Council of the City of Greater Taree v Wells

[2010] NSWCA 147

Reported Decision: 174 LGERA 208[2010] Aust Torts Reports 82-063[2010] ALMD 6778[2010] ALMD 6777[2010] ALMD 6776

New South Wales

Court of Appeal

CITATION:	Council of the City of Greater Taree v Wells [2010] NSWCA 147
HEARING DATE(S):	10 February 2010
JUDGMENT DATE:	1 July 2010
JUDGMENT OF:	Beazley JA at 1; McColl JA at 103; Basten JA at 104
DECISION:	The appeal is dismissed with costs.
CATCHWORDS:	TORTS – duty of care – duty of council to users of public pathway – whether appellant owed duty of care in circumstances where it installed an obstruction along a public pathway - TORTS – duty of care – scope of duty – scope of duty to be determined objectively - TORTS – breach of duty of care – Civil Liability Act 2002, s 5B – principles in Wyong Shire Council v Shirt [1980] HCA 12: (1980) 146 CLR 40 – whether the Civil Liability Act 2002, s 5B substantially restates the principles at common law - TORTS – contributory negligence – Civil Liability Act 2002, Division 8 – determined objectively - TORTS – obvious risk – Civil Liability Act 2002, Division 4, ss 5F-I – whether installation of a chain across a public pathway constitutes an obvious risk - PRACTICE & PROCEDURE – Civil Liability Act 2002 – actions to be determined by reference to the Civil Liability Act 2002
LEGISLATION CITED:	Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1965 Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136 Carey v Lake Macquarie City Council [2007] NSWCA 4 at [93]; (2007) Aust Torts Reports 81-874 Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 Dessent v Commonwealth of Australia (1977) 13 ALR 437 Drinkwater v Howarth [2006] NSWCA 222 Fallas v Mourlas [2006] NSWCA 32 Folkes v Calabaro & Ors [2004] NSWCA 191 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 Indermauer v Dames (1866) LR 1 CP 274 at 288 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263 Romeo v Conservation Commission (NT) [1998] HCA 5; (1998) 192 CLR 431 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Warren v Coombes [1979] HCA 9; 142 CLR 531 Waverley Council v Ferreira [2005] NSWCA 418 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
TEXTS CITED:	Review of the Law of Negligence Final Report (2002)
PARTIES:	The Council of the City of Greater Taree (Appellant) Daryl George Wells (Respondent)
FILE NUMBER(S):	CA 2009/298234
COUNSEL:	S E McCarthy (Appellant) D R Toomey (Respondent)
SOLICITORS:	DLA Phillips Fox (Appellant) Stacks (Taree) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 17/2008
LOWER COURT JUDICIAL OFFICER:	Charteris DCJ
LOWER COURT DATE OF DECISION:	17 April 2009

- 40 -

CA 2009/298234

BEAZLEY JA
McCOLL JA
BASTEN JA

1 July 2010

The Council of the City of Greater Taree v Daryl George Wells

Headnote

The respondent was injured whilst cycling along a pathway in Taree in circumstances where he failed to observe that a metal chain had been strung across the mouth of the pathway leading into the Queen Elizabeth Park (the park). The respondent was catapulted over the handlebars of his bicycle when the front wheel collided with the chain. He brought a claim against the appellant for damages for his injuries, which he alleged were caused by the appellant’s negligence in placing the chain across the pathway.

The trial judge, Charteris DCJ, held that the appellant owed and breached a duty of care and awarded the respondent damages in negligence in the amount of $114,402.00. The appellant appealed against his Honour’s finding of negligence and against his Honour’s award of future economic loss and future loss of superannuation, contending:

(i) That the trial judge erred in failing to engage in any analysis of the principles in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40;

(ii) That the presence of the chain across the pathway was an obvious risk;

(iii) That the respondent was contributorily negligent; and

(iv) That the respondent’s award for future economic loss was unsupportable on the evidence.

Held
Per Beazley JA (McColl and Basten JJA agreeing):

(i) The scope of a duty of care is determined prospectively, not by reference to what happened in the accident in question: [48]. The appellant, in placing diversionary obstructions along or across the pathway, had a duty to exercise reasonable care to avoid foreseeable risks of injury to users of the pathway, being persons who were taking reasonable care for their own safety: [49].

(ii) The authorities have recognised that the Civil Liability Act 2002, s 5B substantially restates the common law principles stated in Wyong v Shirt: [55]. The appellant breached its duty of care in erecting a chain that was not visible to users of the pathway until shortly before coming upon it: [63].

(iii) A chain which may not be visible to a cyclist taking reasonable care, until shortly before coming upon it, is not an obvious risk: [79].

(iv) Contributory negligence is determined objectively, taking account what the plaintiff knew or ought to have known at the time: [83]. The respondent’s speed was reasonable, the chain’s presence was unexpected and its colour made it difficult for persons taking reasonable care for their own safety to detect: [86].

(v) There was evidence that the respondent’s earning capacity was presently productive of economic loss. Accordingly, the trial judge did not err in his assessment of future economic loss: [101].

CA 2009/298234

BEAZLEY JA
McCOLL JA
BASTEN JA

1 July 2010

The Council of the City of Greater Taree v Daryl George Wells

Judgment

1 BEAZLEY JA: The respondent was injured whilst riding his bicycle in Queen Elizabeth Park, Taree (the park), on 26 November 2006. The accident occurred close to where the park meets Macquarie Street, in circumstances where the respondent failed to observe that a metal chain had been strung across the pathway leading into the park. He was catapulted over the handlebars of his bicycle when the front wheel collided with the chain. He brought a claim against the appellant for damages for his injuries, which he alleged were caused by the appellant’s negligence in placing the chain across the pathway.

2 The trial judge, Charteris DCJ, held that the appellant was negligent and awarded the respondent damages in the sum of $114,402 and rejected a claim by the appellant that the respondent was contributorily negligent for the accident.

3 The appellant has appealed against his Honour’s finding of negligence and against his Honour’s award of future economic loss and future loss of superannuation, in the sum of $83,250.

Issues on the appeal

4 Four central issues were raised on the appeal:

(1) Whether the trial judge erred in failing to engage in any analysis of the principles in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

(2) Whether the trial judge erred in finding that the appellant owed a duty of care to the respondent in circumstances where the presence of the chain across the pathway was an obvious risk: see the Civil Liability Act 2002, ss 5F, 5G, 5H and 5I.

(3) Whether the trial judge erred in failing to find that the respondent was contributorily negligent.

(4) Whether the trial judge erred in his award for future economic loss.

Background facts

5 The accident occurred on a Sunday morning at about 7.30 am, when the respondent was riding his bicycle along a pathway which followed the edge of the Manning River in central Taree. The respondent was an experienced cyclist and, on the morning of the accident, was towards the end of a 30 km ride, which he was undertaking with a companion, Gregory Single.

6 The respondent’s route immediately before the accident had taken him from Stevenson Street into River Street. He then continued in a westerly direction along a pathway that ran parallel to the Manning River. The pathway met Macquarie Street at a right angle, continued on the other side of Macquarie Street and ran through the park. The park was on the western side of Macquarie Street. The pathway continued through the park, still in a westerly direction, parallel to the Manning River. The Taree Aquatic Club is located on the banks of the Manning River at the junction of Macquarie Street and the park. It was the respondent’s intention to cross Macquarie Street and proceed onto the pathway through the park. At the time of the accident, there was no prohibition on riding bicycles in the park, including along the pathway.

7 The pathway ran downhill as it approached Macquarie Street and the respondent said that it was uneven, “so you’re bouncing as you’re coming down the hill”. He then described a “bit of a dip right at the footpath [where the path met Macquarie Street] onto the road”. He said that he braked as he got to the bottom of the hill and, when he reached Macquarie Street, he looked first to the left, to see if any vehicles were coming out of the Aquatic Club carpark and then to the right, to see whether vehicles were coming south down Macquarie Street. As there was no traffic, he proceeded across Macquarie Street, which had a bitumen surface, onto the pathway leading into the park.

8 The respondent said that new concrete had been laid at the entrance into the park. There was no dispute that, in the days prior to the accident, a chain had been strung across the pathway at the entrance, between two poles. The respondent said that he did not see the chain until he was about 10-12 feet away from it. He braked, but not in sufficient time to stop before colliding with the chain. He skidded, and the front wheel of his bike caught in the chain. He was catapulted over the handlebars, landing on his head.

9 The respondent was unable to estimate the speed that he was going at the point of collision with the chain. He agreed that his speed would have increased as he was coming down the hill. However, he said he was not travelling very fast at all and that he had “braked coming down the hill at the road there”, that is, where the footpath met the bitumen on the eastern side of Macquarie Street.

10 Mr Single, who was riding approximately 5-8 m behind the respondent estimated that as they came to the bottom of the hill and crossed Macquarie Street in front of the Aquatic Club, they were probably travelling at a speed of about 3 km per hour.

11 The respondent had cycled this particular route the previous Sunday, but there was no chain across the entrance to the park at that time. The chain had been placed across the pathway two days before the accident. Some years earlier, a chain had been in place across the entrance to prevent vehicular access into the park but had been removed in about 2000, at the request of the police. A bollard may also have been in place at some time. From about 2000, until the chain was installed on 20 November 2006, there had been no physical restriction on the entry of vehicular traffic into the park.

12 The respondent agreed in cross-examination that part of being an experienced cyclist was appreciating the environment in which the ride was taking place. An aspect of that appreciation was recognising that conditions sometimes change. For example, a place which had one appearance in the morning might have a different appearance in the afternoon. Likewise, objects present at one time may not be present at another. He agreed, by way of example, that an area might be litter-free on one occasion but an hour later the area may be covered with litter. Similarly, cars could change position. Generally, he agreed that “these are the sorts of things which when one is riding a bicycle one must be vigilant about”.

13 The respondent also agreed that if he had been riding “a bit slower” the chances were he would have “been able to stop before the chain”. It was suggested to him in cross-examination that if he had been riding with “a more defensive mindset” he would have “had a greater chance of avoiding impacting with the chain”. He responded:

“Yeah. Well … I was being careful, I looked for hazards. Okay? And then when I – I looked up the road for a hazard. I looked beside me as we were coming down for a hazard. Okay? And then when I looked through I could see a gentleman sitting in his car. I was watching him. He was reading the paper. And then I look ahead and there’s the hazard in front of me, which I could not see until I saw it at the last moment, and the hazard you could not see from the new concrete and it was a brand new galvanised chain which was the same colour as the concrete. Until you get to that point, which I wasn’t, you could – as you’re coming down the hill you’re looking ahead. Okay? And you can see there’s nothing but obviously the chain was slung low and then as I come up onto the hazard that’s when I saw it. I wasn’t looking – there wasn’t – there wasn’t anything there to say that there was a hazard there. You’ve got two grey objects together that you can’t see until at a particular time and then I braked.”

14 Mr Single did not see the chain as he was coming down the hill on the River Street footpath, although said that he, “sort of wasn’t looking in that direction at the time.” The first he saw of the chain was when the accident occurred. He said that at that time, he was about 5 m away from the chain. Mr Single estimated that at about the midpoint down the hill, they were travelling at about 10-15 km per hour.

15 Wayne Hull was employed by the appellant as a Supervisor for Parks and Reserves, a position he had held from 1995. His staff visited the park on a weekly basis and there was a period during the park’s redevelopment, between 2000 and 2002, when the park was visited almost daily. Although he initially denied having ever seen a cyclist on the pathway, Mr Hull eventually said that he had only ever seen one cyclist using the path and that was in the period following the accident. Mr Hull was unaware of any complaints either from or in respect of cyclists using the park, and as Supervisor for Parks and Reserves, any such complaint would have come to him through the appellant’s complaints and requests system.

16 Mr Hull said that there had previously been a chain across the entrance to the park from the time Mr Hull commenced employment with the appellant in 1995 until about 2000. It was removed following several requests from the police to allow them “urgent access to the park”.

17 At about the time of the accident it had come to the attention of the appellant that vehicles were again accessing the park. An instruction was given to the appellant’s staff to investigate the installation of a lockable vehicle deterrence barrier (that is, a bollard) at the eastern entrance of the park at the Macquarie Street end near the Aquatic Club. At that time, the Council’s practice was to install either a chain or a bollard if it wished to prevent vehicular access to any place under its control. The bollard was the appellant’s preferred method, because of the ease with which a chain could be cut with bolt cutters. On 24 November 2006, the Friday prior to the accident, when the appellant’s officers attended the park, they decided to install a chain, as they did not immediately have access to up-to-date plans of underground power, water and telephone services that might have been disturbed if a bollard was installed. Following the accident, the chain was removed and a bollard was installed in its place.

18 Mr Hull did not see the chain in place. When shown photographs taken on the day of the accident, he agreed that the concrete at the commencement of the pathway and the colour of the chain were similar. He also agreed that the chain, which was slung low, was more likely to be missed by “the eye of the user of the park”. He said, however, that if a chain was pulled taut, it gave a person approaching “little warning”. He said if “the scenario” such as occurred here happened with a very tight chain:

“… they’d just go straight over. With a loose chain they have the … albeit slight warning that the chain is there.” (emphasis added)

Findings of the trial judge

19 The trial judge recorded the evidence of each of the witnesses in an adjectival way. It appears that unless he made a specific finding in relation to a particular matter, his Honour accepted the evidence which he recorded. Evidence about the condition of the path leading down to Macquarie Street, the direction of travel, the gradient of the path and the speed of the respondent whilst travelling towards Macquarie Street, seem to have been accepted by his Honour. Much of that evidence was, in any event, uncontentious.

20 The critical matters upon which his Honour recorded independent findings were as follows. First, his Honour commented upon the photographs taken on the day of the accident (Exhibit C). He observed that the first photograph in Exhibit C was taken looking in a westerly direction, that is, the direction in which the respondent was travelling. His Honour noted that the photograph showed the chain strung between two poles. He said:

“… [it] gives the distinct impression that the chain is not easily discerned. Because of its colour and the background of concrete and indeed the fresh concrete in the foreground, it is my view that it is not easy for one to pick up the existence of the chain.”

His Honour stated that that would be more so if a person was further away “ than the photographer had been in taking the first photograph ”.

21 The second photograph in Exhibit C was taken looking in an easterly direction. His Honour noted that that photograph had “the poles and chain in the foreground”. His Honour remarked that in that photograph, “the chain is a little bit more easily detected”. His Honour noted that the respondent, when shown Exhibit C, said “that he did not see the chain at all as he came down the hill”. His Honour then added:

“Having had the benefit of a view of the scene, I consider it would be difficult to pick up the existence of a chain which would be unexpected. There are a number of other areas that compete for the eye’s attention. It would be very easy not to detect the existence of the chain, in my view, in travelling down that incline in the circumstances of [the respondent].”

22 The appellant does not challenge these findings, but says that they did not answer the question as to why the respondent did not see the chain until it was too late. The appellant contended that the answer to that question was plainly given in the respondent’s own evidence, but was misunderstood by the trial judge. The evidence upon which the appellant relied was that which I have set out above at [11]. In particular, the appellant relies upon the respondent’s evidence in this passage where he said he was watching the man in the car in Macquarie Street and his evidence that he “wasn’t looking”.

23 The trial judge rejected Mr Single’s evidence that at the point immediately before the collision, he and the respondent were travelling at about 3 km per hour. His Honour did not accept that as a realistic estimate of the speed of the bicycle and observed “[t]hat is a speed below walking pace”. The appellant challenges this finding.

24 Apart from the above matters, his Honour’s findings on liability and contributory negligence were contained in the following paragraphs:

“ FINDINGS ON LIABILITY

I find that [the appellant] clearly was negligent in erecting the chain between the two poles. The location of that chain was unexpected by any regular user of the park. There was an absence of any warning to users of the park of its existence. Its colour made it difficult to pick up as one approached it, particularly on a pushbike. Its presence was not obvious. Its existence was obscured having regard to the surrounding environment. I find, having regard to all of the provisions of s 5, that [the appellant] was negligent. I do not accept that the chain could be described as ‘an obvious risk’ as understood in the terms of s 5F of the Civil Liability Act . I do not consider the chain was obvious to a reasonable person in the position of [the respondent]. The eye picks up many things as one advances on a pushbike. The eye cannot just dwell upon the path ahead. I accept [the respondent] looked and did not see the chain until it was too late. I record that I am satisfied that this was not an obvious risk. The existence of the chain was very easily missed by any reasonable person. Its presence is completely unexpected and not highlighted. There was no warning event.

I have had regard to the principles of negligence in the law generally but also in regard to s 5 of the Civil Liability Act . I find that [the appellant] did owe a duty to [the respondent] and breached that duty. I note that the claim of assumption of risk or relief under s 45 is not pursued.

On the issue of contributory negligence, the onus is with [the appellant] to satisfy me that [the respondent] contributed to the circumstances that led to his injury. As I have recorded, the existence of the chain was not expected. Its colour and its positioning having regard to the surrounding area made it difficult to discern. The eye of the rider, in this case [the respondent], would look further into the park as well as into the foreground. A person in [the respondent’s] circumstances could very easily fail to detect the presence of the chain. Although it can be argued that some individuals in [the respondent’s] position may have detected its presence, many prudent riders would not have. The onus, as I have indicated, is borne by [the appellant] and has not been discharged. I reject the plea of contributory negligence. The respondent is entitled to an undiscounted verdict.”

The appellant’s challenge to the finding of negligence

25 As I have indicated, the appellant challenges the trial judge’s rejection of Mr Single’s evidence as to speed. It also complains that his Honour’s findings amount to little more than an assertion of negligence unsupported by much of the necessary factual indicia. The appellant accepts that his Honour appears to have found, inferentially at least, that the appellant had not prohibited the use of bicycles on the footpath. It was submitted, however, that this finding fell short of a finding that such recreational use should have been anticipated and that the response of the appellant in prohibiting vehicular access to the park should have accorded with the known activity of cycling. It followed on this submission that the trial judge had failed to engage in an analysis of the Wyong Council v Shirt principles, as he was required to do.

A comment about the trial judge’s reasons

26 Before dealing with the issues on the appeal, a comment needs to be made about the trial judge’s reasons. The case was conducted on the basis that the Civil Liability Act applied. On that basis, the question whether the appellant breached its duty of care fell to be determined under the Civil Liability Act.

27 At trial, there was debate between his Honour and counsel for the appellant during the course of addresses, that applied to the respondent’s claim in respect of the relevant sections of the Civil Liability Act. In particular, counsel referred to s 5F and his Honour referred to ss 5, 5B, 5C, 5D and 5H.

28 In his reasons, his Honour made only passing reference to the Act, stating, at 33, that:

“I have had regard to the principles of negligence in the law generally but also in regard to s 5 of the Civil Liability Act . I find that the council did owe a duty to [the respondent] and breached that duty.”

29 His Honour made no reference in his reasons to ss 5B and 5C, which govern the question of breach in a case to which the Act applies. Nor did he refer to s 5D, which relates to causation, although the appellant conceded that no issue as to causation within s 5D was raised at trial. His Honour referred to s 5F and found that the chain was not an obvious risk within the meaning of the section.

30 During an exchange with counsel, his Honour said:

“I will have regard to those [sections], but obvious risk is what you are asserting.

[Counsel]: It is, your Honour, yes.”

31 The Civil Liability Act is:

“An Act to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 in relation to costs in civil claims; and for other purposes.”

32 Section 5, to which his Honour referred in general terms, is a definition section. Included amongst the terms defined is “negligence”, which is defined to mean, “failure to exercise reasonable care and skill”. The Act as such does not define or delimit the circumstances in which a duty of care will arise. That remains the province of common law principles.

33 Section 5B, although headed “General principles” and contained within Pt 1A, Div 2, “Duty of care”, is directed to whether a found duty of care has been breached. This is apparent from the terms of s 5B itself, which substantially reproduces the test for breach of duty of care stated in Wyong v Shirt. In Wyong v Shirt, Mason J said:

“[13] … when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

[14] In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

[15] The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors .” (emphases added)

34 Notwithstanding a tendency for judges to cling to Mason J’s formulation in Wyong v Shirt, claims for personal injury damages are now governed by the Civil Liability Act, subject to the exclusionary provisions of Pt 1 and, perhaps, cases which involve positive acts of negligence, to which I refer later.

35 In Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 the High Court, at [11], warned that if attention was not directed to the Civil Liability Act first, there was a serious risk that “inquiries about duty, breach and causation would miscarry”.

Did the appellant owe the respondent a duty of care?

36 The appellant contended that it did not owe a relevant duty of care to the respondent. It submitted that the duty it owed was the same as a roads authority, namely, to take reasonable care for persons taking reasonable care for their own safety: see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [47] 346 per Gummow J (Callinan and Heydon JJ agreeing). In this regard, the appellant submitted that the duty of care formulated in the road authority cases applied generally: see Folkes v Calabaro & Ors [2004] NSWCA 191, and that here the respondent was not taking care for his own safety.

37 I am not sure that Folkes v Calabaro & Ors is authority for the precise proposition advanced by the appellant. In Roads and Traffic Authority of NSW v Dederer Gummow J (Callinan and Heydon JJ agreeing) stated, at [43] 345, that:

“… duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.”

38 As to the first of those points, his Honour explained, at [44] 345:

“Regarding the first point, a duty of care involves a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs). Sometimes, the determination of that legal obligation is more complicated than it was at the time Lord Atkin announced his ‘neighbour’ principle in 1932 [ Donoghue v Stevenson [1931] UKHL 3; [1932] AC 562 at 580]. The law now recognises types of loss and kinds of relationships which are different from those of earlier days. Five members of this Court observed in their joint judgment in Sullivan v Moody [[2001] HCA 59; (2001) 207 CLR 562 at 579-580 [50] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ]:

‘Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.’(citations omitted)”

39 Gummow J, at [45] 345-346, further explained that the scope of the duty of road authorities, so expressed, had long antecedents in the law relating to occupiers’ liability. His Honour cited the well known passage in Indermauer v Dames (1866) LR 1 CP 274 at 288 (affirmed in modern times in cases including Romeo v Conservation Commission (NT) [1998] HCA 5; (1998) 192 CLR 431 at [123] 478; and Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at [99] 362), that:

“… it [is] settled law, that [a visitor], using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger.”

40 His Honour noted, at [45] 345-346, that the expectation that a potential plaintiff will exercise reasonable care for his or her own safety was “a general matter in the assessment of breach in every case”, but in the case of road authorities it was a specific element, as a matter of law, in the scope of a road authority’s duty of care.

41 Before dealing with the duty of care owed in this case, one aspect of the appellant’s case can be dealt with and briefly dismissed. The appellant relied on the respondent’s alleged failure to take reasonable care for his own safety in not keeping a proper lookout and thus failing to observe the chain. It submitted that as the respondent had not kept a proper lookout, the appellant did not owe him a duty of care. However, as Gummow J pointed out in Roads and Traffic Authority of NSW v Dederer, at [47] 346:

“The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe ‘for users exercising reasonable care for their own safety’. The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves.”

42 The appellant accepted that it was the relevant statutory authority with responsibility for the path. The scope of the duty owed by a statutory authority with the control of a park open to the public was considered in Romeo v Conservation Commission. There, a young woman was injured when she fell some 6.5 m from a cliff top in a nature reserve to the beach below. The nature reserve was under the management and control of the Conservation Commission. Kirby J stated, at [122]-[123] 478-479:

“It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion.

The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. However, that expression of the duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertance of the entrants. While account must be taken of the possibility of inadvertance or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety … In judging the measure of the duty which is owed regard will certainly be had to any particular statutory obligations or powers enjoyed by a public authority. But where, as here, the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care … The projected scope of the duty must … be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct.” (emphasis added)

43 When those remarks are transposed into this case, the relevant duty of care was to take reasonable care to avoid foreseeable risks of injury to persons entering the park as of right. There was no particular provision which qualified this general duty. That duty, as Kirby J stated in Romeo v Conservation Commission and Gummow J repeated in Roads and Traffic Authority of NSW v Dederer, fell to be measured having regard, inter alia, to persons exercising reasonable care for their own safety.

44 The park was open day and night to the general public, for a variety of recreational uses and purposes. The only prohibition on use was in respect of horse riding and vehicular access. Both the respondent and Mr Single said that they had cycled along the path on previous occasions and had seen other cyclists doing the same. There was no cross-examination of either in respect of this evidence.

45 The appellant argued that it was unaware that the path was used by cyclists. It adduced evidence from Mr Hull, who said that he did not attend the park personally, but had 18 staff involved in attending to the parks and reserves within the appellant’s jurisdiction. He then gave evidence as if he had personally attended the park. However, when Mr Hull’s evidence is read in its totality, I understand him to say no more than he would have expected Council officers to have attended the park on approximately a weekly basis. The appellant appears to contend that had cyclists been using the path, Mr Hull would have become aware of it. However, that proposition cannot be taken any further than his evidence, that as supervisor for parks and reserves, any complaints as to the use of the path would have been brought to his attention. Insofar as Mr Hull had any personal knowledge, he agreed that bikes were used everywhere in Taree and eventually conceded that he had seen one bike on the path sometime between 2006 and the date of the trial.

46 In any event, the question whether a duty of care was owed to the respondent does not depend on the appellant’s actual knowledge. The question is whether the appellant knew or ought to have known that cyclists used the path: s 5B(1)(a); Adeels Palace at [28].

47 Bike riding was particularly commonplace in Taree. The class of persons for whom the appellant was required to take reasonable care to avoid foreseeable risks of injury extended to all persons using the path for usual and permissible purposes. As I have indicated, the park was open to all users for recreational purposes, other than for horse riding and entry of vehicles. The path formed a natural extension of the pathway that ran parallel to the Manning River. Mr Hull described the river as “particularly beautiful” at this location. A path along a beautiful river in one of the most popular recreational parks in a local government area would reasonably be expected to be used for activities such as walking, jogging, scootering, skateboarding and, relevantly, cycling.

48 Recent caselaw has emphasised that the scope of a duty of care is determined prospectively, not by reference to what happened in the accident in question. The prospective test applies to the identification of the risk of injury. That is, a duty of care is owed so as to prevent harm from a “foreseeable risk of injury”. The necessity of identifying the risk of harm was emphasised by Gummow J in Roads and Traffic Authority of NSW v Dederer, where his Honour stated, at [59] 351, that it is only by identification of the risk that the assessment of the reasonable response to the risk can be assessed. Neither the trial judge, nor either party in their submissions to this Court, identified the foreseeable risk of injury that arose in the circumstances of this case.

49 In my opinion, the risk of injury that the appellant was required to take reasonable care to avoid was in respect of objects and obstructions across the pathway. Whilst the appellant was entitled to place diversionary obstructions along or across the pathway, it had a duty to exercise reasonable care in doing so, so as to avoid foreseeable risk of injury to users of the pathway, being persons who were taking reasonable care for their own safety.

Breach of duty

50 The appellant submitted that the trial judge had failed to engage in a Wyong v Shirt analysis when determining breach and had only made a finding in general terms. As I understand the argument, it was not based on an ‘absence of reasons’ ground as such, but was that without there being any reference to reasonable foreseeability, the proper response of the reasonable person to the risk, the weighing of the magnitude of the risk or the probability of its occurrence, or the expense, difficulty and inconvenience of any alleviating action, a finding of breach could not properly be made. It was the appellant’s case that there was no breach of duty.

51 The Civil Liability Act, s 5B, provides:

“ 5B 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.”

52 In Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263 McColl JA (Campbell JA and Sackville AJA agreeing), stated, at [173]:

“Section 5B is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subsection 1 sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising. As to whether such cases cover the entire field of negligence cases, see Drinkwater v Howarth [2006] NSWCA 222 at [11]-[13], [24]. Subsection 2 provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists. Section 5B presupposes the existence of the law of negligence, and operates against its background.”

53 In Drinkwater v Howarth Basten JA, at [10], raised the possibility that where a deliberate act had caused harm, s 5B may not apply. At [11], his Honour noted that there must be “an issue as to the interrelationship between s 3B, (which, relevantly, excludes intentional torts from the operation of the Civil Liability Act) and s 5B”. At [13], Basten JA stated it was at least arguable that s 5B applied to a deliberate act done without due care. The matter had proceeded on the basis that s 5B applied and his Honour considered that it was appropriate that the matter be decided on that basis. Hodgson JA agreed and added, at [24], that there may be a question as to the application of s 5B, not only to intentional acts, but also to positive negligent acts. As his Honour remarked, “there may be a question whether a positive negligent act is fairly described as failing to take precautions.” Tobias JA agreed with the remarks of both of their Honours.

54 The question whether s 5B applies in this case may depend upon the characterisation of the act of the appellant that caused the harm. If the act of the appellant is characterised as the positive act of placing an obstruction across the path, then s 5B may not apply and the correct approach would be to determine the question of breach in accordance with the common law. If the act of the appellant that caused the harm is characterised as the failure to take reasonable care in the installation of the vehicle deterrence barrier, then s 5B would apply.

55 Neither party referred to Drinkwater v Howarth and the case was approached both at trial and on appeal on the basis that the Civil Liability Act applied. I do not consider that anything will turn on the distinction in this case. The authorities have recognised that s 5B substantially restates the common law principles stated in Wyong v Shirt. In Waverley Council v Ferreira [2005] NSWCA 418, Ipp JA (Spigelman CJ and Tobias J agreeing) said, at [27]:

“At common law, the court is required to identify what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540. This is consistent with s 5B(1) of the Civil Liability Act …”

56 Ipp JA, when considering the provisions of s 5B(2), later stated that:

“[47] The explanation for the enactment of s 5B(2) appears from paras 7.5 to 7.18 of the Negligence Review. The Negligence Review expressed the opinion that the factors now set out in s 5B(2) should be given statutory force so that courts would focus more directly on the issue “whether it would be reasonable to require precautions to be taken against a particular risk” and to avoid conflation of the concept of foreseeability of risk with the conclusion that a reasonable person would have taken precautions against it.”

57 Ipp JA concluded:

“[51] Section 5B(2) provides a framework for deciding what precautions the reasonable person would have taken to avoid the harm and involves weighing the factors set out in ss 5B(2)(a) and (b) against those in ss 5B(2)(c) and (d) (subject, of course, to each being applicable in the particular circumstances of the case).”

58 In the present case, the appellant knew or ought to have known that the path was used by members of the public, including cyclists. The question for determination then, was whether a reasonable occupant in the appellant’s position would have foreseen that its conduct, in installing a silver coloured chain, in circumstances where it was slung low and where the concrete underneath was a similar colour, involved a risk of harm to the respondent or a class of persons including the respondent and, if so, whether it should have taken reasonable precautions to prevent the risk of harm.

59 I have already identified the class of persons to whom the duty was owed; namely, a class exercising reasonable care for their own safety including persons using the park for recreational purposes such as those identified at [47] above.

60 The risk of harm was the risk that persons exercising reasonable care for their own safety would not see the chain in a reasonable time to be able to take steps to avoid it, for example, by navigating around it. The appellant was aware of that risk. It knew the chain was a similar colour to the concrete. The risk of harm was not insignificant. The fact that the chain was slung low does not affect Mr Hull’s assessment. Mr Hull had explained that if a chain was taut, someone who collided with it would “just go straight over”. He considered by having the chain slung low it gave at least “slight warning that the chain is there”. It is not apparent how slinging the chain low would constitute any sort of warning in the circumstances that existed here. Mr Hull may have been referring to the type of accident that might ensue. However, the respondent’s experience did not bear this out. Any person cycling, running, or riding a scooter or skateboard was at danger of catapulting or tripping over the chain.

61 The trial judge accepted the respondent’s evidence that he did not see the chain until he was 10-12 feet away from it. His Honour’s finding that the respondent “looked and did not see it until it was too late” was, in my opinion, a finding to the effect that the chain was difficult to see. There were reasonable precautions that could have been taken by the appellant in response to the risk. The precaution which the respondent contended should have been taken was not using a metal chain. It was not suggested the appellant did not have the right to prevent vehicular access to the park. However, there were alternative means to achieve this end. It could have placed a bollard in the pathway, or it could have used a brightly coloured chain which was more readily visible.

62 The appellant did not suggest that any of these measures were not available to it, or that they were burdensome in terms of cost, time, utility or feasibility. Indeed, its intention had been to place a bollard at the entrance of the pathway which it generally preferred as a more effective vehicular deterrence barrier. The cost of erecting the bollard was small and it was not suggested that the taking of such alternative action had any budgetary impact on the appellant. In this regard, the Civil Liability Act, s 42, played no part in this case.

63 In my opinion, no error has been shown in the trial judge’s conclusion that the appellant was ‘negligent’, that is, that the appellant breached its duty of care, in erecting a chain that was not visible to users of the pathway, including the respondent, until shortly before they came upon it.

Was the risk obvious?

64 The appellant contended that the chain was an obvious risk, so that it did not owe to the respondent a duty to warn it of the presence of the chain: ss 5F, 5G and 5H. It should be noted that neither party suggested that this case fell to be determined under the provisions of s 5L, which provides that a defendant is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by that person, whether or not that person was aware of the risk. In this regard, an important aspect of the appellant’s submission that the chain was an obvious risk was based upon the speed at which the respondent was travelling. The appellant contended that his Honour erred in rejecting the evidence of Mr Single that as he and the respondent were crossing Macquarie Street, they were travelling at about 3 km per hour (ground 2). The appellant submitted that Mr Single’s evidence ought to have been accepted and that it followed that the presence of the chain would have been an obvious risk to a person travelling at about that speed (ground 4). It was also part of this submission that the respondent did not give any evidence of speed, nor did the trial judge make any finding as to speed, or alternatively, his Honour substituted his own finding as to the respondent’s speed, without any evidentiary basis for so doing (ground 3).

65 The respondent did not give a kilometre per hour assessment of his speed. However, he described how he braked as he got to the bottom of the hill at Macquarie Street, both because it was rough and because he was coming onto the road. He said that when he saw the chain, about 10 to 12 feet before he reached it, he braked and “skidded through and the chain hit the front of the bike, got caught up in the front wheel”. In cross-examination, the respondent said that he was not really taking any notice of his speed, rather, he was riding to the conditions, coming down the hill, slowing down.

66 Although Mr Single gave an estimate of the speed at which they were travelling, it was no more than an estimate. He said that when they were about halfway down the hill, they were travelling at about 10-15 km per hour. I pause to note that there is a significant difference in the upper and lower points of that estimate, indicative of the uncertainties inherent in any estimation of speed. Mr Single then said that as they were crossing the bottom end of Macquarie Street, in front of the Aquatic Club, they were travelling about 3 km per hour, saying, “it was just a slow ride”.

67 The trial judge found that Mr Single’s estimate of 3 km per hour was not realistic. As his Honour observed, that is a speed below walking pace. His Honour also said that, having inspected the scene and having observed the gradient of the pathway leading down to Macquarie Street, it was unlikely that the bike was travelling at such a slow speed. His Honour made no express finding as to the speed at which the respondent was travelling.

68 In my opinion, the challenge to his Honour’s finding as to speed should be rejected. The finding of the speed at which the respondent was travelling was a factual question for his Honour’s determination. He gave cogent reasons as to why he rejected Mr Single’s estimate. It would be most unlikely that the two cyclists would slow to a pace below a walking speed when travelling across Macquarie Street. It is also unlikely they would have been travelling at such speed given that the respondent was unable to stop before colliding with the chain, notwithstanding that he saw it when he was 10-12 feet away.

69 The appellant also contends that his Honour did not make any finding as to the respondent’s speed. This is correct in the sense that he did not find that the respondent was travelling at any specific speed. However, it is implicit in the rejection of Mr Single’s evidence that his Honour accepted the respondent’s evidence that he slowed when he got to the bottom of the hill and crossed over Macquarie Street.

70 It is difficult to know what is left in this aspect of the appellant’s case, given the terms in which ground 4 is formulated; namely, as dependent upon a finding that the respondent was travelling at about 3 km per hour just prior to colliding with the chain.

71 However, in its written submissions, the appellant contended that the chain should have been obvious to a reasonable person in the position of the respondent, and that the reference in s 5F to a “reasonable person” was a reference to a cyclist watching where he was going. It was submitted that finding that the chain was not an obvious risk was vitiated by the trial judge’s misunderstanding of the respondent’s evidence set out at [13] above. It was submitted that in not appreciating the force of this evidence, the trial judge had deprived himself of the opportunity of correctly deciding why the respondent had not seen the chain. This error influenced his Honour’s reasoning process and led to the finding that the chain was not an obvious risk.

72 The appellant sought to derive an ‘admission’ from the respondent’s evidence that he failed to see the chain because he was not keeping a proper lookout. The appellant placed particular emphasis upon the respondent’s statement that he “was watching” the man in the car parked in Macquarie Street reading his newspaper, as demonstrating that his attention was focussed on the car parked in the street and not on the pathway immediately ahead of him. I do not read the evidence in that way. Rather, the respondent was explaining what was happening as he came down the hill, reached Macquarie Street and then struck the chain. Properly understood, the appellant explained, in a sequential way, that he was scanning the scene, looking in the various directions necessary for him to safely proceed across the street. Critically, the respondent was not cross-examined as to how long he kept his gaze on the man, or to the effect that his attention was thereby taken away from the direction in which he was travelling to such an extent that he failed to take care for his own safety. Accordingly, I would reject the appellant’s submissions on this point.

73 The appellant submitted that even if his Honour did not misapprehend this evidence, a finding that the chain was an obvious risk remained open to this Court on the appeal which was by way of a rehearing. This latter reference is a reference to the nature of an appeal to this Court: the Supreme Court Act 1970, s 75A. Reliance was placed on the provisions of s 5F, that a risk may be obvious even if not “prominent, conspicuous or physically observable”.

Sections 5F, 5G and 5H

74 Sections 5F, 5G and 5H provide, relevantly:

“ 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 determining 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 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.”

75 Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the respondent (as the relevant plaintiff) was in: see Fallas v Mourlas [2006] NSWCA 32, where Ipp, Basten and Tobias JJA determined that “the position of the plaintiff” comprehended the particular circumstances in which the risk materialised and the harm was suffered.

76 The question of obvious risk requires a determination of whether the appellant’s conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the respondent: Carey v Lake Macquarie City Council [2007] NSWCA 4 at [93]; (2007) Aust Torts Reports 81-874. In Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 Ipp JA (Handley and Tobias JJA agreeing) stated that the position of the plaintiff will include the plaintiff’s knowledge and experience of the relevant area and conditions (see Ipp JA at [152]). (The question of obvious risk was not dealt with by the High Court in Roads and Traffic Authority of NSW v Dederer; see also Santow JA in C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136 at [106]-[108]). In Fallas v Mourlas Basten JA, at [153], stated that for the purposes of s 5F, it was necessary to identify the circumstances and extent to which “the aspects of ‘the position’ of the plaintiff” are to be ascribed to the reasonable person.

77 In the present case, the circumstances were that a chain was placed across the mouth of the path. The path commenced a short distance from Macquarie Street. The path was accessed by the respondent by crossing Macquarie Street, where he was concerned with traffic on that road and traffic coming from the Aquatic Club. The chain was slung low and blended into the colour of the new concrete underneath. The Council was aware of the colour of the concrete because it put the chain in place. The respondent had ridden this pathway before, but there was no chain across it on those previous occasions. However, a reasonable person in the position of the plaintiff might be taken to be aware that conditions in the open environment are not static. Changes can occur within relatively short periods of time, due to either natural or human intervention.

78 The trial judge found that the colour of the concrete made it difficult for the chain to be observed as one approached it, particularly on a pushbike. His Honour found that its existence was obscured, having regard to the surrounding environment. His Honour said that “the eye picks up many things as one advances on a pushbike and that the eye cannot only dwell on the road ahead”. The chain was very easily missed by any reasonable person. Its presence was completely unexpected and there was nothing to draw attention to its existence.

79 In my opinion, although a reasonable person in the position of the respondent could not expect that conditions along or in respect of the path would not change, a chain which may not be visible to a cyclist taking reasonable care, until a short distance before coming upon it, is not an obvious risk. The trial judge’s finding on this was clearly one that was available on the evidence and no reason has been shown calling for appellate intervention. In my view, a reasonable person in the respondent's position would not have concluded it was probable that a council in the appellant's position would sling a chain across a pathway which, having regard to the colour of the chain itself and the surrounding environment, was not visible to cyclists or others travelling along the path at greater than a walking pace until shortly before coming upon it.

Contributory negligence

80 The trial judge rejected the plea of contributory negligence, noting that that was a matter upon which the appellant bore the onus. His Honour reiterated his finding that the existence of the chain across the mouth of the path was not expected, and that its colour and positioning, having regard to the surrounding area, made it difficult to discern. His Honour considered that “[t]he eye of the rider, in this case [the respondent], would look further into the park as well as into the foreground”. His Honour found that a person in the respondent’s position could very easily fail to detect the presence of the chain. He accepted that it was arguable that some individuals in the respondent’s position might have detected its presence, but concluded that many prudent riders would not. In those circumstances, his Honour considered that the onus borne by the appellant had not been discharged.

81 In cases governed by the Civil Liability Act, a question whether a person is contributorily negligent is governed, relevantly, by ss 5R and 5S. Section 5R provides:

“ 5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

Section 5S provides:


“ 5S Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.”

82 In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at [67] and [68], Ipp JA (Giles JA and Hunt AJA agreeing) noted that in determining whether a plaintiff has been contributorily negligent it is necessary to have regard to the plaintiff’s personal responsibility for his or her own safety. As Callinan and Heydon JJ remarked in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, at [220] 483, a person owes a duty:

“… not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized.”

These remarks are consistent with the provisions of the Civil Liability Act , s 5R(1): Consolidated Broken Hill per Ipp JA at [67] 558-559.

83 Contributory negligence is determined objectively from the facts and circumstances of a case, which includes what the plaintiff knew or ought to have known at the time: s 5R(2)(b); Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [16].

84 In support of its argument that the respondent was contributorily negligent, the appellant relied upon the respondent’s evidence, set out at [13], to demonstrate that the respondent was not keeping a proper lookout. As I understand the appellant’s submissions, it also relies upon the fact that the respondent was riding at a low speed, that it was a clear day and that the respondent had an unobstructed view. In those circumstances, it was submitted that it was illogical to conclude that the chain could not be seen by any reasonable person taking reasonable care for his or her own safety.

85 I have already expressed my view as to the proper understanding of the respondent’s evidence as to what he did immediately before the accident. For the same reasons, I would reject the submission that the respondent’s evidence demonstrated that he failed to take reasonable care for his own safety. Likewise, I would reject the submission relating to the respondent’s speed as demonstrating that the respondent failed to take reasonable care for his own safety. Indeed, the fact that the respondent checked his surroundings and reduced his speed as he crossed the road and entered the park, demonstrates care on his part. Further, there was evidence that the colour of the chain blended into the colour of the underlying concrete so that it was not discernable until someone was close to it.

86 Therefore, I would not disturb the trial judge’s finding that the respondent was not contributorily negligent. The respondent’s speed was reasonable; the presence of the chain was unexpected, having only been erected two days prior to the accident; and, significantly, the colour of the chain blended into the concrete below. In my opinion, the trial judge’s reasons were appropriately based on the evidence and, although his Honour made no mention of s 5R, it is apparent from his reasons that he had regard to it.

Future economic loss

87 The appellant appeals against his Honour’s award of future economic loss and future loss of superannuation, in the sum of $83,250.

88 The trial judge found that the respondent had suffered a continuing injury to his neck that impacted upon all of his activities, particularly his working activities. His Honour considered that these symptoms would remain. Nonetheless, his Honour considered it was likely the respondent would continue to operate his own business, but that his capacity to work would be increasingly adversely affected by his neck injury. His Honour accepted that the respondent was a stoic individual and continued to work notwithstanding his symptoms.

89 His Honour approached the quantification of future economic loss in the following manner:

“I have had reference to s 13 of the Civil Liability Act as regards the assessment of economic loss. I find that [the respondent] is likely to work until retirement at age sixty-five, but I accept that his earning capacity is clearly diminished and that as he gets older he will find more difficulty in carrying out his work. I consider that the disability will reflect itself in loss of earnings for him. Although the approach of [the respondent’s] legal representatives is to have his retirement at age fifty-five, I am satisfied on the evidence that that is very unlikely to occur. He will continue to work, as I have said, until he retires at 65 years but that the interference in his capacity will be greater as he nears his retirement.

I have considered the different approaches I could take. I have taken the view that one way of assessing his loss of earning capacity is to assess the value of his earning capacity to age sixty-five. Taking $810 per week on the multiplier for twenty years and deducting 15 per cent vicissitudes, I arrive at a figure to reflect his future earning capacity. Taking 16 per cent of that figure, I arrive at approximately $75,000 under that head of damage.

For future superannuation I allow 11 per cent, which is $8,250.”

90 An award of future economic loss in a case to which the Civil Liability Act applies is governed by s 13. The appellant did not challenge the award on the basis that any error was made in the application of that section. Rather, it submitted that the award was excessive and that, in this case, an appropriate award for loss of earning capacity should be in the form of a modest cushion or buffer, because there were so many vagaries and imponderables in the respondent’s future circumstances that any attempt at being scientific about the assessment became infected by guesswork.

91 The appellant contended that the respondent was not in fact seriously injured. It pointed out that there was arguably no frank injury and the high point of the respondent’s medical case was an MRI of the cervical spine, taken on 21 April 2008, which recorded:

“There is a broad degenerative disc bulge which minimally indents the dural sac. There is no cord compression. Small osteophytes are present at the vertebral body margins. There is no significant foraminal narrowing and there is no neural compression.”

92 Although contending that the respondent was not seriously injured, the appellant accepted that the respondent was injured in the accident and it does not contend that his injuries were trivial. At trial, the respondent’s evidence that he suffered pain at work and pain in the evenings after he finished work, was unchallenged. The appellant submitted however that it was likely that the respondent’s injury involved an aggravation of a previously asymptomatic condition associated with long-standing degenerative changes. This was the opinion of Dr Hyde-Page, an orthopaedic specialist qualified by the appellant to provide a medico-legal report. Dr Hyde-Page expressed the opinion that the respondent’s pain was likely to abate but may not completely settle.

93 The respondent had obtained a medico-legal report from Dr Hopcroft, general surgeon, who expressed the opinion that the respondent may have suffered a disc lesion in the accident. He commented that the MRI demonstrated significant underlying pathology. However, the appellant points out that Dr Hopcroft did not express an opinion as to whether any new pathology had been caused in the accident, or whether any underlying pathology had been aggravated.

94 The appellant submitted that at the time of trial, approximately two and half years after the accident, the respondent’s injuries had not caused him to miss a single day from work, nor had he lost a single commercial opportunity in his business. He had accepted all work that had been offered to him and had been able to perform all the functions of a boilermaker that he had previously undertaken prior to the accident. The respondent also had other skills that he would be able to utilise readily, should he not be able to continue his work as a boilermaker. For example, he had worked as a salesman for Taree Tools and he still had the skills acquired in that employment.

95 On the basis of that evidence, the appellant contended that there was no evidence that the respondent would suffer actual economic loss within the next five, or perhaps ten, years. The appellant said that his Honour had inferentially found this to be the case, in that his Honour held that the respondent would work until the age of 65 years with “interference” of his injury on his work capacity being greater as he neared retirement.

96 The appellant did not dispute his Honour’s finding that the appellant suffered a 16 per cent loss of earning capacity. However, it submitted that his Honour erred in then failing to determine what percentage of that loss was, or may be, productive of financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347 per Dixon CJ. In particular, the appellant submitted that his Honour failed to make any allowance for there being no loss of earning capacity that was presently productive of financial loss. This submission was based largely on the respondent’s evidence that he had not refused any work and that he accepted any work that came along, as it fitted within his skill base.

97 In oral submissions, the appellant suggested that the respondent might have been working less hours because of the financial crisis. However, that was not a matter raised with the respondent in cross-examination. The appellant also submitted that his Honour erred in averaging the respondent’s loss of earning capacity over his working life. It was submitted that whilst this approach might have been suitable in a case such as Dessent v Commonwealth of Australia (1977) 13 ALR 437 at 444-445, it was not appropriate in a case such as this, where, at the most, it appeared that the respondent should only be compensated for occasional losses for work in the future.

98 The respondent submitted that there was no basis for interference with the trial judge’s award for future economic loss. He disputed the appellant’s assertion that there was no evidence that he would suffer economic loss in “the next five years and perhaps the next ten”. Rather, his evidence was that prior to the accident, he was working between 50 and 52 hours per week, but since the accident, he had cut back his hours by about 12 hours a week and he had to do so “just to recuperate of an afternoon”.

99 In my view, contrary to the appellant’s assertion, there was evidence that the respondent’s earning capacity was presently productive of economic loss. The respondent’s evidence on this was supported by Dr Hopcroft, who expressed the opinion that the respondent was “now compromised in his pre-injury occupation of being a boilermaker”. Dr Hopcroft expressed the view that it was inevitable that the respondent would have to take periods of time off work, “for rest and therapy to bring his neck pain under control”. Whilst it is true that Dr Hopcroft did not express any opinion as to whether the respondent’s condition was referable to a pre-existing degenerative condition, he was not required for cross-examination on his report. As I read that report, Dr Hopcroft attributed the respondent’s condition to the accident. On 31 March 2008, Dr Hopcroft stated:

“I believe it is quite likely that this patient has suffered a significant cervical disc lesion superimposed on a pre-existent asymptomatic cervical spondylitic condition but MRI scanning will help considerably in clarifying his underlying pathology.”

100 It is clear that the doctor was distinguishing between a new and significant complaint, superimposed on a pre-existing condition. It should be inferred that the new complaint was caused by the accident, there being no other explanation referred to in the report. Following the MRI scan, Dr Hopcroft reported that his earlier opinion was confirmed and stated that:

“It may well be that this injury will progress significantly over the next five years and may well significantly further compromise this patient’s workability in his chosen trade.”

There may be a degree of ambiguity in that statement, but the preferable reading, given the confirmation of the earlier diagnosis, is that reference to “ this injury ” was intended as a reference to injury caused by the accident and not to the underlying condition or any other cause.

101 It is apparent from his Honour’s findings set out at [98] above, that he accepted Dr Hopcroft’s evidence, as he was entitled to do. In my opinion, it has not been demonstrated that the trial judge erred in his assessment of future economic loss and I would reject this ground of appeal.

102 Accordingly, I propose the following order:

Appeal dismissed with costs.

103 McCOLL JA: I agree with Beazley JA.

: I agree with Beazley JA that the appellant’s challenge to the findings with respect to liability and in relation to the assessment of future economic loss should be rejected. I agree with her Honour’s reasons in those regards. I also agree with her Honour’s conclusion and reasons in relation to contributory negligence, but would add some further observations.

Contributory negligence

105 Section 5R of the Civil Liability Act 2002 (NSW) is to be applied in determining the question of contributory negligence. It requires that the “principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent”: see s 5R(1) at [81] above. Neither the purpose nor the operation of this provision is self-evident, despite the straightforward language used.

106 The exercise to be undertaken is different in each case. With respect to the defendant, the Court must assess how, as in this case, it should, in the exercise of reasonable care for users, undertake the control and management of a park. This will no doubt require reference to the range of activities undertaken in the park, the varying characteristics of people who use the park and the objective features of the park itself. Where risks were, or ought to be have been, identified, the defendant is required to assess the seriousness of the risk, the steps available to reduce or remove the risk and the costs (of all kinds) in taking such steps. These are the kinds of factors identified in ss 5B and 5C of the Civil Liability Act. Although it is an assessment which is undertaken after an injury has occurred, it must be undertaken prospectively, as at a time which pre-dates the injury.

107 The assessment of the plaintiff’s conduct involves a quite different exercise. A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter assessment is to allow for an apportionment of responsibility for the injury by a reduction in the damages recoverable by the plaintiff “to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”: Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1). That is a different exercise from the determination of whether or not the defendant has been negligent.

108 A further important difference in approach in assessing the negligence of the defendant, as against the contributory negligence of the respondent, involves the degree of precision by which the activity, including relevant states of knowledge and understanding, is to be identified. Thus, the state of the park at the time of the accident was a matter of objective fact. Although some attention was paid in the evidence to identifying what was known by officers of the Council with respect to the use of the pathway by cyclists, the answer to that question was not critical on the issue of liability. It would have been sufficient for the plaintiff to demonstrate that the Council ought to have known that the path was used, or likely to be used, by cyclists. With respect to the plaintiff, the focus of the evidence is often quite different. Although the ultimate question is what a reasonable person in the cyclist’s position would have known and done, it is inevitable that the evidence will focus upon the knowledge, understanding and actions of the plaintiff himself, shortly prior to the accident, in part to determine whether he exercised reasonable care, but also to assess what would be reasonable care in the specific circumstances. That evidence has been described and assessed by Beazley JA at [7]-[11] and [20] above.

109 It would be to impose an artificial and convoluted intellectual exercise on the trial judge to assess the conduct of a bicycle rider at the moments just prior to the accident, by reference to the matters to be considered under ss 5B and 5C. That may be appreciated by asking how an hypothetical jury might be instructed to carry out that exercise.

110 Many (though not all) provisions of the Civil Liability Act derive from the recommendations of the Review of the Law of Negligence Final Report (2002), chaired by the Hon David Ipp (“the Ipp Report”). Section 5R is based on recommendation 30, which identified as an appropriate principle to be reflected in legislation that, in determining contributory negligence, “the standard of the reasonable person is the same as that applicable to the determination of negligence”. This is a more narrowly focused principle than the broad statement found in s 5R. In this respect, the Ipp Report sought to give effect to the discussion in the judgment of Mason J in Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563 at 571-573. Prior to that passage, Mason J stated (at 570):

“Contributory negligence differs from negligence. There is no duty of care owed to another person … ; and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk. None the less it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant [plaintiff?] is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury ….”

111 The Ipp Report was concerned to reject the suggestion that some lesser standard was to be applied, such as that identified by Murphy J in Ruprecht (at 578-579) namely that, in the case of an employee, where there was “no conscious deliberate disregard of safety”, there was no contributory negligence.

112 It is sufficient for present purposes to treat s 5R as requiring that the standard of care be the same as that applied in negligence, in the generic sense referred to by Mason J in Ruprecht. Whether s 5R has any broader operation need not be considered in this case.

113 One way of testing whether the same standard is being applied is to consider a variation of the facts so that the plaintiff is not merely the injured party, but also the cause of injury to a third party. For example, if the plaintiff, either as a result of hitting the chain, or in a belated attempt to avoid it, had hit a pedestrian, would he have been treated as partly responsible for the injury to the pedestrian?

Reviewing the finding below

114 The differential nature and purposes of a finding as to negligence and a finding as to contributory negligence also have consequences for the approach of this Court in reviewing a finding. The former is reviewed in accordance with the relatively broad scope for intervention accepted in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ). By contrast, as explained by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 493-4:

“A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.”

115 The primary judge, in his finding on contributory negligence set out at [24] above, approached the matter correctly, in terms of principle, having regard to what should be expected of a cyclist exercising proper care for his or her own safety. As his Honour noted, some individuals may have detected the presence of the chain, but some would not have. Implicitly, his Honour made a finding that the plaintiff fell into the latter category; in other words, he failed to see the chain in time, despite the fact that he was exercising reasonable care for his own safety.

116 I agree with Beazley JA that the appellant has not demonstrated error, given the nature of the exercise involved, underlying those findings.

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