Leibbrandt v City of Joondalup - [2025] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LEIBBRANDT -v- CITY OF JOONDALUP [2025] WADC 31
CORAM:   TROY DCJ
HEARD:   28-30 APRIL 2025
DELIVERED          :   30 MAY 2025
FILE NO/S:   CIV 4647 of 2023
BETWEEN:   KIRSTIN MCMILLAN LEIBBRANDT
Plaintiff
AND
CITY OF JOONDALUP
Defendant

Catchwords:

Torts - Negligence - Duty of care - Occupiers' liability - Scooter making contact with fence post at side of pathway - Turns on its own facts

Legislation:

Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr B Bradley
Defendant	:	Mr N F Morrissey

Solicitors:

Plaintiff	:	Lian Hall Injury Law
Defendant	:	DLA Piper Australia - Perth

Case(s) referred to in decision(s):

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Apostolic Church Australia Limited v Dixon [2018] WASCA 146
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512
Carusi v St Mary's Anglican Girls School Inc [2024] WASCA 137
Cavill v The State of Western Australia [2008] WASCA 108
Council of the City of Sydney v Bishop [2019] NSWCA 157
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217
East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147
Gors v Tomlinson [2020] WASCA 164
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hawkesbury Sports Council v Martin [2019] NSWCA 76
M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Marsh v Baxter [2015] WASCA 169
Neindorf v Junkovic (2005) 222 ALR 631
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Port Macquarie Hastings City v Mooney [2014] NSWCA 156
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Taylor v Fisher [2018] WASCA 126
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

TROY DCJ:

Introduction

Late on the afternoon of Friday 7 January 2022, the then 51‑year‑old Plaintiff, Mrs Kirstin Leibbrandt, along with her husband Brian, rode her electric scooter from their home in Kallaroo along a shared dual lane pathway to the Hillarys Harbour Yacht Club where their boat was moored. They travelled in a southerly direction on the left side lane until they passed the Hillarys dog beach carpark area. The pathway at this point was comparatively wide, a total width across both lanes of 4.02 m.[1] At the relevant time, Mr Leibbrandt was ahead of his wife. Both said in evidence that the pathway was busy in both directions.
[1] As per unchallenged evidence of the expert witness for the Defendant at ts 70.
Mrs Leibbrandt heard a bicycle's bell from behind her. She looked behind her to see what was coming and decided to move over to her left so that, on her case, her scooter was positioned at the very far edge of the path, with Mrs Leibbrandt leaning her body and the scooter slightly further again to the left. The Defendant contends that it is more probable that the scooter actually left the path so that it was on a sandy/gravelly surface between the paved area and some bushland. Mrs Leibbrandt asserts that some part of the handlebar of the scooter impacted with a timber fence post, designated 'post 6' for the purposes of this trial. Mrs Leibbrandt then also struck the post and fell to the ground suffering personal injuries.
The Defendant maintains that the exact cause of the accident cannot be established in that Mrs Leibbrandt is the only witness to the accident itself, her credibility is under attack and there is no expert evidence on this point.
The factual issues that arise for consideration are as follows:
•Is Mrs Leibbrandt's credibility adversely affected by inconsistencies as to the amount of alcohol she had consumed and/or the speed that she was travelling?
•What was Mrs Leibbrandt's approximate speed at the time?
•Did her scooter leave the pathway immediately prior to the collision with the post?
•Did the scooter make contact with the post so as to cause the accident?
•If it did, what part of the scooter made contact?
•Given the width of the path and the fact that this section was straight, what significance is there in the fact that post 6 was closer to the pathway then the relevant guidelines stipulate?
The legal issues that then arise are as follows:
•Did the Defendant owe a duty to the Plaintiff, both at common law and statute and what is the nature of that duty?
•What is the relevant risk of harm?
•Was there a foreseeable risk of harm that is not insignificant?
•What precautions, if any, would a reasonable person in the position of the Defendant have taken, in light of that foreseeable risk?
•Did the Defendant's failure to take precautions mean that it breached its duty of care?
•If relevant, did any breach of the duty owed to the Plaintiff cause her injuries?
•If relevant, what degree, if any, of contributory negligence exists?
I proceed on the basis that the position of the posts in relation to the path is as set out in the schedule of agreed facts (Exhibit 4) which replicates page 2 of the expert for the Defendant, Mr Bordbar's supplementary report (Exhibit 14).
Mrs Leibbrandt had passed by five posts (posts 1 ‑ 5) before contacting post 6. There is no dispute concerning the distance between the respective posts and the shared path. The distance from post 1 to the path was 0.8 m, but for post 6 it had reduced to 0.26 m. There is no evidence of the precise distance between the posts.
Mrs Leibbrandt tendered into evidence the Guide to Road Design Part 6A … Paths for Walking and Cycling, 'the Guide', a document issued by Austroads Ltd which is the peak organisation of Australasian Road Transport and Traffic Agencies.[2] On authority, I am not bound by the Guide but it is plainly relevant and potentially persuasive.[3] The Guide states that where fences and other obstacles have smooth features and are aligned parallel to the path, a lateral clearance of 0.3 m absolute minimum should be provided between the edge of any path for cycling and any obstacle. Accordingly, post 6, with its clearance of 0.26 m, did not comply with the Guide.
[2] Exhibit 1.
[3] M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [69] - [70] (Smith v Wyatt).
The only expert evidence put before the court was adduced by the Defendant, namely a Mr Benham Bordbar who is a civil engineer and road safety auditor with some 30 years' experience. He is currently the managing director of Transcore which is a traffic and transport consultancy. In essence, Mr Bordbar's evidence was that the 4.02 m width is the maximum path width outlined in the Guide for the highest type of path, which is termed a recreational path. Although the best practice would be to have a minimum offset of 0.3 m or more, it is the total width of the lane, plus the offset which is available to the path users that is important not just the offset width.[4] He further stated:[5]
Naturally, we use Aus Road Guidelines plus many other guidelines and standard all the time in the day to day activity of our business. Guidelines are guidelines. Nothing more and nothing less.
[4] ts 70 - ts 71.
[5] ts 74.
The Plaintiff says that the Defendant was negligent in that it failed to take certain precautions, in particular by inspecting and measuring the clearance between the edge of the pathway and the posts so as to detect and remedy the danger presented by post 6, so that it thereby breached its duty to take reasonable care for the Plaintiff under s 5(1) of the Occupiers' Liability Act 1985 (WA) (the OLA).
Against that, the Defendant characterises the case in opening written submissions as a case about a person who steered her electric scooter into a wooden pole in daylight and seeks to make this event the fault of the local City.
The photograph that was received as Exhibit 5.1 shows the stretch of the pathway that the Plaintiff was riding along immediately before her accident. The Plaintiff would have been travelling towards the position occupied by the photographer with the fence on her left. It can readily be seen just how straight this stretch of pathway is:
Photograph 5.1

The pathway then bends slightly to the right as can be seen in photographs 5.5 and 5.8:
Photograph 5.5

Photograph 5.8

The accident happened shortly before the path bends to the right. The scooter is positioned next to post 6 in photograph 5.8.
Photograph 5.5 illustrates the posts becoming slightly closer to the path as one proceeds along in the direction taken by the Plaintiff:

Findings of fact

The only witnesses of fact were Mrs Leibbrandt and, to a lesser extent, her husband, Brian. As noted, the only witness as to the crash itself is Mrs Leibbrandt. Mr Leibbrandt immediately came to her aid and gave evidence about the nature of the path, how busy it was that afternoon and where the scooter appears to have impacted. There are no photographs of the scooter in situ immediately following the accident and there is no expert evidence from either side on the issues of precisely where the scooter was when the accident occurred and what part of it (if any) struck post 6.
On 28 April 2025, I acceded to an application, which was neither opposed nor consented to by the Plaintiff, to conduct a view at the scene. A video of the footage taken on a mobile phone at the site on that date was tendered into evidence by consent as Exhibit 10.
Given that there is only a single witness of fact and that there is no expert evidence on the mechanism of the accident, considerations of drawing inferences may well loom large. The process of drawing inferences, for example as to causation, was described by the Court of Appeal in East Metropolitan Health Service v Ellis.[6] As the court recognised,[7] it is well established that causation may be proved by inference. If direct proof is not available, an inference of causation may be drawn if the circumstantial evidence is sufficiently strong and coherent to support a definite inference to that effect. However, before such an inference can be drawn, there must be more than two conflicting inferences of equal probability.[8]
[6] East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147 [264] - [281] (East Metropolitan Health Service v Ellis).
[7] East Metropolitan Health Service v Ellis [264].
[8] As cited in Carusi v St Mary's Anglican Girls School Inc [2024] WASCA 137 [113] (Carusi v St Mary's).
Mrs Leibbrandt's credibility, embracing as it does notions of both honesty and reliability, is important as the only witness to the accident itself. The Defendant has pointed to suggested inconsistencies on two discrete points between her evidence and that which she has said out of court on earlier occasions. It is said that those inconsistencies bear adversely on her credibility. The two areas are the number of alcoholic drinks she had consumed prior to the accident and the speed she was travelling at the time.

The number of alcoholic drinks consumed

Mrs Leibbrandt was asked in cross‑examination:[9]
Q:What, if any, alcohol had you drunk prior to the crash?
A:The hospital said two. I had one gin and soda.
Q:So if the hospital records record that you had consumed two gin and tonics prior to the accident, you'd dispute that?
A:Absolutely.
TROY DCJ:Was that a gin and soda that you made at home or did you have it in a bar for example?
A:It was one that I made at home.
[9] ts 37.
Mrs Leibbrandt's reference to the hospital indicates a familiarity with notes that have been made at the time and which were subsequently tendered as Exhibit 6. This document is entitled, 'emergency department trauma record'. I note that Mrs Leibbrandt scored the maximum of 15/15 on the Glasgow Coma Scale indicating that she was alert and oriented. Her occupation is accurately noted as insurance broker and then it is noted that she had 'two G & T (obviously a reference to gin and tonic) at 1730'.
I was not troubled by Mrs Leibbrandt's knowledge of the hospital notes on this point. In any case where there is an accident involving some form of vehicle the question of whether the user of that vehicle has consumed alcohol is often of considerable importance. In preparing the Plaintiff's case for a trial such as this, the presence of a note suggesting that the Plaintiff had consumed two alcoholic drinks is bound to have caught the attention of those acting for Mrs Leibbrandt and they may have spoken to her about it.
Mrs Leibbrandt continued:
I had one gin and soda. I don't drink tonic. And it was one gin and soda. I had poured a second one, and my husband said, 'Let's go to the boat, rather', so it was left in the fridge.
The cross-examination continued:[10]
Q:Can I suggest to you that you told the hospital staff that you had two gin and tonics?
A:No. I told him (presumably the member of staff who compiled Exhibit 6) exactly what I've told you. He wrote that down.
[10] ts 38.
There is plainly an inconsistency. I do not consider the account that Mrs Leibbrandt had one drink and then poured a second which she then put in the fridge, to be innately implausible as the Defendant suggests in closing submissions. On the other hand, it is reasonable to proceed on the basis that the author of the hospital record would have understood that consumption of alcohol prior to the accident is a relevant matter, there being a specific heading for that matter, and would have taken some care to ensure that the correct amount of drinks were recorded as relayed by the patient.
It is distinctly possible that Mrs Leibbrandt referred to two drinks while she was at the hospital, but did not adequately explain that she had drunk one and then poured a second which she had then put aside for later. It is somewhat of a coincidence that the hospital staff member recorded two drinks rather than one in circumstances where Mrs Leibbrandt had indeed poured a second, albeit unconsumed, drink.
In Cavill v The State of Western Australia,[11] Miller JA noted that in Cross on Evidence the author cites Albrighton v Royal Prince Alfred Hospital[12] where Hope JA made reference to the importance of proof of hospital records. Miller JA then noted:[13]
Significantly, Hope JA in Albrighton referred to the importance of hospital records as a more reliable source of truth and memory and the purpose of the equivalent of s 79C of the Evidence Act 1906 as being, 'to bring into the courtroom a method of establishing the truth which is relied upon by our society outside the courtroom - to bring into the rules of evidence a reality which they otherwise lacked'.
[11] Cavill v The State of Western Australia [2008] WASCA 108 [209].
[12] Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, 548 ‑ 549.
[13] Cavill v The State of Western Australia [210].
In the current issue of Cross on Evidence (14^th Aust ed, 2024) [35195], the learned authors acknowledged the force of some of those points but suggested that they exaggerate the reliability of business records. The authors noted that
persons who have had access to their own records made in hospitals will be familiar with their propensity to error. Numerous mistakes are made in the relation by patient, the hearing and recording by medical professionals and the transcription of what has been recorded into other records.
The Defendant was content to rely on this inconsistency and did not cross‑examine Mr Leibbrandt about any observations that he made of the number of drinks that his wife consumed.
There are several competing inferences. The author of the record accurately noted what his patient told him concerning the number of alcoholic drinks that she had actually consumed. Alternatively, Mrs Leibbrandt told him that she had consumed one gin and soda which he erroneously noted as being two gin and tonics. Or, as I have noted, Mrs Leibbrandt referred to the existence of two drinks, but either did not make it clear or was misunderstood on the point of whether she had touched any of the second drink.
Mrs Leibbrandt was not challenged on the proposition that she drinks soda with gin as opposed to tonic. So, it does appear that an error was made in that respect at least. In the absence of any evidence elicited from Mr Leibbrandt, I do not consider that the evidence of Exhibit 6 is sufficiently strong and coherent to support a definite inference to the effect that Mrs Leibbrandt had consumed two drinks, told the hospital that was the case but then deliberately concealed the fact of the second drink in her evidence.
I am prepared to proceed on the basis of Mrs Leibbrandt's evidence that she consumed a single gin and soda approximately half an hour before travelling on her scooter to the yacht club. Mrs Leibbrandt was not overly defensive on this point, in that she made no attempt to suggest that the measure of gin that she had poured was a notably weak one.
Because Mrs Leibbrandt prepared the gin and soda at home, it is not possible to determine how many alcoholic units were contained within it and therefore it is not possible to make any definitive conclusions on whether or not Mrs Leibbrandt was adversely affected. Intoxication on the pleaded case, however, is not something that is in issue. And so, Mrs Leibbrandt's consumption of alcohol before the accident ceases to be relevant. Her account about consumption of alcohol, as provided to the hospital, does not tell against her credibility.

Speed at the time of the accident

Mrs Leibbrandt's initial evidence was as follows:[14]
TROY DCJ:What speed were you doing at the time, approximately?
A:I'd only just started to speed up, so it would probably be about 15.
Q:15 kilometres an hour?
A:15 to 20, but it ... takes a while for it to come.
Q:And what's the speed limit on this path?
A:25, I think. Yes.
[14] ts 33.
Although at par 2 of the opening written submissions filed on Mrs Leibbrandt's behalf it is said that she was riding at a speed of 10 ‑ 15 km per hour, I do not propose to hold that particular inconsistency against Mrs Leibbrandt.
In cross-examination Mrs Leibbrandt said:
I don't think I would have even made it to 15 because it takes a while for the scooter to pick up pace.[15]
Q:So you're saying you'd slowed down and you were speeding up, so you think you were below 15 kilometres per hour?
A:I would be about 15.[16]
[15] On her evidence Mrs Leibbrandt had slowed as she approached a point on the pathway where people could cross the pathway to her left and her right and was in the process of picking up speed again.
[16] ts 36.
Exhibit 7 is a Ramsay Health Care emergency department triage nursing assessment from 7 January 2022 which recorded at 8.30 pm:
FOOSH off scooter, travelling approx 25 kilometres an hour.
On 10 January 2022, so some three days after the accident, Mrs Leibbrandt consulted her treating plastic surgeon a Dr Sharon Chu. Dr Chu recorded that:
Right handed insurance broker. Fell off scooter and FOOSH on right hand wrist and left elbow and right side of face. Travelling about 20 to 25 kilometres an hour.
Mrs Leibbrandt was cross-examined as to that:[17]
Q:And that is what you told Dr Sharon Chu that day, didn't you?
A:I don't actually - I don't recall that. Sorry, I don't recall exactly what I said to her, but it would have been …. anywhere between 15 and 25 kilometres an hour.
Q:Your evidence previously was that it would have been less than 15 kilometres per hour?
A:I don't believe that at the time, I'm talking about the whole ride. My whole journey would have been between 15 and 25 kilometres an hour. At the time of the accident, I couldn't possibly have been going 25 kilometres an hour because the scooter just doesn't get that fast.
Q:But that is what you told Dr Chu on 10 January 2022, didn't you?
A:I don't recall.
[17] ts 43 - ts 44.

Finally, towards the end of cross-examination Mrs Leibbrandt stated, 'well, I believe it was about 15 to 20, but probably closer to 15'.
Mrs Leibbrandt agreed that riding her scooter at 20 - 25 km per hour would have been an inappropriately fast speed in that setting (given her description of how busy it was) but denied that she had been going that fast.
I found Mrs Leibbrandt's evidence on this point somewhat evasive. In my view, Dr Chu was plainly recording the speed, as related to her, at the time of the accident not at some earlier point on the ride. On two separate occasions, 7 and 10 January 2022, Mrs Leibbrandt advised two treating physicians that her speed at the relevant time was respectively approximately 25 km per hour or about 20 - 25 km per hour. By contrast, at one point in her evidence she suggested that her speed would have been below 15 km per hour. Her evidence on this point was inconsistent. Her conversation with Dr Chu was three days after the accident when it might be expected that the immediate stress following the accident would have receded slightly.
In the absence of any evidence of any device measuring speed, either on the scooter or, for example, on a mobile phone mounted on the scooter and using an application such as 'Komoot', it is not possible to be precise about the speed Mrs Leibbrandt was travelling. But based on the two discrete estimates that Mrs Leibbrandt provided very soon after the accident, I do draw the inference that her speed at the relevant time was indeed of the order of 20 - 25 km per hour. I consider that there was a tendency at this point of Mrs Leibbrandt's evidence to portray the manner in which she was riding the scooter as being somewhat more careful than it actually was. I also consider that her speed was excessive in the circumstances that she has described them to be.

The circumstances of the accident

By that I mean the positioning of the scooter immediately prior to impact and what part of it (if any) made contact with post 6. Again, there are several different possibilities.
Based upon the direct evidence of Mrs Leibbrandt, she remained on the pathway but part of the left side handlebar struck the fence post which dislodged her from her scooter. As I will discuss, for that to have been the position she would have needed to have occupied the far edge of the path and leaned slightly to her left. So much is clear from photograph 5.8:

In considering that possibility, I note that Mrs Leibbrandt would have necessarily leaned to the left in order to bring her scooter towards the far edge of the path to, on her case, permit the cyclist behind her to come through. Having done so, it is not implausible that she was still leaning to the left, even when she got to the far edge of the path but would then have brought the scooter back to the centre.
Another possibility is that she left the pathway itself and lost control of the scooter in the sand/gravel area one can see to the left of photograph 5.8 and thereby crashed without the scooter actually impacting the fence. Given that Mrs Leibbrandt fell to her right sustaining the 'FOOSH' injury to her right hand wrist, it is probable that in that scenario the scooter would also have fallen to the right and come to rest on its side on the pathway. However, in the absence of expert evidence it is not possible to exclude the possibility that whilst Mrs Leibbrandt fell to the right onto the path, the momentum of the scooter was such that it continued on a forward trajectory before embedding itself in the wiring between post 6 and post 7.
Another possibility is that Mrs Leibbrandt left the pathway itself, entered the sand/gravel area and part of the handlebar struck the fence post.
A further possibility, again, is that Mrs Leibbrandt rode towards the fence post at an acute angle so as to strike it essentially face‑on resulting in the damage to the scooter that one can see at Exhibit 9. The damage consists of a scratch to the left fork over the front wheel and a scratch on the mudguard above the front wheel.

The latter would have been the most extreme response to the sound of the bell, and I consider it to be the least likely. Whilst being careful, in the absence of expert evidence, not to speculate, if there had been a head‑on crash I would have expected more damage to have been caused to the front of the scooter.
I note the absence of any documented injuries to Mrs Leibbrandt's left knuckles, which, whilst allowing for the fact that her knuckles would be partially shielded by the brake lever, tells against a more central impact of the left side handlebar.
Mr Leibbrandt was ahead of his wife when he became aware that she had crashed. He obviously returned to her. His evidence was:[18]
Kirstin was lying on the floor next to the post at the time. There was two distinct marks on the wiring and the scooter was hooked up in the fence, which I had to get out.
[18] ts 60.
He did not give any further evidence as to precisely where 'the scooter was hooked up in the fence' and in particular whether it was before or after post 6.
On behalf of Mrs Leibbrandt, Mr Bradley drew from Mr Leibbrandt's evidence a conclusion that after the impact, the scooter continued to move ahead of post 6 until it got tangled up. As I discussed with counsel, however, even if the scooter was indeed tangled with the wiring as Mr Leibbrandt describes (that being the sole evidence on the point), his evidence does not establish that it was at a point beyond, as opposed to before, post 6. There are no photographs corroborating Mr Leibbrandt's evidence that the scooter was 'hooked up in the fence', which he had to get out.
The Defendant submits that Mr Leibbrandt's evidence is more suggestive of his wife hitting the post at more of an angle. It seems slightly surprising that, on either scenario, the scooter entangled itself in the wiring. Mr Leibbrandt does not give enough evidence concerning the positioning of the scooter to support an inference that the far left of the scooter's handlebars struck the post thus causing the accident. It would not have been the focus of his attention. His focus would have been on his injured wife.
Mrs Leibbrandt's evidence about the impact itself was as follows:[19]
A:I moved to the left and then my handlebar just hit the post which I've obviously crunched down with impact and just hit my face on the post, and then I fell to the right.
Q:What part of the post did it (the handlebar) hit?
A:I don't know. It happened so quickly. I just know that it hit the post and spun me round and that caused me to fall.
[19] ts 34 - ts 35.
In cross-examination, Mr Morrissey drew Mrs Leibbrandt's attention to her independent medical examination (on behalf of the Defendant) by a Dr Paul Koo on 12 July 2023. Dr Koo was not called to give evidence at the case. It was put to Mrs Leibbrandt that Dr Koo recorded her summary that she was riding her electric scooter on a bike path when she steered to the left to give way to a bicycle which was coming from behind.
The following exchange occurred:[20]
Q:(referring to the summary), and that's what you told him?
A:Yeah.
Q:(again referring to the summary) 'She states that she was still on the footpath as she veered to the left when the handlebar of the scooter struck a fence post causing her to lose control of the scooter'.
Do you accept that's what happened? That's what you told him?
A:That's what I believe happened.
Q:You turned rapidly to the left is what I'm putting to you?
A:No, that's not veering. You move gently. You veer, you don't turn. You can't just turn a scooter; you've got to veer.
[20] ts 46.
The ordinary English meaning of the verb 'to veer' is 'to change gradually', 'to alter course'. That appears to be the way in which Mrs Leibbrandt used the word, so as to convey the sense of adjusting her weight to her left, to enable the scooter to lean in the same direction in order to provide additional room for the bicycle or bicycles behind her to pass.
I do not consider that this reported interview, as put to Mrs Leibbrandt in cross‑examination, amounts to an admission by her that she turned rapidly to the left.
It was put to Mrs Leibbrandt that she could not have been entirely on the path when she hit the fence post, but she disagreed.
Mrs Leibbrandt was then asked about Dr Koo's note that she told him that she felt her cheek, nose and right shoulder hit the fence post before she fell to the ground. Mrs Leibbrandt disputed that she hit the post with her right shoulder, stating that 'I don't know where he got that from'.[21]
[21] ts 46.
This would appear to be the fourth occasion that a medical practitioner erroneously recorded information conveyed to him or her by Mrs Leibbrandt, albeit I have acknowledged that the first inconsistency, concerning the amount of alcohol consumed could have been a genuine mix‑up.
The inconsistencies concerning her speed and whether or not her right shoulder hit the post are relevant to my consideration of whether she is a credible and reliable historian when it comes to the precise circumstances in which the accident occurred.
Mr Morrissey then asked Mrs Leibbrandt about photograph 5.8. Mrs Leibbrandt stated that she is 5'5'' in height. In metric terms that is 1.65 m. Mr Morrissey put the following propositions from the schedule of agreed facts, namely that the deck of the scooter is 15 cm from the surface and the fence post is about 1.25 m tall. Simple mathematics means that if the scooter was upright, the top of Mrs Leibbrandt's head would be 0.55 m above the top of the post.[22] On that basis it seems probable that the top of her shoulders as well would be higher than the top of the post.
[22] Exhibit 4.
Given that it is also an agreed fact that the handlebars are 48 cm in width, it follows that the distance from the centre point of the handlebars to the extreme left of the handlebars would be 24 cm. It is, of course, a critical factor in this case that the distance from post 6 to the path was 26 cm. It can be seen, therefore, that for there to have been impact with the far left side handlebar and the post, the scooter must have either left the pathway or have been at the very furthest edge, coupled with the handlebar tilted to the left to a sufficient degree to strike the post.
Mrs Leibbrandt denied that it was physically impossible for her cheek to have hit the post. Her evidence was:[23]
My left hand side hit the post, I gripped on for dear life and it swung me around and my face planted on top of the post.
[23] ts 47.
The only recorded head or facial injuries in the emergency department records is (according to Dr Koo at page 3 of his report) a minimally displaced right nasal fracture on the CT scan. There is no reference, even to this injury, in any of the reports tendered into evidence. Dr Koo notes a reference to Perth Radiological Clinic - smashed right cheek against wooden post.[24] Dr Chu noted that on examination Mrs Leibbrandt had a bruised right cheek that was tender on palpation.[25] In my view, if her face had struck the post (as opposed to the path, having broken her fall to an extent with her right hand) in the manner that she describes, discernible injury, going beyond this minimal nasal fracture, would have been inevitable. There are no photographs of any facial injuries. The emergency department trauma record notes a number of injuries to the right wrist, left elbow and left foot but does not note any injuries to the head, neck or face. Further, the box under 'stable midface' is ticked.[26]
[24] Exhibit 8.
[25] Exhibit 8.
[26] Exhibit 6.
The term 'FOOSH' is used in the medical notes on two occasions. I take that as being an acronym which means a 'fall onto an outstretched hand'. I interpret Dr Chu's notes of 10 January 2022 as meaning that she was informed that her patient had fallen onto an outstretched right hand/wrist, left elbow and right side of face.
Mrs Leibbrandt disputed that the damage on the scooter, as depicted in Exhibit 9, is the point of impact with the post.[27]
[27] ts 48.
In discussions with counsel during closing addresses,[28] I identified two possibilities in terms of the point of impact. It could have been the very end of the left handlebar or it could have been the front of the handlebar but on the left hand side that made contact with the post. Although I stated that 'the former would suggest closer proximity to the fence post than the latter', it is, in fact, the reverse.
[28] ts 109 - ts 110.
As already noted, a further possibility is a more frontal collision, but I consider that to be unlikely. Another possibility, again, is loss of control on the gravel without striking the post.
Similarly, as discussed, there are two possibilities in terms of the positioning of the scooter at the point of impact. It could have been at the very far edge of the path, with Mrs Leibbrandt leaning her body and the scooter slightly further again to the left, or it could have been that the scooter actually left the path so that it was on that sandy/gravelly surface.
I apply the principles I identified at [18] above.
Mrs Leibbrandt gave no evidence as to what part of her handlebars impacted with the post although she did, as noted, maintain that she never left the path.
Mr Morrissey submits that it does not make sense that if the far outer edge of that scooter made contact with the handlebar, that Mrs Leibbrandt would have found herself wrapped around the post so that she hit her head on the post. If the scooter wheel was still on the path it is submitted that the scooter (which I have found was travelling at 20 - 25 km per hour) would have kept moving forwards. The handlebar might have buckled, but Mrs Leibbrandt would not have had a forceful frontal impact as she appears to have reported (in the now disputed conversation) to Dr Koo. Nor would the scooter have become tangled up in the fence as described by Mr Leibbrandt.
The Defendant submits that the damage in Exhibit 9 is more consistent with a more central and frontal impact. I have expressed my doubts as to that.
I consider it unlikely that Mrs Leibbrandt had the facial impact with the post as she describes. I have found her to be unreliable in terms of her evidence of speed. I think it unlikely that the impact was with a more central part of the handlebar given the absence of any injuries to her left knuckles.
I consider the most likely contingency to be that the point of impact was with the far left of the handlebar.
I am not in a position to determine whether the scooter actually left the path or whether it was on the extreme edge of a 4 m wide path with Mrs Leibbrandt leaning outwards. Each is possible.

Mrs Leibbrandt's decision to move to the left

Mrs Leibbrandt had taken up cycling in a serious way in about 2013. She got her own scooter in 2021 and would use it most weekends.[29]
[29] ts 29.
When Mrs Leibbrandt heard the bell ring, she looked behind her to see what was coming and decided to move over to her left to allow the bicycle(s) to go past. She moved her weight slightly to the left to do so.[30]
[30] ts 32.
In answer to a question I posed, she said:[31]
I am a cyclist, and when I ring a bell, people in front - the slower traffic moves over to give way to the faster traffic.
[31] ts 42.
Mrs Leibbrandt elaborated that when she rings a bell as a cyclist, she does so to indicate that she is a faster vehicle coming through, as well as alerting the other person of her presence.[32]
[32] ts 42.
I had the benefit of viewing the site. The width is such that I do not consider that the sound of a bell from behind could have reasonably caused Mrs Leibbrandt to conclude that she had to move to the far left part of the path. I am satisfied that Mrs Leibbrandt was not required to move to the left of the pathway as opposed to simply hold her position. Nor was it necessary for her to look over her shoulder, which in my view would have been a somewhat dangerous thing to do. Given my findings as to Mrs Leibbrandt's speed, any cyclist closing in on her from behind and moving to overtake her would have been travelling at an unreasonably high speed. This is a mixed‑use footpath which undoubtedly would be covered by a maximum limit and which was busy at the time.
I am comfortably of the view that the appropriate response, assuming that there was a cycle bell from behind Mrs Leibbrandt, would have been to maintain speed and hold position. Instead, as I have found, Mrs Leibbrandt, whilst travelling at 20 ‑ 25 km per hour took up a position so that she either left the path and rode along the sand/gravel section or occupied the extreme edge of a 4 m wide path whilst leaning outwards. In so doing, she struck the fence post.

The construction of the path and the Guide

In 2016 the Defendant established and published its bike plan 2016 - 2021 which I received as Exhibit 2. Page 12 of the plan notes:
The design and construction of bike infrastructure must be done in accordance with methods that are published in Austroads including Cycling Aspects of Austroads Guides, which is a guide for engineers, planners, and designers involved in the planning, design and construction of bike facilities and infrastructure.
I have referred to the Guide. At page 51 (by reference to the pagination in the Plaintiff's book of documents) it is said to provide guidance for designers and other practitioners in the design of paths for safe and efficient walking and cycling, both within the road corridor and outside the road corridor.
The Guide begins[33] with the following statement:
This guide is produced by Austroads as a general guide. Its application is discretionary. Road authorities may vary their practice according to local circumstances and policies. Austroads believe this publication to be correct at the time of printing and does not accept responsibility for any consequences arising from the use of information herein.
[33] Guide, page 52.
At 5.5.2 it states:[34]
The following guidelines should be applied for clearances between the cyclist operating spaces and potential hazards beside paths:
•Where the areas beside the path and the path alignment are both relatively flat a lateral clearance of at least 1.0 metres (0.5 metres absolute minimum) should be provided between the edge of any path for cycling and any obstacle, which, if struck may result in cyclists losing control or being injured.
…
Obstacles beside paths include bushes, culverts end walls, trees and large rock used for landscaping. Provided the design and treatments are appropriate, or where extenuating circumstances exist, a lesser clearance may be acceptable for fences and other obstacles which have smooth features and are aligned parallel to the path (0.3 metres absolute minimum).
[34] Guide, page 91.
In Smith v Wyatt Pullin JA noted that the trial judge held that the stairs that the Plaintiff had fallen down were noncompliant both with the Building Code of Australia 1988, compliance with which was required by Building Regulations, and an Australian Standard. His Honour held that the trial judge erred in concluding that the stairs were noncompliant with the Building Code and that the Australian Standard had no application.[35] Murphy and Newnes JJA agreed.[36]
[35] Smith v Wyatt [2] - [3].
[36] Smith v Wyatt (Murphy JA specifically [146]).
As Pullin JA held:[37]
Standards published by Standards Australia have no legal application unless adopted and applied by statute or by contract.
However, even if there is no statutory or contractual application of an Australian Standard, it may still be relevant in evidence if it is accepted as representing a consensus of professional opinion and practical experience about sensible, safe precautions. In that way, an Australian Standard can assist the court in determining whether some aspect in the construction of a building constitutes a danger which must be guarded against by the exercise of reasonable care … Failure to follow a standard does not, without more, establish negligence … It is for the court to adjudicate upon what is the appropriate standard of care. Even compliance or noncompliance with statutory construction requirements will not be determinative of the issue about whether reasonable care has been taken. (citations omitted)
[37] Smith v Wyatt [69] - [70].

It is not contended that the position is any different when one considers the Guide. I apply the principles as enunciated by Pullin JA.
The Defendant also called Mr Peter Ross, the senior civil projects officer at the City of Joondalup. In respect of the works for this pathway he stated that the project scope was to reconfigure the car park and move the path to the opposite side, to the eastern side of the car park. In 2019 he was required to procure contractors to do the work for the Hillarys Dog Beach car park project and construct as per the plan.
Mr Ross' recollection was that on completion of the works the contractor would have re‑surveyed and submitted an as‑constructed plan. It conformed with the digital format given to the contractors and so was compliant.[38]
[38] ts 94.
Mr Ross said that he would have seen the posts in Exhibit 5 (including therefore post 6) going in, but he played no role in looking to see if the posts were sufficiently distanced from the edge of the pathway.[39]
[39] ts 96 - ts 97.
Mr Bordbar spoke to his two reports, Exhibits 13 and 14. As noted, he testified that it is the total width of the lane plus the offset which is available to users that is important and not just the offset width. (Obviously), the rider uses the path; he/she doesn't ride on the offset. The width of this path was at the maximum by reference to the Guide.[40]
[40] ts 74.
Mr Bordbar continued:[41]
They (any guidelines) are there to provide some level of guidance and therefore the engineer makes judgment that how those guidelines should be applied in any particular case. Guidelines are obviously useful to provide a guide, but it doesn't mean that anything and everything you do will always be to the nth degree in accordance with the guidelines.
[41] ts 75.
Mr Bordbar stated that usually fences are applied to provide visual guidance to a path user in terms of the alignment of and the extremity of the path as well as protecting (a cyclist) if he or she is out of the path for whatever reason, for example from a drop.
Mr Bordbar gave examples of other pathways where, despite the minimum offset suggested by the Guide there is no offset to the fence:[42]

[42] Exhibit 13, page 17.

With respect to Figure 7, Mr Bordbar observed that the practitioner had a certain width to work with, and they chose to allocate all that width to the path. He testified that:[43]
The important message from that image is that it is important to have as much width as possible for the path itself.
[43] ts 76.
Mr Bordbar's overall conclusion was that the design of this path is comfortably within the width range specified by the guidelines.[44] In fact, the overall width is close to the upper end of the range. He contended that there are a range of elements that need to be considered other than just the width of the path. The path in that direction is relatively straight, so that the visibility and sightline for a rider travelling on that path is excellent. The width of the lanes is at the maximum level and so provides a very comfortable width for a rider to ride within, and also to manoeuvre out of the way if they need to do so. Two metres width for each lane gives a rider plenty of space to ride and manoeuvre under any circumstance.
[44] As expressed at ts 78.
In cross‑examination Mr Bordbar did not accept the suggestion that the minimum offset as set out in the guideline is what should be done in practice in every instance. That is because site constraints and conditions dictate what can be done. The guideline is a starting guidance, and then the practitioner would apply that guideline to a particular site and consider the constraints and conditions of that site.[45]
[45] ts 81.
The Plaintiff did not call any evidence to the contrary and as noted I apply the principles set out at [92] of these reasons.
Dealing with the question of what should be done to prevent the chance that someone may take their bicycle onto the edge, Mr Bordbar considered that if a rider has found themselves in the sand/gravel within the offset area, it would follow that they are out of control or have, at least, made a misjudgement. He stated that the 4 cm difference in offset between the offset available and the minimum offset suggested by the guideline would not have any influence on the outcome. Further, if the rider was on the very far edge of the path, they could only hit a post if the rider was not upright.[46]
[46] ts 90.
I accept Mr Bordbar's evidence that in considering any alleged failure by the City, it is the total width of the lane plus the offset which must be considered not just the fact that it is noncompliant with an advisory Guide.

Summary of background and factual findings

The Plaintiff, Mrs Leibbrandt, was riding her electric scooter along a busy multi-use shared pathway at approximately 20 ‑ 25 km per hour. It was a notably straight stretch and it was broad daylight. The path is the maximum width for such pathways. Mrs Leibbrandt heard a bell behind her. Rather than hold her position, she moved to the far left edge of the pathway, so as to either leave the path entirely or occupy the extreme left and at the same time lean further to her left. In so doing, the most likely contingency is that the end of her handlebar struck post 6 causing her to fall off.
It is clearly relevant that the configuration of the path at this section is such that post 6 could have been set somewhat further back from the path, but the fact that it was closer than the Guide stipulates is not determinative.
Whilst also not determinative, this is the only known accident on this stretch of path since September 2019. The Defendant called Ms Debra Edgar to testify that she undertook a search from 1 January 2019 to 7 January 2022, for a total of 1,028,000 records such as Hillarys Dog Beach revealing nothing relevant to this case. From 7 January 2022 to 4 April 2025, she did find some records, but they were all records in relation to this case.[47]

Duty of care

[47] ts 99.

I turn to the question of the applicable legal principles. The proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care.[48]
[48] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [18] (Gummow J) (Dederer).
The Plaintiff pleads that the City owed a duty of care to Mrs Leibbrandt, both at common law and under the OLA.
The Defendant did not dispute that it was at the material times the 'occupier' as defined by s 2 of the OLA having the duty established by s 5(1). The Defendant has not suggested that it did not owe a duty both at common law and at statute. It notes that applying s 5(2) of the OLA, that duty of care does not apply in respect of risks willingly assumed by the person entering on the premises.
I am satisfied that the City owed a duty of care to Mrs Leibbrandt, both at common law and under the OLA.
At common law (that is, apart from contract and statute) an occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises.[49] On the Plaintiff's case, the relevant 'condition of the premises' is the proximity of the posts to the path, in particular post 6.
[49] Department of Housing and Works v Smith[No 2][2010] WASCA 25; (2010) 41 WAR 217 [55] (Buss JA) (Department of Housing v Smith).
Section 4 of the OLA provides, relevantly, that s 5 is to have effect, in place of the rules of the common law, for the purpose of determining the care required of an occupier of premises.
Section 5 of the OLA provides, relevantly:
(1)… the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2)The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.
(3) …
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to ‑
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

In Department of Housing v Smith[50] Pullin JA stated:[51]
… it is unnecessary for me to decide in this case whether the provisions of the OLA or the CLA reflect, supplant or modify the common law because both parties were in agreement that there would be no different result whether the common law or the CLA (or the OLA) was applied, neither party made any submissions at all about the interaction and relationship between the CLA and the OLA or about whether the common law continues to apply and because I agree that there would be no different result.
[50] Department of Housing v Smith [55] (Buss JA).
[51] Department of Housing v Smith [20].
Buss JA was not prepared to proceed on the basis that it was unnecessary to determine the correct interaction between the common law, the OLA and the Civil Liability Act 2002 (WA) (CLA) because the outcome of the appeal would not be affected by whatever principles or combination of principles were applicable.[52] Buss JA held[53] that s 5B of the CLA relates to breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not.
[52] Department of Housing v Smith [55].
[53] Department of Housing v Smith [77].
Buss JA held that the criteria in s 5(1) and s 5(4) of the OLA must be read with s 5B of the CLA. In the factual scenario in Department of Housing v Smith there was no relevant inconsistency between the criteria in s 5(1) and s 5(4) of the OLA on the one hand and s 5B of the CLA. It was unnecessary to consider how any such inconsistency (if it were to emerge in any other case) should be resolved.[54]
[54] Department of Housing v Smith [85].
In Taylor v Fisher Martin CJ noted:[55]
The trial judge also referred to other decisions of this court relating to the relationship between the Civil Liability Act, the Occupiers Liability Act, and the duty of care at common law. However, as both parties to this appeal were content to present their arguments on the basis that, in the circumstances of this case, there were no material differences between the statutory and common law duties, it is unnecessary to explore those issues.
[55] Taylor v Fisher [2018] WASCA 126 [25].
In Gors v Tomlinson the court noted:[56]
it was not suggested the application of the criteria in s 5 of the Occupiers Liability Act would yield any different result to the application of s 5B of the Civil Liability Act. Indeed, the appellant submitted at trial that there was no real difference between the two sets of provisions. There was said, in this case, to be no tension between the respective criteria - meaning this was a case where, accepting that the criteria in ss 5(1) and (4) of the Occupiers Liability Act must be read with s 5B of the Civil Liability Act, there was no relevant inconsistency between the criteria in their application to the facts and circumstances of this case.
[56] Gors v Tomlinson [2020] WASCA 164 [24] (Quinlan CJ, Murphy & Vaughan JJA).
It is not suggested in the present case that there is any inconsistency between these criteria.

Risk of harm

The identification of the risk of harm to which the provisions of s 5B of the CLA are to be applied is of central importance. As Gummow J observed in Dederer[57] it is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be. The CLA, by various provisions which focus on the risk of harm (including s 5B), crystallises that position.[58]
[57] Dederer [59].
[58] Carusi v St Mary's [70].
The relevant risk of harm is as pleaded at par 5 of the amended statement of claim:
At all material times on and before 7 January 2022 there was a significant risk that a person riding a scooter or bicycle in a southerly direction in the east side lane of the new pathway might suffer personal injury if the Defendant did not take reasonable precautions to prevent the person from colliding with post 6.
The reasonable precautions are identified at par 7 of the amended statement of claim.
There is no single correct way of describing the risk of harm.
The formulation of the risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.
Necessarily, the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred.
What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, either because it obscures the true source of potential injury, or too narrowly focuses on the particular hazard which caused the injury or fails to capture part of the Plaintiff's case.[59]
[59] Carusi v St Mary's [71].
The court in Carusi v St Mary's considered that the danger of focusing too narrowly on the particular hazard which caused the injury was illustrated by the decision of the New South Wales Court of Appeal in Port Macquarie Hastings City v Mooney.[60]
[60] Port Macquarie Hastings City v Mooney [2014] NSWCA 156 [72].
As noted[61] an overly particular formulation of the risk of harm can unduly favour the Defendant by effectively requiring the Plaintiff to show that the precise way harm was suffered was reasonably foreseeable. On the other hand, it might unduly favour the Plaintiff at the stage of ascertaining the precautions which a reasonable person in the Defendant's position would take. The court might underestimate the burden of taking precautions to avoid the risk of harm, by looking to the cost of dealing with a specific issue rather than the precautions required to remove or reduce a broader risk. Too narrow a focus can detract from the required prospective assessment of what a reasonable person would have done before the accident occurred.
[61] Port Macquarie Hastings City v Mooney [73].
Applying Carusi v St Mary's, I consider that the risk of harm as pleaded is too closely tied to the alleged circumstances of Mrs Leibbrandt's accident. In my view the relevant risk of harm is the risk of a wheeled vehicle,[62] as operated by an outdoor pathway user, making contact with the fence or parts of it, when travelling on the pathway and suffering personal injury.

Was that risk of harm foreseeable and not insignificant?

[62] Such a term including bicycles and scooters.

Was it foreseeable and not insignificant that a bicycle or a scooter operated by a person using this pathway might make contact with this fence or parts of it so as to cause the rider personal injury?
The common law test for foreseeability has been described as 'undemanding'. It has not been necessary to consider whether, or to what extent, the statutory test imposed by s 5B(1) of the CLA - namely, that the risk be 'not insignificant' imposes a more demanding test.[63]
[63] Taylor v Fisher [34]; Marsh v Baxter [2015] WASCA 169 [714] (Newnes & Murphy JA).
As Martin CJ noted in Taylorv Fisher,[64] in Wyong Shire Council v Shirt[65] Mason J described a risk of injury as being foreseeable if it was 'not far-fetched or fanciful'. He observed:[66]
[F]oreseeability of the risk of injury and the likelihood of that risk occurring are two different things … [C]onsequently, 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.
[64] Taylor v Fisher [33].
[65] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.
[66] Wyong Shire Council v Shirt (47).
In my view, it was foreseeable and not insignificant that a bicycle or a scooter might make contact with this fence or parts of it, so as to cause its rider personal injury. The posts, in particular post 6, are fairly substantial structures, standing 1.25 m high, continuing along the entirety of this stretch of the path and positioned relatively close to the path. A person striking such a structure whilst travelling at a speed of 15 - 25 km per hour would almost certainly be dislodged and thereby sustain injury. That risk of injury is one which a reasonable person in the position of the City ought to have known.
The lack of prior or subsequent incidents is relevant but does not result in a different conclusion. An injury does not need to be likely to occur or exceptional for the risk of that injury to be foreseeable and not insignificant. Those are matters which may go to the perception which a reasonable person in the City's position would have of the magnitude of the risk of harm and the precautions against that risk which the reasonable person would take.[67] I will turn to that aspect next.
[67] Carusi v St Mary's [82] (Mitchell, Hall & Van Dongen JJA).
In this case, for the purposes of s 5B(1) of the CLA:
•the precautions which, a reasonable person in the City's position should allegedly have taken, as set out at [144] below were to construct, or if necessary, move the fence posts by the side of this pathway so that they were at least 0.3 m from the pathway, or to warn users of the pathway that post 6 in particular was closer than that distance;
•the risk of harm is the risk that is the risk of a wheeled vehicle, as operated by an outdoor pathway user, making contact with the fence or parts of it, when travelling on the pathway causing the rider to suffer personal injury;
•the harm caused is Mrs Leibbrandt's scooter striking the post causing her to fall and sustain injury.

Breach of duty

In Department of Housing v Smith[68] in a passage which is often cited, Buss JA set out some 'well‑established propositions' concerning the notion of a 'reasonable person' and the standard of 'reasonableness' generally, under the common law of negligence, which remain relevant in considering cases of alleged breach of duty by an occupier:
First, the determination of what, if anything, a reasonable person in the occupier's position would have done involves an assessment of what would have been reasonable and practicable for the occupier to have done. Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Thirdly, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness. (citations omitted)
[68] Department of Housing v Smith [87] (Buss JA).

These propositions are not inconsistent with the criteria in s 5(1) and s 5(4) of the OLA or with s 5B of the CLA. The fourth and fifth propositions reflect the provisions of s 5B(1)(b) of the CLA.[69]
[69] Department of Housing v Smith [88].
Section 5B of the CLA provides as follows:
5B.General principles
(1)A person is not liable for harm caused by that person's fault 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.
In determining whether a reasonable person would have taken precautions against a risk of harm the necessary inquiry 'requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury' (original emphasis).[70]
[70] Marsh v Baxter [719] (Newnes & Murphy JJA, citing the observations of Gummow and Hayne JJ in New South Wales v Fahy[2007] HCA 20; (2007) 232 CLR 486 [57]).

Precautions which a reasonable person would take

As noted in Carusi v St Mary's, the critical issue in many negligence cases, is concerned with the identification of the precautions, if any, which a reasonable person in the position of the City would have taken against the relevant risk of harm.[71]
[71] Carusi v St Mary's [84].
The reasonable precautions identified at par 7 of the amended statement of claim are:
[1]inspecting and measuring the clearance between the edge of the new pathway and the posts so as to detect and remedy the danger presented by post 6,
[2]seeing that in the design and construction of the new pathway its eastern edge was at least 0.3m clear of each post,
[3]carrying out works to increase the clearance between the eastern edge of the new pathway and post 6 to at least 0.3m, or re‑aligning the posts so that post 6 was at least 0.3m clear of the eastern edge of the new pathway, and
[4]highlighting post 6 in a bright colour to make persons using the new pathway aware of it and its proximity to the eastern edge of the shared pathway.
Essentially the Plaintiff contends that the fence should have been constructed in compliance with the Guide so that none of the posts, in particular post 6, would be closer than 0.3 m to the pathway. Alternatively, the fact that the posts were in breach of the Guide should have been detected during an inspection and rectified and that until such time that the hazard, as identified, had been rectified, one particular post should have been painted so as to draw the attention of path users to it and the potential hazard that it posed.
The Plaintiff submits that there was no reason why post 6 could not have been positioned at least 30 cm from the edge of the pathway as were posts 1 ‑ 3 and 7 ‑ 12. There was bushland immediately to the north of the pathway.
The Defendant submits that the precautions required by the Plaintiff in this claim would be to strictly measure every object beside pathways to ensure they are offset by not less than 30 cm. By extrapolation, this could require every outdoor pathway in Australia to be remeasured and re-engineered to ensure a 30 cm setback from the path. In reality this is not practicable and not consistent with reasonable care, particularly where the presence of objects and barriers within 30 cm of pathways are extremely common in the outdoors.
Where the Defendant is a local council responsible for 927 km of outdoor pathways,[72] the steps it would have to take to alleviate against the risk of harm would be overly burdensome and are not reasonable. This is particularly so where there were no prior incidents or complaints made about the relevant path or fence post.
[72] Exhibit 4, agreed fact No 7.
I apply the following relevant observations of Gleeson CJ in Neindorf v Junkovic:[73]
8… The expression "reasonable response in the circumstances" raises a question of normative judgment which has to grapple with all the practical problems that the law had earlier attempted to solve in the [more prescriptive] manner described by Professor Fleming. … The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. That problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant. Yet the problem remains.
9… Reasonableness, however, is not a matter of legal prescription. …
…
14The response of most people to many hazards in and around their premises is to do nothing. The legislature has recognised, and has reminded courts, that, often, that may be a reasonable response. Whether, in any particular case, it is a reasonable response is not a matter of legal doctrine. It is not a question of law. It is a question that, historically, courts committed to juries as a question of fact. Judges will have their own opinions about reasonableness, but they are not opinions of law.
[73] Neindorf v Junkovic (2005) 222 ALR 631.
I remind myself that the requirement is reasonableness, not some stringent requirement of prevention.[74]
[74] Dederer [69].
Proper enquiry at the breach stage involves identifying with some precision what (if anything) a reasonable person would do by way of response to the foreseeable risk.[75]
[75] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [192].
As noted, it is fundamental that the question of whether a Defendant breached its duty to exercise reasonable care is to be approached prospectively, not with the benefit of hindsight.[76] The steps which could (and, it will be said, should) have been taken by a Defendant appear so much more obvious than they might have, had the matter been considered as a hypothetical future possibility.[77]
[76] See authorities gathered in Apostolic Church Australia Limited v Dixon [2018] WASCA 146 [61].
[77] Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 (Ghantous) [309] (Hayne) and Neindorf v Junkovic [97] referred to at [187] of these reasons.
In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council[78] the High Court considered two separate appeals from the Court of Appeal of New South Wales. I will focus on the (unsuccessful) appeal brought by a Mrs Ghantous.
[78] Ghantous.
In that case, Mrs Ghantous tripped and fell while walking along a concrete footpath. Since the original construction of the footpath, which was not shown to have been negligent in any respect, erosion had resulted in subsidence of the earth in some places, so that the verge was about 50 mm below the concrete. When she stepped aside to allow other pedestrians to pass, she placed her foot so that it was partly on the concrete and partly on the lower verge. This resulted in her fall.
I remind myself of the relevant principles from that case as well as from Thompson v Woolworths (Qld) Pty Ltd[79] which I consider to apply here.
[79] Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 (Thompson).
A proper starting point may be the proposition that the persons using the pathway will themselves take ordinary care.[80]
[80] Ghantous [160] (Gaudron, McHugh & Gummow JJ).
In my view, the present matter is not a case where the posts cannot easily be seen or avoided by a path user.
The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the relevant authority (which includes here the maintenance of 927 km of outdoor paths).[81]
[81] Ghantous [162].
It is important, in formulating the duty, to do so in terms which require that a path be safe not in all circumstances but for users exercising reasonable care for their own safety.[82]
[82] Ghantous [163].
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 or the surrounding area. In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or 'of a kind calling for some protection or warning'.[83]
[83] Ghantous [163].
Local authorities are not insurers for the absolute safety of pedestrians or other users of roads and footpaths.[84]
[84] Ghantous [248] (Kirby J).
The tort of negligence is not intended to provide universal protection against the consequences of injury. The basic purposes of the law in this area include promoting reasonable conduct and reflecting fundamental notions of individual responsibility. But the pursuit of those purposes, in the case of statutory authorities, must accommodate not only the fact that authorities are the creature of legislation, but also the fact that authorities of this kind fulfill public functions.[85]
[85] Ghantous [315] (Hayne J).
The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.[86]
[86] Ghantous [355] (Callinan J).
Here, there was no concealment of the posts. They were all plain to be seen. The Defendant's duty, both at common law and as occupier is not and cannot be to make the outdoor pathway perfectly safe in all circumstances where outdoor pathways will inevitably have objects adjacent to them which will pose a risk of injury to a person (such as the Plaintiff) who is not taking reasonable care for his or her own safety.
When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment which may depend upon the circumstances of the case.[87]
[87] Thompson [35].
The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response.[88]
[88] Thompson [36].
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.[89]
[89] Thompson [37].
In Hawkesbury Sports Council v Martin[90] Meagher JA and Emmett AJA noted at [2] that the respondent tripped and fell on a steel cable strung between low timber posts which formed a cable fence separating a car-parking area from some playing fields. Immediately behind that cable fence and closer to the playing fields was a row of large white or light grey concrete blocks extending over a distance of about 40 m.
[90] Hawkesbury Sports Council v Martin [2019] NSWCA 76.
The respondent's case was not that the post and cable fence was itself dangerous, but that when the row of concrete blocks was later added, they had the likely effect of distracting the attention of someone seeking to gain direct access from the car park to the playing fields from the continuing presence of the steel cable. Specifically, it was said that the positioning of the concrete blocks created the impression that access could be gained to the playing field through one or more of the spaces between them, and for someone doing so the shading from overhead trees and the similarity between the colour of the cable and the brown earth and gravel in shade made it difficult visually to detect the cable from the earth.
As noted at [11], the primary judge found that there was no evidence of any previous injury involving the cable. The primary judge considered that there was no requirement on the Council in the circumstances of their responsibilities to warn anyone of the existence of the cables. This was not a precaution that was reasonably required. The photographs suggested that the cable could be seen.
Their Honours held at [37] that the questions for the primary judge involved an assessment of the possibility of someone tripping on the cable and injuring themselves because they were not aware or conscious of its existence as they sought to negotiate their way between the concrete blocks. In assessing the significance of that risk and what a reasonable person would have done by way of precaution to avoid it, the matters to be considered (citing Thompson) included the obviousness of the risk, and the remoteness of the likelihood that other people would fail to observe and avoid it.

Conclusions

I regard the concept of failure to have regard for one's own safety to be synonymous with the concept under s 5(2) of the OLA of risks willingly assumed by the person.
The gravity of the probable injury that would be occasioned by a collision with the post would be variable depending on speed, whether any part of the rider's body itself struck the post and the ability of the rider to break his/her fall.
This was a public footpath that Mrs Leibbrandt, like many others that day, was entitled to use. Its purpose was to facilitate recreational use in a variety of ways. Its width and absence of sharp turns were such that its nature was safe, save for the proximity of the posts. The City would clearly have expected scooter riders such as Mrs Leibbrandt to use the path. That was, as I say, part of its purpose. Mrs Leibbrandt's age is irrelevant. I find that Mrs Leibbrandt had an ability to appreciate any danger posed by the post. The burden on the City in eliminating the danger of post 6 by moving it by 4 cm is individually low, but that burden has to be assessed in the context of a like responsibility for all such posts over such an extensive network.
I bear in mind contemporary standards within the community but I do not consider this to be a case where placing a post 26 cm from a 4 m wide and straight path, say 20 years ago was acceptable, but in 2022 was not.
I consider what, if anything, a reasonable person in the City's position would have considered, looking forwards and not with hindsight to be reasonable and practicable for the City to have done if they observed the section of path that one sees in Exhibit 10. The occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
In my view, assuming that a person in Mrs Liebbrandt's position was exercising reasonable care for his/her own safety, making any contact with post 6 was an extremely unlikely occurrence if considered prospectively. I consider that the proximity of post 6 to the pathway was not a hazard to users taking care for their own safety.
The fact that the posts could have been constructed at a greater distance from the pathway or could later have been moved is not a basis for finding negligence even if that would have prevented the accident. The failure to take action before an accident which may have prevented an injury is not a basis for reasoning towards a finding of negligence. That kind of reasoning falls into the erroneous approach of looking at an accident in hindsight rather than determining what action a Defendant was reasonably required to take before the accident happened.[91]
[91] Smith v Wyatt [102].
What is plain from the photographs and from my view of the site, is that someone using reasonable care for their safety could not travel along this path without also noticing the fence posts.
Whilst there is nothing to suggest that the fence was not installed by reputable contractors, I accept that, unlike Carusi v St Mary's, it did not strictly comply with the relevant code/Guide.[92]
[92] Carusi v St Mary's [89].
Comparatively, however, with Carusi v St Mary's the City did not record any incidents which would call for the posts to be moved in a period of three years prior to Mrs Leibbrandt's accident.[93]
[93] Carusi v St Mary's [90], albeit that the period there was 15 years.
The mere absence of previous accidents is not determinative, but it is relevant. The lack of any previous (or subsequent) accident supports a contention that the position of the posts did not constitute a danger which required some response from the City.[94]
[94] Smith v Wyatt [101].
Critically, in my view, if a person using a bicycle or a scooter on this pathway was travelling in an orthodox fashion, the posts, even at the proximity of post 6, did not cause any potential danger. It was only because Mrs Leibbrandt, for no sufficient reason, either occupied the very far left of the path whilst simultaneously leaning even further to her left or actually left the path altogether that the accident occurred.
This is a case where the Plaintiff relies very heavily, if not exclusively, on the fact that this post was 26 cm from the path whereas the Guide states that it should be at least 30 cm. I have no difficulty in accepting Mr Bordbar's evidence that it is the total width of the lane plus the offset which must be considered. This particular path is at the maximum width and, as I observed on the site visit, straight. Whilst post 6 was noncompliant with the Guide, that does not equate, in itself, to a breach of duty.
I also apply the following observations of Hayne J in Neindorf v Junkovic[95]citing (in part) Vairy v Wyong Shire Council:[96]
This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight. Nor is it to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to take those measures?
[95] Neindorf v Junkovic [93].
[96] Vairy v Wyong Shire Council [2005] HCA 62.
In asking whether it would have been reasonable for the City to take any of these measures, that question must be examined from the proper perspective, without knowing what in fact happened to the Plaintiff.[97]
[97] Neindorf v Junkovic [96].
As Hayne J stated in Neindorf v Junkovic:[98]
It is only when the particular event of the respondent's stumble is known to have happened that it appears reasonable to take steps to reduce or eliminate the danger presented by unevenness in the driveway surface.[99] Only with that knowledge does it appear reasonable to point out or cover that irregularity. But that is to look at the problem with hindsight. That is not the question the statute (or the common law) presents. That question is what would have been the reasonable response of the occupier before the accident happened.
(footnotes omitted)
[98] Neindorf v Junkovic [97].
[99] Here to move a post back by 4 cm.
While the risk of a person's bicycle or scooter striking a fence post so that the person suffered personal injury was foreseeable and not insignificant, the risk was very low, if one was exercising reasonable care for one's own safety.

The presence of these posts was an obvious risk for a reasonable person in the position of Mrs Leibbrandt, in circumstances where she had been riding along the same coastal cycleway for some kilometres, with posts all the way along, on a significantly wide path and in broad daylight. The posts, including post 6, were obviously visible. The presence of these posts is something that would be expected of an ordinary outdoor pathway.
In considering if there was a duty to warn pursuant to s 5O of the CLA, I consider that the risk of striking a fence post if one wandered off the path or occupied a position on the extreme edge was an obvious risk as defined by s 5F that required no warning.
The obviousness of a risk is relevant in determining whether any response is required in relation to that risk. It was obvious that there were posts off to the side of the path. As was the case in Smith v Wyatt, their presence was so ordinary and so visible, that reasonableness did not require any action on the part of the City.[100]
[100] Smith vWyatt [103].
Applying s 5P of the CLA, for the same reasons, the harm suffered by Mrs Leibbrandt is the result of the occurrence of something that cannot be avoided by the exercise of reasonable skill and care by the City.
Any contrary conclusion could only be reached in hindsight, with knowledge of the very unusual way in which Mrs Leibbrandt suffered her injury.
The question is not whether the posts should have been constructed further back or subsequently moved further back so as to obviate the risk of injury to Mrs Leibbrandt, but whether, viewed prospectively at the time of construction, a reasonable response to the risk of injury to users of the pathway required the Defendant to install the posts at this section in strict conformity with the Guide.[101]
[101] Taylor v Fisher [106] (Murphy & Beech JJA).
The obviousness of the risk and the remoteness of the likelihood that others will fail to observe it and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response to a foreseeable risk.[102]
[102] Taylor v Fisher [107].
The presence of the fence was obvious and of a kind commonly adjacent to shared pathways throughout Australia. The pathway was 4 m wide and as such there was no need for users of it to ride, walk or scoot in close proximity to the fence. The Plaintiff was or should reasonably have been aware of the risk of impacting the fence or fence posts if she rode on the outer edge of the path.
The risk of a person who was exercising reasonable care for his or her own safety crashing into this post or losing control while using a scooter in the offset area was very low, such that it cannot be said that a reasonable person in the City's position would (as opposed to might) have taken the identified precaution.[103]
[103] Council of the City of Sydney v Bishop [2019] NSWCA 157 [30] (Basten JA).
The magnitude of the risk and the degree of the probability of its occurrence were not such as to require a reasonable person in the City's position to take any action to reduce or eliminate that risk. This is a case where reasonableness requires no response to a foreseeable risk that is not insignificant.[104]
[104] See Thompson [36] (Gleeson CJ, McHugh, Kirby, Hayne & Heydon JJ).

Conclusion as to breach of duty

The evidence does not support the conclusion that a reasonable person in the City's position would have taken any of the precautions contended for by Mrs Leibbrandt. The issues of causation and of contributory negligence do not arise. Consequently, a breach of the duty of care owed by the City to Mrs Leibbrandt is not established, so that her claim must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ZO
Associate to Judge Troy
29 MAY 2025