Hulme v City of Rockingham
[2007] WADC 100
•26 JUNE 2007
HULME -v- CITY OF ROCKINGHAM [2007] WADC 100
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 100 | |
| Case No: | CIV:1559/2004 | 26-27 APRIL 2007 | |
| Coram: | WAGER DCJ | 26/06/07 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff Damages reduced by 75 per cent for contributory negligence | ||
| PDF Version |
| Parties: | RAYMOND HULME CITY OF ROCKINGHAM |
Catchwords: | Torts Negligence Liability of local government Cycle path Contributory negligence of cyclist Duty to take reasonable care for safety |
Legislation: | Civil Liabilities Act 2004 s 9 Local Government Act 1960 (as amended) |
Case References: | Brodie v Singleton Shire Council 206 CLR 512 Lake Macquarie City Council v Holt [2004] NSWCA 305 Podrebersek v Australian Iron and Steel Pty Ltd (1989) 59 ALJR 492 Town of Mosman Park v Tait [2005] WASCA 124 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CITY OF ROCKINGHAM
Defendant
Catchwords:
Torts - Negligence - Liability of local government - Cycle path - Contributory negligence of cyclist - Duty to take reasonable care for safety
Legislation:
Civil Liabilities Act 2004 s 9
Local Government Act 1960 (as amended)
Result:
Judgment for the plaintiff
Damages reduced by 75 per cent for contributory negligence
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Representation:
Counsel:
Plaintiff : Mr T H Offer
Defendant : Mr J Eller
Solicitors:
Plaintiff : Vertannes Georgiou
Defendant : John Eller
Case(s) referred to in judgment(s):
Brodie v Singleton Shire Council 206 CLR 512
Lake Macquarie City Council v Holt [2004] NSWCA 305
Podrebersek v Australian Iron and Steel Pty Ltd (1989) 59 ALJR 492
Town of Mosman Park v Tait [2005] WASCA 124
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1 WAGER DCJ: On 23 July 2003 the plaintiff Mr Hulme came off his bicycle when he hit a raised grass verge on the side of a cycle path on the Waikiki foreshore as a result of swerving to avoid raised and cracked pavement. Mr Hulme sustained an injury to his right shoulder from the fall. The defendant is the council with the responsibility for maintaining the cycle path. Quantum is agreed. The issue to be determined is the question of liability.
2 Mr Hulme pleads that he was keeping a proper lookout and riding appropriately and that the fall occurred as a result of the defendant's negligence and failure to fulfil its statutory duty of care pursuant to the Local Government Act 1960(as amended) to properly repair and/or maintain the cycle path. Mr Hulme further pleads that the defendant failed to warn or prevent cycle path users from accessing the area and, as a result, Mr Hulme claims that he was exposed to a foreseeable injury.
3 The defendant's position is that Mr Hulme failed to exercise proper care for his own safety. The defendant pleads that the system of maintenance and inspection in relation to the cycle path was reasonable subject to the defendant's budgetary constraints.
The Facts – The Plaintiff's Evidence
4 At approximately midday on 23 July 2003 Mr Hulme the 48 year old plaintiff rode his Raleigh mountain bike from his home in Cooloongup to the Waikiki foreshore. For 12 to 18 months prior to this day Mr Hulme regularly rode a 20 kilometre circuit from Cooloongup to Waikiki, Rockingham and Palm Beach once or twice each week. On 23 July 2003 however he varied his route so that he rode further along the Waikiki cycle path. Mr Hulme estimates that his speed on this occasion was 10 to 15 kilometres per hour. He was keeping to the left of the 2.5 metre wide cycle path and he did not see any other traffic or pedestrians on the Waikiki foreshore stretch. As he approached towards the Waikiki beach amenities area Mr Hulme saw a view of the beach that he had not seen before. Mr Hulme is a keen painter and photographer and he decided to return to this spot at a later date in order to take a photograph of the view. He had been riding for a total of 30 to 35 minutes at this time and had covered a distance of 5 to 7 kilometres. He describes how at this point he did not know what happened however a huge piece of something that had the shape of the inside of an upturned café umbrella appeared on the pavement approximately 1.5 to 2 metres in front of him. He made an emergency decision to veer to the left of the cycle path and to ride up onto the grass embankment in order to avoid the obstruction. In order to mount
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- the grass he turned his front tyre to an angle of 20 to 30 degrees to the left of straight. The tyre collided with the grass edge at a time when the damaged area of pavement was right opposite him. He fell off his bicycle and onto the grass injuring his left shoulder as a result of the fall. It was only after colliding with the grass that he realised with clarity that the cracking was not an umbrella frame but was in fact pavement that was pretty broken up and raised.
5 When shown an undated photograph of a portion of cracked pavement (Exhibit 1) that had allegedly been taken by an employee of the defendant Mr Hulme believed that the area shown looked similar to the area at which he fell however he could not be sure that it was the same area. He believed that the area where he fell looked a lot worse than that shown in the photograph and that the pavement was marked with blue paint rather than white paint. At the time of his fall he estimated that the fall occurred approximately 50 metres south of the Waikiki amenities block and this remained his understanding communicated in correspondence to the defendant until he re-examined the scene.
6 Mr Hulme did not return to the scene until approximately two months after his fall on 19 September 2003. By that time the cracked area had been fixed and new concrete laid. On this occasion he assessed that the area where he fell was approximately 150 metres south of the Waikiki amenities block.
7 Extensive photographs of the area taken on 19 September 2003 show that the cycle path is flat and relatively straight for a distance of many hundreds of metres. There is no vegetation covering the cycle path nor do any shadows fall over the track. The fall occurred at approximately midday on a day when the weather was fine and clear.
8 Mr Hulme agreed that he did not see the cracked portion of the cycle path until he was virtually on top of it. He agreed that there was ample room for him to veer to the right of the cycle path in order to avoid the cracked portion of the pavement which was on the left hand side of the cycle path however in a split second decision he chose to veer to the left because he considered this to be the best option at the time.
9 Associate Professor William Yandell consultant in highway and traffic engineering who holds the position of Associate Professor of Civil Engineering in the Department of Geotechnical Engineering, University of New South Wales, gave expert evidence in relation to the appropriate procedure to be followed by a city council in relation to the
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- care and maintenance of cycle paths and provided his opinion in relation to the nature of the damage to the cycle path.
10 His evidence was challenged because Associate Professor Yandell had never visited the site and had prepared his report three and a half years after the incident. Further, his opinion was based on written material provided by Mr Hulme's solicitors together with the photograph of cracked pavement (Exhibit 1), that was not adopted by Mr Hulme as being the location of his fall, was not dated and the photographer was not identified, together with the photographs of the Waikiki foreshore taken on 19 September 2003, being two months after the fall.
11 Associate Professor Yandell considered that the likely cause of damage to the cycle path was from a vehicle driving on it and thereby cracking it because he had seen similar damage arising from vehicle impact in New South Wales. Associate Professor Yandell noted that the photograph Exhibit 1 showed grass growing in a crack that once held bitumen that operated as an expansion joint. He also noted that the cracks were relatively wide being over a centimetre in width in a number of locations. He concluded that the cracking must have been present for some time to allow the grass to grow and to lead to the widening of cracks in this way. He estimated that the damage to the cycle path probably occurred at least six months prior to Mr Hulme's fall. No evidence was led from Associate Professor Yandell as to why he specifically considered the period to be greater than six months.
12 In Associate Professor Yandell's opinion a council should gauge the priority of repairs so that areas that experience greater traffic have top priority because greater use exposes more people to potential risk. Comparing practices adopted by other councils Associate Professor Yandell referred to the Tumut City Council plan in which the footpath is examined every six months. In his view a six monthly check was insufficient for Rockingham and he favoured the plan adopted in the City of York, United Kingdom where a cycling inspector cycles the full length of the cycle path each week in order to report and address repairs. Although the City of Rockingham has 250 kilometres of cycle tracks and would require one full-time employee riding for 24 hours per week in order to assess and report the Professor did not consider that this expense and commitment of manpower was excessive. Associate Professor Yandell considered that a weekly survey from a moving vehicle could be used, however he favoured the ongoing inspection by a cyclist.
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13 Associate Professor Yandell believed that if the council took more care to ensure that the pavement was fixed then the raised grass to the side of the cycle path would not be a problem for cyclists because they would not need to veer from the path.
The Defendant's Evidence
14 Andre Peter Frederick Kerp, City of Rockingham engineer, has been manager of engineering services since July 2006 and was employed by the council in 2003 as an engineer. In 2003 the council did not implement a formal procedure for the examination of the cycle path. The council relied on complaints from members of the public and followed an informal system whereby employees employed in other capacities were encouraged to report any problems that they observed in the course of their employment to their superior. Mr Kerp agreed that although employees may be engaged in mowing lawns in the vicinity of the cycle path it was not part of their job description to be looking for cracks or other hazards on the cycle path. Mr Kerp described the Waikiki foreshore area as being a very, very high traffic area for pedestrians, cyclists and young mothers pushing prams however the area was busier in summer than in winter. Following a check of the council's records Mr Kerp confirmed that no complaint had been received in relation to the cycle path area at Waikiki between January to October 2003.
15 Mr Kerp agreed that he was the officer who gave Mr Hulme the photograph of the cracked pavement that is now Exhibit 1 however he did not know when the photograph was taken nor by whom. Mr Kerp confirmed that the only repair to the Waikiki foreshore cycle path in August 2003 was carried out 160 metres south of the amenities blocks and that another area of repair that is visible in the photographs taken in September 2003 was carried out in 2002. He confirmed that the total council budget for footpaths and repairs for the year commencing 1 July 2003 was $92,000.
16 Dean Paul Charles, Supervisor, had worked for the defendant for 25 years and had held his current position for 14 or 15 years. He supervises 30 staff including a lawn mowing team that works on rotation on the Waikiki foreshore. Employees are instructed that if they locate a potential hazard in the area they are to complete a hazard report form that is kept in council vehicles or recorded in a book held in the council office. It is Mr Charles' practice that if a hazard is reported to him he reports it to the appropriate officer so that an inspection can be arranged. In 2003 the appropriate officer was Colin Matthews.
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17 Mr Charles confirmed that sand builds up quickly in the grass area on the Waikiki foreshore because of the sea breeze. A lawn build up of 10 to 15 centimetres was, in his view, too high and should be cut back. He considered that a build up of that height would take some time to form. When shown a photograph taken in September 2003 of an area in the vicinity of the site where Mr Hulme fell showing grass thickness of 10 to 15 centimetres he confirmed that in his view this depth should have been reported and removed.
18 Mr Charles believed that the grass growing in the pavement cracks shown in Exhibit 1 could have taken approximately two weeks to grow. He also noted that it was unclear from the photograph whether the area had been sprayed to kill the grass between the cracks and noted that it would take some time after spraying for the grass to react and die.
Exhibits
19 There are two Overseers/Engineers Incident Report forms relevant to the Waikiki foreshore area that have been prepared by the defendants. The first report dated 20 August 2003 and signed by Colin Matthews, Acting Coordinator, refers to the "exact location where incident occurred" as "approx. 50 metres left side of amenities block Waikiki foreshore". It is noted in the Comments section of the report:
"Footpath under repair. When inspection, found contractor, asked him of condition of path, several cracks in path approx. 80 metres from amenities block."
20 The second Overseers/Engineers Incident Report dated 25 August 2003 is signed by K Foster, Contract Supervisor. This report also refers to the incident occurring approximately 50 metres left of the amenities block at Waikiki foreshore and notes "Put up warnings" and in response to "… when will permanent work be carried out?" notes "Within two weeks".
21 An invoice from the independent contractors employed to lay concrete refers to 40 square metres of concrete being poured on 20 August 2003 at a cost of $2,420.
Size and nature of the cracked pavement
22 Although Mr Hulme did not agree that the cracked pavement shown in the photograph Exhibit 1 was the scene of his fall, other evidence supports that this was the location. It was Mr Kerp's evidence that the procedure in relation to any noted hazard is to put a hazard/warning sign
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- in place and then fix the area. It appears from the rope or string shown in the photograph that this had occurred. The date of the photograph Exhibit 1 is unknown however, Mr Hulme would have referred to a barrier, rope or string, if one was in place on the day of his fall. There is no evidence to support that the barrier was in place, removed and then replaced. I do not accept that this would be likely to occur.
23 Mr Kerp stated that concreting would occur in one day and that on this occasion a one day period was consistent with the invoice of the independent contractor for 40 metres of concrete. The fall occurred on 23 July 2003 and was repaired on 20 August 2003. I find that the photograph Exhibit 1 was taken on a date between those two dates.
24 When Mr Hulme returned to the scene two months after his fall the cracks had been repaired. After revisiting the scene Mr Hulme thought his fall had occurred 160 metres south of the amenities area. This location is consistent with Mr Kerp's evidence that the only repair to the area in 2003, specifically 20 August 2003, was 150 metres from the amenities block. The area closer to the amenities block had been repaired approximately one year before the August 2003 repairs were carried out, therefore at a time before Mr Hulme had ever ridden along the cycle path.
25 Given that it was the only area to be repaired at the relevant time and that photograph Exhibit 1 was kept on the file relevant to the single repair and shows a path area very similar to the path depicted in photographs of the repairs taken two months later I am satisfied on the proven facts that the inference to be drawn is that Exhibit 1 is a photograph of the location where Mr Hulme fell.
26 I accept that photograph Exhibit 1 shows the portion of cracked pavement at which the fall occurred and that the photograph was taken between 23 July 2003 and 20 August 2003.
27 It was unchallenged that the cycle path was 2.5 metres in width at the point of the fall. The crack is to the west of the cycle path and, although it has not been measured, it would appear from the photograph Exhibit 1 to be no wider than 1 metre because it is less than half of the path's width. It may have been Mr Hulme's perception that the obstruction was bigger or alternatively the cracks may have been raised to a greater height at the time of Mr Hulme's fall and flattened later due to circumstances that are not known. Any determination in relation to the height and depth of the crack at the time of the fall is speculation only.
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28 Associate Professor Yandell concluded that the cracks were over six months old. He reached his conclusion from the grass growing where the bitumen expansion joint had once been inserted and from the width of the cracks indicating settling over a period of time. Although I accept the cracking was not recent I do not accept that Professor Yandell can precisely gauge that the cracking occurred more than six months prior to the photograph Exhibit 1 being taken. Associate Professor Yandell did not examine the scene and no evidence was led of him holding any expertise in relation to lawn growth in coastal Western Australia. He was never asked whether the lawn had been sprayed, an issue raised by Mr Charles. Associate Professor Yandell resides in New South Wales and reached his conclusion from examining the single photograph only (Exhibit 1) that was not dated, not measured, nor identified by a photographer. I do not accept Associate Professor Yandell's assessment of a time period of greater than six months as accurate because of the limited material on which he based his assessment.
29 Mr Charles expressed the view that grass could grow in a crack in a two week period however the settling and width of the cracks as noted by Associate Professor Yandell indicated that the pavement has been in a cracked state for a period significantly longer than two weeks.
30 Mr Kerp agreed that the cracked pavement had been present for a period of time.
31 I do not consider on the evidence before me that it is possible to calculate precisely when the path was cracked, however it would be at least a number of months given the width of the cracks coupled with the lawn growth.
Should the cracked pavement have been fixed prior to the date of the incident
32 There is no evidence that the defendant knew about the cracks prior to the plaintiff's fall. Mr Kerp however confirmed that the area was very, very busy and was a high density area and the council anticipated a mixed use of cyclists, pedestrians and mothers with prams. In Associate Professor Yandell's opinion if an area is a high density area then the council should give it greater priority in relation to repairs and examination. The defendant did not have a positive procedure for inspection and relied on the public and the vigilance of its employees when employed in other tasks totally unrelated to path examination to alert it to any damage. The cycle path had been cracked for a number of months and no report or complaint was received. The ad hoc system had
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- also failed in relation to the raised grass photographed by Mr Hulme at the side of the cycle path two months after his fall. Mr Charles agreed that the estimated height of the grass photographed of 10 to 15 centimetres was too high and should have been the subject of a complaint. Although the photograph shows that the edges had recently been trimmed by a mowing team, no complaint was received by council and no action was taken. The informal procedure adopted by the defendant in relation to identifying risks and the need for repairs was inadequate.
33 The two Overseer/Engineers Incident Report forms are very confusing. Repairs had already been commenced when the acting coordinator attended on 20 August 2003 however there was nothing in the council records to indicate that the repair was requested or why the repair had occurred. The defendant did not have any reliable procedures in place to ensure that damaged pavement was brought to its attention nor any records as to the actions of the independent contractor in relation to initiating repairs.
34 I agree with Associate Professor Yandell's assessment that in a high density area such as the Waikiki foreshore an examination every six months would be insufficient because of the potential danger to cycle path users over the intervening six month period, however I do not accept that it is appropriate to employ a dedicated employee to ride 250 kilometres each week up and down the cycle track in order to check whether the path has been damaged. The defendant's annual budget for all footpaths and repairs is $92,000.00. It is not feasible to employ a fulltime employee solely to report on damage to cycle paths. Doing the best I can on the evidence presented I consider an examination of the cycle paths should have been held approximately every two months to three months in high density areas such as the cycle path on the Waikiki foreshore and that the examination should be a task allocated as part of the job description of an officer employed by the council.
Grass edging
35 Although both Mr Charles and Mr Kerp consider that a grass edging of 10 to 15 centimetres is not acceptable I am not satisfied that the grass was at that height at the time and at the location of the fall. A photograph was taken nearly two months after the event in a different location from where the fall occurred. Coastal winds are very strong and Mr Charles confirmed that the grass profile can change rapidly. I accept that the grass was raised at the time of the fall however I cannot be satisfied as to how high.
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36 In any event the cycle path was 2.5 metres wide on a flat surface with clear visibility. Often cycle paths have kerbing or barriers such as logs or rocks to the side of them. Given Mr Hulme's familiarity with coastal cycling the effect of wind on beach sand and grass should have been known to him. 2.5 metres is sufficient for a bicycle to pass or overtake other cycle path users while remaining on the path without going off the edge. The issue is the quality of the 2.5 metre surface of the cycle path not the height of the grass edging.
The defendant's position
37 A consideration of a defendant council's responsibilities and the issue of breach of duty of care is set out by McLure JA in Town of Mosman Park v Tait [2005] WASCA 124 at par 48 - par 51:
"The classical statement of the correct approach at the breach stage of negligence analysis is contained in the reasons of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40. In deciding whether there has been a breach of their duty of care, the Court 'must first ask itself whether a reasonable man in the defendant's position would have foreseen that conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff'. If the answer to that question is in the affirmative, it is then for the Court to determine what a reasonable man would do by way of response to the risks. Mason J continued (at pp 47 - 48):
'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 erroneous to focus on the particular harm that eventuated and the steps that could have been taken to avoid that harm from which a finding of negligence usually follows. The essential question is whether a defendant's failure to eliminate the relevant risk showed a want of reasonable care (Tame v State of New South Wales (2002) 211 CLR 317 at [98]-[99] per McHugh J).
Proper inquiry at the breach stage of the negligence analysis involves identifying with some precision what a reasonable
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- person would do by way of response to a reasonably foreseeable risk (Graham Barclay at [192]). In this case the alleged breach was appellant's failure to have a proper system of inspection of the oval. That being the case, it was incumbent upon the respondent to demonstrate that there was some system of inspection which was an alternative to that which the appellant was using at the time of the accident which was free of or reduced the risk complained of and which was available in a practical sense: Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulbourn v Hadba [2005] HCA 31 at [13]. That formulation requires an eye to issues of causation; that is, a system that would or could have prevented the respondent's injury: Trustees of the Roman Catholic Church at [27].
The respondent was required to identify with precision what a reasonable person would do, either by reference to industry standards or practice and the financial or other impacts of the proposed system: Trustees of the Roman Catholic Church at [14]."
38 The foreshore area of the cycle path was very, very busy because it was near a scenic beach with amenities and the defendant knew to expect that pedestrians, cyclists and young mothers with prams would be using the cycle path. Mr Hulme was one of the cyclists who chose to use the path and the defendant's duty of care extended to him.
39 The plaintiff would have assumed that the defendant would take reasonable care for the safety of cycle path users by assessing the maintenance needs of the cycle path. The fact that the plaintiff could have seen the cracked portion if he had been keeping a proper lookout does not absolve the defendant from its responsibilities.
40 The defendant's failure to implement a system whereby the cycle path was checked on a regular basis exposed the plaintiff to this hazard. Motor vehicles were likely to run over the cycle path given the mowing schedule and there was a real risk of cracking. When repairs were carried out they cost $2,420 being a small percentage of the annual budget of $92,000 for footpaths and repairs and the pouring of the 40 metres of concrete required to correct the defect was a routine procedure. By its failure to adopt a system where an employee had a positive duty to check cycle paths in high density areas and to trigger a repair procedure the defendant failed to take reasonable care for the safety of the plaintiff.
(Page 13)
The plaintiff's position – contributory negligence
41 Mr Hulme had a duty to keep a proper lookout. He was travelling at 10 to 15 kilometres per hour in broad daylight on a flat surface with clear visibility he had the ability to slow or to stop if he saw any danger ahead. Given his speed and the surrounding circumstances, his position was analogous to that of a pedestrian using the cycle path (Lake Macquarie City Council v Holt [2004] NSWCA 305, 31 September 2004). In Brodie v Singleton Shire Council 206 CLR 512 Gaudron, McHugh and Gummow JJ stated in relation to pedestrians at p 581, par 163:
"(iii) (Pedestrians)
The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia (1982) 43 ALR 465or the grass (Buckle v Bayswater Road Board (1936) 57 CLR 259 at 266). In such circumstances there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety."
42 This was the first time that Mr Hulme had ridden on this cycle path on the Waikiki foreshore so he was unfamiliar with the portion of the track however he was familiar with riding his bicycle on coastal cycle paths and therefore familiar with coastal conditions. He should have concentrated on the cycle path ahead. He acknowledged that he was captivated by the view of the beach and was making future plans to take a photograph of the location and accordingly his concentration was diverted from the path to the view to the west. This is the reason why Mr Hulme failed to see the cracked section until he was approximately 2 metres from
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- it. Had he kept a proper lookout and paid greater attention to the cycle path, then he would have seen the crack earlier and he could have taken evasive action either by braking to a stop or veering to the right of the cracked portion while staying on the cycle path. By failing to pay attention he saw the cracked pavement too late and therefore made an inappropriate decision to divert his bicycle to the left, requiring him to go off the cycle track. It was as a result of his decision to veer to the left that he hit the raised grass edge and fell, thereby injuring himself.
43 In Podrebersek v Australian Iron and Steel Pty Ltd (1989) 59 ALJR 492 Gibbs CJ, Mason, Wilson, Brennan and Deane JJ said in their joint judgment at par 494:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at [16]) and of the relative importance of the acts of the parties in causing the damage; Stapley v Gypsum Mines Pty Ltd [1953] AC 663 at [682]; Smith v McIntyre [1958] TAS SR 36 at [42 – 49] and Broadhurst v Millman [1976] VR 208 at [219] and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
The significance of the various elements involved in such an examination will vary from case to case."
44 In this case I consider that the cycle path was clear and that Mr Hulme failed to keep a proper lookout and made the wrong decision to veer left rather than right when he should have been familiar with the movement of sand given his coastal cycling history. The appropriate apportionment is that the plaintiff's negligence contributed 75 per cent to the circumstances in this case. In view of my findings on the issue of contributory negligence the plaintiff is entitled to 25 per cent of the aggregate award.
Quantum
45 After consideration of the provisions of the Civil Liabilities Act 2004 quantum has been agreed in the sum of $45,000 plus special damages of $2,200. 25 per cent of $47,200, being $11,800 is awarded to the plaintiff.
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46 In light of my findings I make the following orders:
1. Judgment be awarded for the plaintiff against the defendant in the sum of $11,800.
2. The defendant do pay the plaintiff's costs in this action to be taxed if the costs cannot be agreed.
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