Ballina Shire Council v Moore

The appeal concerned a claim in negligence brought by a cyclist, Mr Moore, against Ballina Shire Council, the authority responsible for the care and management of a shared pathway. Mr Moore sustained injuries when he fell from his bicycle while attempting to avoid a bollard on the pathway. The central dispute revolved around whether the Council had breached its duty of care to users of the pathway by failing to remove the bollard, which Mr Moore alleged presented an unreasonable risk of harm.

The Court of Appeal was required to determine whether the risk of harm posed by the bollard was "not insignificant," a threshold established by the Civil Liability Act 2002 (NSW). This involved assessing whether the Council had identified a foreseeable risk of harm to pedestrians and cyclists and, if so, whether it had taken reasonable precautions to avoid that risk. Specifically, the court considered the social utility of the remaining bollard and the burden of taking precautions, such as its removal, to avoid similar risks.

The Court of Appeal found that the District Court had erred in its assessment of the risk. It reasoned that the purpose of the bollard was to create an obstacle, and while the risk of harm from such an obstacle might be foreseeable, the specific risk of a cyclist falling in the manner described by Mr Moore was not established as "not insignificant." The court concluded that a reasonable authority would not have taken the precaution of removing the bollard, as its social utility in delineating the pathway outweighed the low probability of the specific type of accident occurring. Consequently, the appeal was allowed, the District Court's orders were set aside, and Mr Moore's claim was dismissed.