Ballina Shire Council v Moore

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ballina Shire Council v Moore [2023] NSWCA 155

Hearing dates:

22 June 2023

Date of orders:

6 July 2023

Decision date:

06 July 2023

Before:

Ward P at [1];
Mitchelmore JA at [2];
Basten AJA at [3]

Decision:

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

(2)   In place thereof:

   (a)   dismiss the plaintiff’s amended statement of claim filed on 10 November 2022, and

   (b)   order that the plaintiff pay the defendant’s costs of the trial.

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

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

Catchwords:

TORTS – negligence – breach of duty – public authority – responsibility for care and management of shared pathway – identifying risk of harm – whether risk not insignificant - duty to pedestrians and cyclists – fall by cyclist in avoiding bollard – precaution of removing remaining bollard of pair – purpose of bollard to create obstacle – whether single bollard had social utility – burden of precautions to avoid similar risks – whether reasonable authority would have taken precaution of removing bollard

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5F, 5G

Cases Cited:

Council of the City of Greater Taree v Wells [2010] NSWCA 147

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11

Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62

Category:

Principal judgment

Parties:

Ballina Shire Council (Appellant)
Diane Margaret Moore (Respondent)

Representation:

Counsel:
R Sheldon SC / D Hanna (Appellant)
J Sexton SC / G Hampson (Respondent)

Solicitors:
Mills Oakley (Appellant)
Tony Love Lawyers (Respondent)

File Number(s):

2022/00383376

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2022] NSWDC 691

Date of Decision:

14 December 2022

Before:

Priestley SC, DCJ

File Number(s):

2022/00076743

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent (Ms Moore) brought a claim against the appellant, Ballina Shire Council, for breach of its duty of care in failing to remove a single remaining bollard from a shared pathway used by both pedestrians and cyclists. Ms Moore was riding an electric bicycle along the pathway that runs along the north bank of the Richmond River at Ballina. Ms Moore attempted to overtake two pedestrians, who moved left after hearing her ring the bicycle bell, and as she manoeuvred to the right side of the pathway, she noticed a metal bollard about 20cm from the edge of the path. By steering right Ms Moore avoided the pedestrians and the bollard but veered off the path and so steered back to the left, at which time she lost control of the bicycle, fell off and injured her hip.

On 17 March 2022 Ms Moore commenced proceedings in the District Court at Lismore alleging that the…