevant circumstances involve a shared pathway where there are very likely to be pedestrians. Furthermore, pedestrians will usually be travelling at a slower pace than that sought to be achieved by a cyclist. Accordingly, the cyclist must be expected to moderate his or her preferred speed to accommodate the inherent risks of a shared pathway.

15. [34]

    The trial judge simply concluded that the likely seriousness of the harm could well be significant given the hard surface of the pathway and, it appears, the rock wall between the pathway and the river. [13] On a more nuanced approach, the likely seriousness of the harm will vary considerably depending upon the speed at which the cyclist is travelling and the manner in which he or she comes off the bicycle. The need to take evasive action with respect to moving pedestrians (who may be faced with cyclists coming from either direction or both and who will have little idea what the cyclists propose to do) appears to be far more significant than the risk of the cyclist taking evasive action and falling off his or her bicycle. The former risk is, however, inherent in the shared pathway and must be factored into the calculations.

16. [35]

    The plaintiff’s husband, Mr Moore, stated in his evidence that he heard the crash of his wife falling off her bicycle when he was about 100 metres in front of her. His evidence continued: [14]

17. [36]

    As Mr Moore’s evidence clearly articulated, it is not unexpected for cyclists to have falls from time to time, but he, at least, did not expect a fall to be serious. Obviously, some falls will be more serious than others. There was no evidence to support the likelihood of a serious injury resulting from the kind of fall likely to occur from the shared pathway. Indeed, there was no evidence of any other cyclist being injured where the plaintiff fell, or at any other point on the 8.25km pathway.

18. [37]

    Section 5B(2)(c) invites attention to the burden of taking precautions to avoid the risk of harm. The precaution identified in the present case was removal of the bollard. There was no dispute that the burden of taking that step was not heavy. However, if the bollard were a known risk, that was because the safety audit report of the pathway identified it as such. As discussed above, the function of s 5C(a) is to identify the relevant burden as not limited to that activity but to precautions to avoid “similar risks of harm” for which the Council may be responsible. The evidence revealed 46 similar risks identified by an audit of the pathway, and “thousands” of customer maintenance requests annually.

19. [38]

    While the burden, in those terms, could not be accurately assessed, it was not the “minimal cost” of removing the bollard, [15] which the trial judge said would take 3hrs 20mins, based on the worksheet for removing the other bollard in 2016. [16] While the judge referred to the exercise required by s 5C(a), he did so in addressing the plaintiff’s submissions; [17] he did not in fact reach a conclusion as to the extent of the burden, although he treated the “similar risks” primarily as those on the pathway identified in the audit as “high risk” of which there were 11. [18] Due perhaps to the reliance placed by the Council on what it identified as a challenge to its allocation of financial resources prohibited by s 42 of the Civil Liability Act, the judge then referred to the “medium risk” matters identified in the audit report as being “precisely if not more informedly of the same nature as the CRM reports, demonstrating an allocation of resources by the council to address the very matters the subject of the audit report.” [19]

20. [39]

    While it may be assumed that the burden, assessed in accordance with s 5C(a), was not insignificant, no reference was made to this assessment in the course of the appeal and it may be put to one side.

21. [40]

    The real issue was whether the precaution of removing the bollard should have been taken. A critical aspect of that issue involved consideration of the “social utility” of the activity which created the risk. That involves, in the present circumstance, an assessment of the function and purpose of the bollard, if any.

22. [41]

    The bollards were installed in 1999; [20] one was removed in December 2016 after a “customer request” described in the Council’s record in the following terms:

23. [42]

    The bollard was not in fact replaced, but the piece of metal was removed and the path restored. It was not entirely clear from Mr Busmanis’ evidence why the second bollard was not replaced. Mr Busmanis was asked: [21]

24. [43]

    The following exchange took place in the course of cross-examination, [22] after Mr Busmanis stated that it was not his decision not to replace the bollard which had been removed:

25. [44]

    It was suggested to Mr Busmanis that a single bollard would not stop vehicles obtaining access to the North Wall, which he accepted. The cross-examination continued: [23]

26. [45]

    The trial judge considered that Mr Busmanis had a potential conflict of interest because it had been his responsibility to maintain the pathway in the appropriate state. [24] He stated:

27. [46]

    The “objective” evidence which the trial judge preferred amounted to five words in the audit report to the effect that one bollard “is unlikely to slow cyclists”.

28. [47]

    The judge stated that “this decision not to replace the initial bollard does not make sense because the audit identifies that it is unlikely to slow cyclists”. [25] Later in his reasons, the judge said:

Determination of appeal

1. [48]

   As this Court held in Council of the City of Greater Taree v Wells, [26] a low-slung chain is not a safe method of obstructing vehicular entry onto a pathway shared by cyclists and pedestrians: the safe option was to place a bollard in the pathway. [27] Eleven years before that judgment, the Council had in fact adopted that course by placing two brightly coloured bollards, one on either side of the pathway. The social utility of the two bollards was not in dispute. They had two primary functions, one being to impede vehicular access and the other being to slow cyclists down. There was no evidence that between 1999 and 2016 there had been any incident with respect to the bollards.

2. [49]

   In 2016, it appears that one bollard was damaged, to the extent of being removed, leaving a dangerous metal protrusion in the footpath. How that occurred is not known, but it cannot have been caused by a cyclist colliding with it. What is known is that the Council removed the hazard immediately it was notified about it.

3. [50]

   A Council officer recommended the replacement of the bollard, but that did not happen. Why it did not happen is not known. The case for the plaintiff at trial was that if the bollard which had been removed was not replaced, the Council’s duty of care to users of the pathway required that it remove the remaining bollard. That duty must have arisen in 2016. For four years, the remaining bollard was in place without known incidents. It would not have been effective to prevent vehicular entry, but the fact that it remained an obstacle for cyclists implied that it may well have continued to serve some limited function in dissuading cyclists from travelling too fast.

4. [51]

   The final passage in the reasoning of the trial judge set out above found that the Council was in breach of its duty to cyclists by leaving the single bollard in place. That conclusion is not self-evidently logical: it requires further consideration.

5. [52]

   There are several problems with the finding. The first is that Mr Busmanis did not change his evidence under cross-examination: when first taken to the audit report and photograph 017, he described the combination of the regulatory signage and the bollard as constituting notification of a change of characteristic, in the passage set out at [15] above.

6. [53]

   Secondly, there is an inherent inconsistency between treating the bollard as “a danger” and refusing to identify it as a legitimate obstacle or “traffic calming device” of the kind which may well encourage cyclists to slow down. Whereas it is understandable that two bollards may have a greater deterrent effect on cyclists, it does not follow that one bollard will have no significant effect on cyclists. If one bollard is a hazard, it must also be an obstacle which may deter speeding cyclists.

7. [54]

   Thirdly, the question is not whether a single bollard serves one purpose, two purposes, or none, but whether the responsible officer of Council was acting reasonably in not removing the single bollard.

8. [55]

   Fourthly, the judge appeared to accept the unreasoned statement as to the lack of effect on cyclists contained in the audit report as simply correct, and the contrary evidence of Mr Busmanis, explored in his oral testimony, both in examination and cross-examination, as incorrect. There is no apparent basis for according the audit report such weight. Although it is true that the Council did not seek to challenge the views of its consultants, as with the two expert reports obtained by the parties, opinions were expressed without any apparent expertise and certainly without reliance upon disclosed sources. Such “expert” evidence should not have been accorded significant weight. The Council did not act unreasonably in taking the view that a single bollard continued to serve some purpose. Even if it did not serve a purpose, there was no evidence that any cyclist had collided with the bollard between the date of its placement in 1999 and the trial in 2022.

9. [56]

   Finally, even on the assumption that two bollards had social utility, but one bollard did not, it did not follow that one bollard constituted an unreasonable “hazard” and required removal in the exercise of taking reasonable care for the safety of cyclists using the pathway. The suggestion that two bollards would be more visible than one was both speculative and confusing. If one bollard is obscured but the other not, why does the rider infer the presence of an unseen object?

10. [57]

    In my view, the plaintiff did not establish that the Council had failed to take reasonable care for her safety in failing to remove the bollard at some point in time between 2016 and 2020. A shared pathway contains many hazards for cyclists, and especially avoiding pedestrians and other cyclists. The photographs of the track near the bollard demonstrate that three pedestrians abreast would block the track. They would also limit the visibility of what might lie ahead. Further, it is self-evident that a cyclist must expect indecision on the part of a pedestrian, especially when the cyclist is approaching pedestrians from behind and must ring a bell to draw attention to her presence.

11. [58]

    In the absence of a finding as to the liability of the Council, no purpose is served by addressing the question of contributory negligence on the part of the plaintiff. It does not follow from the fact that the Council was not liable that the plaintiff failed to take reasonable care for her own safety. The trial judge did not so find and there is no reason to interfere with that conclusion. Accidents frequently happen where no-one has failed to take reasonable care.

12. [59]

    In these circumstances, the plaintiff not having established that the Council, by leaving the single bollard in place on the pathway, failed to take reasonable care for her safety, the appeal must be upheld and the judgment in the District Court set aside.

13. [60]

    The Court should make the following orders:

    1. (1)

       Allow the appeal and set aside the orders of the District Court entered on 15 December 2022.

    2. (2)

       In place thereof:

    3. (3)

       Order that the respondent pay the appellant’s costs of the appeal.

    4. (4)

       Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).