Collins v Clarence Valley Council

[2015] NSWCA 263

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Collins v Clarence Valley Council [2015] NSWCA 263
Hearing dates:	6 August 2014; final submissions 11 August 2014
Date of orders:	03 September 2015
Decision date:	03 September 2015
Before:	McColl JA at [1]; Macfarlan JA at [193]; Emmett JA at [200]
Decision:	Appeal dismissed with costs.
Catchwords:	TORTS – negligence – duty of care – public authority –breach of duty – where plaintiff cyclist seriously injured when she fell over low guard rails of wooden bridge after the front wheel of her bicycle became stuck in a gap between the planks of the bridge – whether primary judge correctly identified risk of harm for the purposes of s 5B, Civil Liability Act 2002 (NSW) TORTS – negligence – duty of care – whether risk of harm that materialised an “obvious risk” within Civil Liability Act 2002 (NSW), s 5F(1) such that public authority did not owe plaintiff duty of care to warn of it –whether public authority required to establish plaintiff voluntarily assumed obvious risk before Civil Liability Act 2002 (NSW), s 5H applied TORTS – negligence – whether erection of warning sign involved exercise of a “special statutory power” for purposes of Civil Liability Act 2002 (NSW), s 43A TORTS – negligence – breach of duty – standard of liability – Civil Liability Act 2002 (NSW), s 43A – whether failure to erect sign warning cyclists of danger bridge posed an omission no public authority could properly consider a reasonable exercise of its power TORTS – negligence – breach of duty – whether public authority had actual knowledge of risk bridge posed to cyclists TORTS – negligence – breach of duty – s 42(b), CLA –whether plaintiff’s contention public authority breached duty of care in not taking other precautions in relation to the bridge surface a challenge to public authority’s general allocation of resources
Legislation Cited:	Civil Liability Act 2002 (NSW) Roads Act 1993 (NSW) Transport Administration Act 1988 (NSW)
Cases Cited:	Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128 Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; (2010) MVR 80 Angel v Hawkesbury City Council [2008] NSWCA 130 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223; [1947] 2 All ER 680 Baden Cranes Pty Ltd v Smith [2013] NSWCA 136 Benic v State of New South Wales [2010] NSWSC 1039 Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969 Bolton v Stone [1951] UKHL 2; [1951] AC 850 Botany Bay City Council v Latham [2013] NSWCA 363; (2013) 197 LGERA 211 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Colavon Pty v Bellingen Shire Council [2008] NSWCA 355; (2008) MVR 549 Collins v Clarence Valley Council (No 4) [2013] NSWSC 1735 Council of the City of Liverpool v Turano [2008] NSWCA 270; (2008) 164 LGERA 16 Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 88 NSWLR 10 Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 Garzo v Liverpool Campbelltown Christian School [2012] NSWCA 151 Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482; (2013) 86 NSWLR 191 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101; (2006) Aust Torts Reports ¶81-860 Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep ¶81-952 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Laoulach v Ibrahim [2011] NSWCA 402 Leichhardt Council v Serratore [2005] NSWCA 406 Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240 O’Donnell v Reichard [1975] VR 916 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; (2015) 320 ALR 232 Rickard v Allianz Australia Insurance Ltd [2009] NSWSC 1115; (2009) 54 MVR 214 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 Rockdale City Council v Simmons [2015] NSWCA 102; (2015) 207 LGERA 285 Shaw v Thomas [2010] NSWCA 169 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Shoalhaven City Council v Pender [2013] NSWCA 210 Streller v Albury City Council [2013] NSWCA 348 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wyong Shire Council v Vairy [2004] NSWCA 247; (2004) Aust Torts Reports ¶81-754
Category:	Principal judgment
Parties:	Ann Collins (Appellant) Clarence Valley Council (Respondent)
Representation:	Counsel: CT Barry QC and M Tanevski (Appellant) R Sheldon SC (Respondent) Solicitors: Johnston Vaughan Solicitors (Appellant) Mills Oakley Lawyers (Respondent)
File Number(s):	CA 2013/351588
Publication restriction:	No
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2013] NSWSC 1682 Date of Decision: 15 November 2013 Before: Beech-Jones J File Number(s): SC 2010/326308

HEADNOTE

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

The appellant, Dr Ann Collins, was injured 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 her bicycle 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 deck of the bridge was composed of longitudinal wooden planks that had been spray sealed with bitumen. Gaps of varying sizes existed between the longitudinal planks along the length of the bridge. In addition, some of the planks were degraded and had holes in them.

Before she rode onto the bridge, the appellant observed that it was composed of wooden planks. In order to avoid getting her wheels caught or jammed in the gaps between them, she decided to ride over them at an angle. As the appellant neared the end of the bridge, at a time when she was near the bridge railing and looking ahead instead of down, her front wheel became caught in a gap between the planks. This caused the bicycle to stop suddenly, leading her to fall over the low guard rails of the bridge into a rocky ravine below, with the bicycle still attached to her feet. She was seriously injured.

The appellant sued the Council for negligence, claiming it had breached its duty of care to her by, in essence, failing to eliminate or minimise the risks the bridge posed to cyclists by repairing the bridge, erecting a sign warning cyclists of the dangers inherent in the state of the bridge, undertaking an adequate inspection or installing higher guard rails.

In the Supreme Court, Beech-Jones J found for the Council, holding 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 the appellant a duty of care to warn of that risk by the erection of a warning sign (CLA, s 5H). His Honour also found that remedial work to the bridge, that 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.

The appellant appealed against his Honour’s decision.

The following issues arose on appeal:

(i) whether the primary judge erred in his identification of the risk of harm for the purposes of CLA, s 5B;

(ii) whether the primary judge erred in finding that the risk of harm was an “obvious risk” within the meaning of CLA, s 5F;

(iii) whether the Council was required to establish that the appellant voluntarily assumed the obvious risk identified by the primary judge before CLA, s 5H applied;

(iv) whether erection of a warning sign involved the exercise of a “special statutory power” for the purposes of CLA, s43A;

(v) whether failure to erect a sign warning cyclists of the risk the bridge posed was an omission no public authority could properly consider a reasonable exercise of its power within the meaning of CLA, s 43A(3);

(vi) For the purposes of CLA, s 45 whether the Council had actual knowledge of the particular risk the materialisation of which resulted in the appellant’s injuries;

(vii) whether the appellant’s contention that the Council breached its duty of care in not taking other precautions in relation to the bridge surface amounted to a challenge to the Council’s “general allocation of … resources” which was impermissible by reason of CLA, s 42(b).

Held, by McColl JA, dismissing the appeal:

As to issue (i) (Macfarlan and Emmett JJA agreeing)

(1)   The primary judge did not err in identifying the risk of harm prospectively, by reference to the defective condition of the bridge, rather than by reference to the particular manner in which the appellant was injured by falling over the bridge (at [132] – [133]).

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330, Vairyv Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 applied

Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314, Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128, Benic v State of New South Wales [2010] NSWSC 1039, Baden CranesPty Ltd v Smith [2013] NSWCA 136 considered

As to issue (ii) (Macfarlan and Emmett JJA agreeing)

(2) The primary judge did not err in finding that the risk of harm was obvious within the meaning of CLA, s 5H having regard to the ubiquity of the gaps between the wooden planks of the bridge and the possibility of a wheel being jammed when the bicycle was near the railing (at [150]).

Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep ¶81-952; Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482; (2013) 86 NSWLR; Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394 applied

As to issue (iii) (Macfarlan and Emmett JJA agreeing)

(3) CLA, s 5H operates independently of any necessity to prove voluntary assumption of risk (at [155]).

As to issue (iv) (Macfarlan and Emmett JJA not deciding)

(4) The erection of a sign warning of the danger of the bridge involved the exercise of a special statutory power for the purposes of CLA, s 43A(2) because it would promote safe traffic movement on roads or warn bridge users of road conditions or hazards (at [172]).

Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 88 NSWLR 10; Rickard v Allianz Australia Insurance Ltd [2009] NSWSC 1115; (2009) 54 MVR 214; Rockdale City Council v Simmons [2015] NSWCA 102; (2015) 207 LGERA 285 applied

As to issue (v) (Macfarlan and Emmett JJA not deciding)

(5)   There was a class of cyclists other than that to which the appellant belonged, to whom the risk the bridge posed would not be apparent, which the Council should have considered in determining what, if any, step it should take to guard against the risk of harm the bridge posed (at [179]).

Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW; Kelly v Roads and Traffic Authority of NSW [2010] NSWCA 328; (2010) 57 MVR 80, applied

As to issue (vi) (Emmett JA agreeing, Macfarlan JA not deciding)

(6) The evidence did not establish that any person within the Council with relevant authority to carry out the necessary roadwork to eliminate the relevant risk or to consider carrying out such roadwork had actual knowledge of the particular risk that materialised (at [158] – [160]).

North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240 applied

As to issue (vii) (Macfarlan and Emmett JJA not deciding)

(7) The appellant’s contention that the Council should have taken precautions other than the erection of a warning sign amounted to an impermissible challenge to the Council’s general allocation of resources and was precluded by CLA, s 42(b) (at [182]).

**********

Judgment

Judgment

Factual Background

Legislative framework

Primary Judgment

Duty of care

Section 5H and the relevant “risk of harm”

Section 45 – non-feasance protection for roads authorities

The precautions

Section 43A

Causation and contributory negligence

Costs

Issues on Appeal

Appellant’s Submissions

Respondent’s Submissions

Notice of contention – s 43A

Notice of contention – causation

Notice of contention - contributory negligence

Notice of Contention – Appellant’s Submissions

Consideration

Identification of the “risk of harm”

Obvious risk

Assumption of risk

Section 45

Section 43A

Other precautions

Causation

Contributory negligence

Orders

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]

   1. Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682.

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. 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.

   2. Primary judgment (at [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. 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]

   3. Primary judgment (at [1]).

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

Factual Background

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]

   4. Primary judgment (at [13]).

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]

   5. Primary judgment (at [14]).

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

“[10] The bridge has a timber deck, timber kerbs and “W beam” steel guardrails. The width between the kerbs is 6.85 metres and the height of the guardrails is between 65 and 73 centimetres. The bridge deck is 37.2m long, comprises four approximately equal spans, and is made of two layers. The first is made of transverse timber planks spanning beams of timber logs supported by timber log bents at either end of the bridge. The second upper layer is made of longitudinal timber planks which are 240 to 250 millimetres wide and 75 to 80 millimetres thick.

[11] At the time of the accident, these planks were covered with spray seal bitumen, and a double white line marked the centre of the road. Some of the planks had deteriorated at the ends and were bolted down with coach screws. In addition, gaps of varying sizes existed between the longitudinal planks along the length of the bridge. A joint report was prepared by two experienced roads and traffic engineers retained by the parties, Messrs Grant Johnson and Jackson Clarke. They agreed that the existence of the gaps would have been observable to a person riding a bike at a distance of about 50 metres from the southern end and that there would have been ‘some discernibility’ of their width at about 20 to 30 metres from the southern end. This is consistent with a photograph taken 20 metres from the southern end by a private investigator retained on behalf of Dr Collins.

[12] There was no sign specifically warning of gaps in the bridge or indicating a hazard for cyclists at the time of the accident. However, there were four warning signs on the northbound approach: (1) a ‘REDUCE SPEED’ sign at about 360 metres from the southern end of the bridge, (2) a sign stating ‘BRIDGE SUBJECT TO FLOODING INDICATORS SHOW DEPTH’ at about 233 metres, (3) a ‘Narrow Bridge’ sign at 196 metres, and (4) a ‘LOW LEVEL BRIDGE’ sign at 159 metres.” (Emphasis added.)

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]

    6. Primary judgment (at [1]).

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

“8. At about 3PM on Wednesday, 9 April 2008 I was riding on the Bruxner Highway approaching the [Orara] River Bridge on my bicycle, the weather was cloudy and it was intermittently drizzling. I could see that the surface of the bridge was a wooden plank surface.

9. I knew when I saw the state of the surface of the bridge that I would have to ride across the planks at an angle to avoid getting my wheels caught in the gaps between the planks.

10. As I got closer to the bridge I looked at the end of the bridge which had a corner going to the right from my position and I knew that logging trucks used this road and I was cautious about being surprised by a timber truck coming around the bend at a high speed.

11. I rode on to the bridge and went with caution from side to side but on my side of the road to avoid being caught in the gaps in the planks forming the surface of the bridge.

12. The surface of the bridge I recall being very rough and causing a lot of vibration into the frame of my bicycle as I rode across the bridge going from side to side so my wheels did not jam.

13. As I started to get towards the end of the bridge I remember thinking that I should favour the left hand side of the road in case a logging truck [came] around the corner which would put me in danger of being hit by a truck as the corner is quite blind, being almost at right angles to the direction of the bridge.

14. I made my way across to the left hand side of the bridge. When I was getting towards the end of the bridge my front wheel became caught in between the planks which formed the surface of the roads way [sic, as in original] and I fell to the left. I could not stop myself from going over off the bridge because there was not a sufficiently high railing which I could grab onto from where my bike wheel was caught in between the gaps in the planks.” (Emphasis added.) [7]

7. Primary judgment (at [16]).

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

“The appellant] stated that she was ‘pretty close’ to the end of the bridge, at an angle and towards the left-hand side of the road when the accident occurred. She described the accident in the following terms:

‘The bike stopped very suddenly … I don’t know what it went into because I was looking ahead and not looking down and then I fell, fell to my left and I hit the side of the bridge and because it was so low, I just toppled over. It was like I somersaulted over the side. I’m not exactly sure when the bike actually left my feet and I tried to grab for the railing and the side of the bridge but I just couldn’t hold on and then I just remember letting go and just going crash, crash, crash till I stopped on a rock further down.’” [8] (Emphasis added)

8. Primary judgment (at [17]).

Legislative framework

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

14. Section 5B, CLA provides:

“General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

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).

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

“5F Meaning of ‘obvious risk’

(1) For the purposes of this Division, 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.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks

(1) In proceedings relating to liability for negligence, 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.

(2) For the purposes of this section, 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 the occurrence of the risk.

5H No proactive duty to warn of obvious risk

(1) A person (“the defendant”) does not owe a duty of care to another person (“the plaintiff”) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.”

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

“42   Principles concerning resources, responsibilities etc of public or other authorities

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

43A   Proceedings against public or other authorities for the exercise of special statutory powers

(1) This section applies for proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A ‘special statutory power’ is a power:

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority 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.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

45   Special non-feasance protection for roads authorities

(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate:

(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

(3) In this section:

‘carry out road work’ means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.

‘roads authority’ has the same meaning as in the Roads Act 1993.”

Primary Judgment

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

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]

    9. CLA, s 5B(1)(c).

    10. Primary judgment (at [4]); CLA, s 43A.

20. The second conundrum was that:

“[7] To some the success of the Council in defending Dr Collins’ claim may appear counter-intuitive. While riding her bike in a proper and lawful manner she encountered a wooden bridge on a public road in a poor state of repair. Dr Collins responded to the risk that she perceived was posed by the bridge in a reasonable manner, namely by weaving her way across her side lane of the bridge to avoid her wheels becoming trapped. Yet the accident still happened. The Council is able to avoid liability primarily because of its own ignorance of the risk posed by the structure whose responsibility it was to maintain and the limits on its own resources. Its ignorance of the risk does not reflect well upon its own practices. Whether the limits on its resources exist because of its own inefficiencies or because of factors beyond its control cannot be inquired into. However all of these matters reflect policy choices made by the Parliament in enacting the CLA. Whether those choices reflect a sensible approach to loss distribution that encourages efficient and safe practices of public bodies is not a matter for the Court to assess.”

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]

    11. Primary judgment (at [2]).

22. As the primary judge described it:

“[Counsel for the appellant] identified four categories of ‘precautions’ which the Council had failed to implement which he said amounted to a breach of the duty of care that was owed (CLA, s 5B). Those four categories of precautions broadly corresponded with the particulars of negligence and involved (i) carrying out roadworks or repairs to the bridges to eliminate ‘dangerous gaps and/or defects’ in the roadway surfaces; (ii) undertaking an adequate inspection; (iii) failing to warn Dr Collins by ‘the erection of a warning sign of the type that was subsequently erected’; and (iv) the installation of higher guardrails or fencing on the bridge.” [12]

12. Primary judgment (at [97]).

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]

    13. See primary judgment (at [19] – [21]).

24. His Honour concluded that:

“The clear meaning conveyed by paragraphs 8 to 10 of her affidavit was that she 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 (and that is why she rode across the bridge at an angle). I am satisfied that that was the case ... It follows that I reject so much of Dr Collins’ oral evidence that asserts that she only saw ‘cracks’ between the planks prior to entering the bridge or that sought to confine paragraph 9 of her affidavit to an observation that was only made once she was on the bridge.” (Emphasis added.) [14]

14. Primary judgment (at [21]); see also [11] above where the relevant paragraphs of the affidavit are reproduced. The appellant does not challenge this finding.

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

“She 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.” [15]

15. Primary judgment (at [22]).

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]

    16. Primary judgment (at [35]).

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]

    17. Primary judgment (at [36]).

    18. Primary judgment (at [37]).

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]

    19. Primary judgment (at [38]).

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]

    20. Primary judgment (at [39]).

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

“Gaps between planks due to timber movement and gaps where short lengths of the ends or the corners of timbers have broken away’ and estimated their width … [on] the left hand side of the bridge ‘but more on the northern end’, the gaps between the planks were said to be around 12 to 17mm, 20 to 30mm, 30 to 35mm, 30 to 40mm, and 30mm respectively. Of these gaps, most were relatively short but the second was of considerable length.” [21]

21. Primary judgment (at [40]).

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]

    22. Primary judgment (at [41]).

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:

“Dr Collins’ wheel became entrapped in a gap wider than 20mm and that gaps of this kind existed on the left hand side of the northern end of the bridge, at the site where she became stuck near the guardrail. Furthermore, in light of my finding that Dr Collins was travelling across the bridge very slowly (see [19] and [27]), I find that gap only needed to be relatively short for the wheel to become wedged.” [23]

23. Primary judgment (at [42]). Mr Barry accepted during argument that this suggested his Honour found the wheel was parallel to the gap, rather than crossing it. Such a finding would reflect Ms Kaadal’s evidence that she had been observing the appellant immediately before the incident and saw her “turn the bike so that it was facing parallel to the gaps in the surface of the bridge … for one or two bike lengths”.

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]

    24. Primary judgment (at [57]).

    25. Primary judgment (at [58]).

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]

    26. Primary judgment (at [59]).

    27. Primary judgment (at [60]).

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]

    28. See primary judgment (at [61] – [63]).

33. 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]

    29. Primary judgment (at [64 – [65]).

34. 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”.

35. 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]

    30. Primary judgment (at [66] – [67]).

    31. Primary judgment (at [69] – [70]; [171]).

Duty of care

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]

    32. CLA, s 42.

    33. CLA, s 5H.

    34. CLA, s 43A.

    35. CLA, s 45.

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]

    36. Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 (“Brodie”) (at [150]) per Gaudron, McHugh and Gummow JJ.

    37. Primary judgment (at [108]).

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.

    38. Brodie (at [150]).

    39. Brodie (at [150]).

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]

    40. Primary judgment (at [107]).

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”

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]

    41. Primary judgment (at [111] – [112]).

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]

    42. Primary judgment (at [113]) referring to Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (“Dederer”) (at [59]) per Gummow J (Heydon J agreeing) and Garzo v Liverpool Campbelltown Christian School [2012] NSWCA 151 (“Garzo”) (at [24]) per Meagher JA.

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]

    43. Primary judgment (at [115] – [117]).

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]

    44. Primary judgment (at [117]).

    45. Primary judgment (at [117]).

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]

    46. Primary judgment (at [118]).

49. In this respect, his Honour concluded:

“[119] I consider that the relevant risk of harm in this case was one that would have been obvious to a reasonable person in Dr Collins’ position at a point no later than the last ten metres before her entry onto the bridge. Such a reasonable person would be an adult cyclist like her of at least moderate ability who had successfully negotiated their bicycle over a reasonable distance to that point. Such a person would also be aware of the potential risks associated with wooden bridges, but would not have been warned about this specific risk. They would have been involved in an organised ride but not engaged in a race. From a distance of no less than forty metres from the bridge they would have seen that they were approaching a wooden bridge, which would have raised some degree of caution. Just prior to the bridge the gaps and their potential to trap the wheels of a bicycle would have become apparent.

[120] … For the purposes of the application of s 5F to this accident an awareness at the start of the bridge is sufficient, given that Dr Collins’ accident occurred approximately three quarters of the way across it and she was travelling slowly.

[121] It follows that s 5H(1) is engaged so that the duty of care owed by the Council to Dr Collins does not extend to warning her of the risk that materialised. For the sake of completeness it also follows that in light of the finding at [21] Dr Collins is not able to rebut the presumption created by s 5G(1).” [47] (Emphasis added)

47. The finding at [21] was 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”.

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]

    48. Primary judgment (at [138]).

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.

    49. Primary judgment (at [122] – [128]).

Section 45 – non-feasance protection for roads authorities

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]

    50. Primary judgment (at [131]).

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

    51. Primary judgment (at [129]).

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.

    52. Primary judgment (at [136] – [139]).

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]

    53. Colavon Pty v Bellingen Shire Council [2008] NSWCA 355; (2008) MVR 549 (at [101] – [106]) per Campbell JA (Beazley JA and Handley AJA agreeing).

    54. Primary judgment (at [131]).

    55. Primary judgment (at [202]).

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]

    56. Primary judgment (at [144]), referring to the risk identified in the primary judgment at [117).

    57. Primary judgment (at [142]).

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]

    58. North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240 (at [157]) (“Roman”) per Basten JA (Bryson JA agreeing); McColl JA dissenting (at [60] – [61]); primary judgment (at [145]).

    59. Primary judgment (at [148]).

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]

    60. Primary judgment (at [148]).

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]

    61. Primary judgment (at [149]).

    62. Primary judgment (at [150] – [152).

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]

    63. Primary judgment (at [153]).

    64. Leichhardt Council v Serratore [2005] NSWCA 406 (at [15]) per Giles JA (Hodgson and Ipp JJA agreeing).

    65. Primary judgment (at [153]).

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]

    66. Primary judgment (at [155]).

The precautions

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]

    67. Primary judgment (at [156]).

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]

    68. Primary judgment (at [71] – [96]).

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]

    69. Primary judgment (at [164] – [170]).

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]

    70. Primary judgment (at [171] – [174]).

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]

    71. Primary judgment (at [175] – [177]).

Section 43A

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]

    72. The defence was pleaded in general terms as relating to the particulars of negligence pleaded against the Council: Red 10 [12.10]. There were 24 such particulars. However by the time counsel addressed the primary judge at the close of evidence, the defence appeared to be confined to the erection of the warning sign.

    73. Primary judgment (at [202]); applying Rickard v Allianz Australia Insurance Ltd [2009] NSWSC 1115; (2009) 54 MVR 214 (“Rickard”) (at [112]), a finding his Honour observed was not challenged on appeal: see Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; (2010) MVR 80.

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]

    74. Primary judgment (at [206]).

69. His Honour found:

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

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]

   75. Primary judgment (at [157]).

   76. Primary judgment (at [158]).

   77. Primary judgment (at [186] – [196]).

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

“[188]   Messrs Clark and Johnston identified the reason for the need for a sign as being that all timber bridges should have warning signs because gaps will inevitably develop in between the planks, there is often deterioration between inspection visits conducted by the authorities responsible for maintaining them, and many people ‘aren't particularly aware of them or the fact that they may have different surfaces than concrete bridges’ as they are becoming less and less popular. I accept that is the case.

[189]   I have already concluded that the risk of there being gaps in the bridge which could cause wheels to become stuck was an ‘obvious risk’ to a reasonable person in the position of Dr Collins. However this does not mean that a sign was not warranted. One category of rider to whom the risk might not have been obvious were riders from cycling clubs conducting a race who might be travelling across the bridge at a faster speed than Dr Collins was. In such cases the existence of potentially dangerous gaps might not be apparent or obvious. Further, if the sign did advise riders to dismount, it may convey something about the extent of the risk that is not apparent from simply observing the bridge on approach.” (Emphasis added.)

71. Accordingly, his Honour held:

“Objectively considered there was no rational reason to confine Mr Bailey’s inspection in February 2008 to the risk posed by motor vehicles. Why exclude motorcycles and bicycles given that they are common on roads? Even a cursory inspection of the bridge as at that time would have revealed that the bridge was a potential danger for cyclists. Further, as at March 2008 the Bluff Bridge was ranked eleventh most in need of replacement and six of the bridges ahead were scheduled (and funded) for a complete rebuild. The local cycle club had nominated the area of road including the Bluff Bridge as its preferred area for at least its annual race and possibly monthly outings. While a sign was hardly a perfect response it 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. If the Council did not propose to take some step to repair or rebuild the bridge then it was unreasonable in the sense used in s 43A(3) for it not to have at least erected a sign as it did subsequently. (I make the same finding in relation to the inspection conducted by Mr Bailey for the reasons noted at [197]. However, as noted, this conclusion does not advance the matter beyond the conclusion that the Council should have placed a sign at the southern entrance to the Bluff Bridge.)” [78]

78. Primary judgment (at [206]).

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.

    79. Primary judgment (at [207]). It should be noted in this respect that the class of people to whom the primary judge concluded the Council was negligent in failing to erect the sign did not include that class of which the appellant was a member: primary judgment (at [19]).

Causation and contributory negligence

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.

    80. Primary judgment (at [208]).

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]

    81. Primary judgment (at [209]).

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

Costs

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]

    82. UCPR 42.15A(2).

    83. Collins v Clarence Valley Council (No 4) [2013] NSWSC 1735.

Issues on Appeal

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).

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.

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.

Appellant’s Submissions

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.

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]

    84. He referred to a photograph at Blue 2/592. The same photograph, albeit showing what appeared to be the entirety of a man’s forearm inserted in the gap between the wooden planks appeared at Blue 2/591. There was no photograph which showed where the gap depicted in these photographs was relative to the side rails.

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.

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.

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.

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]

    85. Primary judgment (at [22]).

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.

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]

    86. Primary judgment (at [22]).

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]

    87. Primary judgment (at [4], [196]).

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]

    88. It is not apparent that the appellant raised this point at trial, but the Council did not object to it being raised in this Court.

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.

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.

    89. Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

    90. Primary judgment (at [188]).

    91. Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969 (at 970).

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]

    92. See primary judgment (at [85] – [94]) and [95] – [96]).

    93. Primary judgment (at [82]).

    94. Primary judgment (at [81]).

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.

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.

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.

    95. Primary judgment (at [172]).

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.

Respondent’s Submissions

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.

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.

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.

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.

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]

     96. Primary judgment (at [42]).

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]

     97. CLA, s 5G(2).

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.

169. 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]

     170. Rockdale City Council v Simmons [2015] NSWCA 102; (2015) 207 LGERA 285 (at [101]) (Beazley P, McColl and Barrett JJA).

     171. Rockdale City Council v Simmons (at [95] – [96]).

170. 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.

     172. Section 45E(c), Transport Act.

171. 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]

     173. Rockdale City Council v Simmons (at [100]).

172. 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”.

173. 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.

174. 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]

     174. Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW; Kelly v Roads and Traffic Authority of NSW [2010] NSWCA 328; (2010) 57 MVR 80 (“Allianz Australia Insurance”) (at [74]) per Giles JA (McColl JA and Sackville AJA agreeing), referring to Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223; [1947] 2 All ER 680.

     175. Allianz Australia Insurance (at [78]); Curtis (at [257] – [260], [262]).

175. 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]

     176. Allianz Australia Insurance (at [79]).

     177. Curtis (at [277] – [279]) per Basten JA (Bathurst CJ and Beazley JA agreeing).

176. 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]

     178. Primary judgment (at [206]).

177. 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.

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

Other precautions

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.

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.

     179. Cf CLA, s 42(b).

     180. The appellant did not rely on the repair as giving rise to or affecting the Council’s liability in respect of the risk nor as constituting an admission of liability in connection with the risk, a course which would be precluded by CLA, s 5C(c), but, rather, as indicating what the Council could have done beforehand.

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

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.

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]

     181. It should also be noted that during the hearing the primary judge ruled that it was outside the appellant’s pleaded case to challenge the priority that the bridge was given in the process of seeking funds under a particular funding partnership: primary judgment (at [87]).

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.

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

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.

     182. CLA, s 5R(1).

     183. CLA, s 5R(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]

     184. Black 51.01 – 51.08; 51. 48.

     185. See [32] above.

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.

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

Orders

192. I would dismiss the appeal with costs.

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

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

192. 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.

193. 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.

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Endnotes

Decision last updated: 03 September 2015