Marsden v Ydalia Holdings (WA) Pty Ltd
[2004] WADC 190
•28 SEPTEMBER 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: MARSDEN -v- YDALIA HOLDINGS (WA) PTY LTD [2004] WADC 190
CORAM: WILLIAMS DCJ
HEARD: 1-3 & 6 SEPTEMBER 2004
DELIVERED : 28 SEPTEMBER 2004
FILE NO/S: CIV 2109 of 2001
BETWEEN: ANDREW GEORGE MARSDEN
Plaintiff
AND
YDALIA HOLDINGS (WA) PTY LTD (ACN 067958561)
Defendant
Catchwords:
Torts - Negligence - Injury to cyclist - Plaintiff losing balance and control and falling over river wall on to rocks below
Legislation:
Nil
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr G Hancy
Defendant: Mr W Martin QC and Mr R E Keen
Solicitors:
Plaintiff: Talbot & Olivier
Defendant: Srdarov Richards Burton
Case(s) referred to in judgment(s):
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Donoghue v Stevenson [1932] AC 562
Francis v Lewis [2003] NSWCA 152
Graham Barclay Oysters Pty Ltd v Ryan [2002] 211 CLR 540
Prast v Town of Cottesloe (2000) 22 WAR 474
Saidden v Drummoyne Municipal Council [2002] NSWCA 42
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tame v New South Wales; Annetts v Australian [2002] 211 CLR 317
Uzabeaga v Town of Cottesloe [2004] WASCA 56
Van der Sluice v Display Craft Ltd [2002] NSWCA 204
Waverley Municipal Council v Swain [2003] NSWCA 61
Webb v South Australia (1982) 56 ALJR 912
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247
Case(s) also cited:
Da Costa v Cockburn Salvage and Trading Pty Ltd (190) 124 CLR 192
Roe v Minister of Health (1954) 2 QB 66
Wagner v Midland Junction Abattoir Board [1963] WAR 84
WILLIAMS DCJ:
Introduction
The plaintiff is claiming damages for injuries suffered in a fall from a bicycle on 22 February 2000. The plaintiff alleges that as he was attempting to dismount in soft sand adjacent to the dual use path (DUP) between the Old Swan Brewery and the Swan River in Crawley, he lost balance and control and fell over the river wall onto the rocks below and suffered injury.
The matter comes before me on the issue of liability only.
Background
The plaintiff was born on 3 March 1947 and is a medical practitioner specialising in occupational medicine.
The defendant was a corporation trading as Darling Earth Movers and carried on the business of excavation and paving contractors.
On 22 February 2000 the defendant was carrying out excavation and paving work in the area between the Old Swan Brewery and the Swan River.
The claim
By par 11 of his statement of claim the plaintiff alleges that his injuries were caused by the negligence of the defendant in that it:
"(a)Failed to construct a temporary sealed path to the north of the river wall capping.
(b)Failed to ensure that the area where the plaintiff dismounted from his bicycle was and remained sealed or compacted.
(c)Failed to erect a partial barrier fence along the edge of the river.
(d)Failed to warn the plaintiff of the presence and danger of the soft sand.
(e)Failed to warn the plaintiff to dismount on sealed tarmac at a distance from the barrier and not in the soft sand.
(f)By the barrier and sign, directed cyclists to proceed to and use their (sic the) river wall capping which was not designed as and was not a pathway."
Common ground
It is common ground between plaintiff and defendant that:
1. On 22 February 2000, the defendant, by its servants and agents, was carrying out excavation and paving work in the area between the Old Swan Brewery and the Swan River;
2. On or before 22 February 2000, on the southern side of the building on the Old Swan Brewery site;
(a)a 3 metre wide smooth tarmac DUP (for use by cyclists and pedestrians) ran past the building from south-west to north-east;
(b)the southernmost edge of the DUP was approximately 3.3m from the edge of an unguarded vertical wall at the edge of the Swan River;
(c)the river wall dropped a distance of about 1.65m to rocks on the river's edge;
(d)running along the edge of the river wall and parallel to the DUP was a level concrete capping that was about 1.5 metres wide;
(e)the northernmost edge of the river wall capping was at a lower level than the southernmost edge of the DUP. The land between the two edges was unsealed and about 1.8 metres wide. This unsealed section sloped down from the southernmost edge of the DUP to the northernmost edge of the river wall capping.
3.On or about 22 February 2000, the Defendant:
(a)placed a plastic mesh barrier across the DUP on the western end of the building on the Old Swan Brewery site;
(b)dug up and removed the DUP tarmac that was to the east of the barricade;
(c) placed plastic mesh across the DUP to preclude access to the excavated area;
(d)placed a sign on star pickets that were positioned in the unsealed section to the south of the southern edge of the DUP. The sign said:
CAUTION!
CYCLISTS
DISMOUNT
& WALK
4. On 22 February 2000, the Plaintiff was riding his bicycle along the dual use path towards the Old Swan Brewery and Perth;
5. The plaintiff fell.
The plaintiff's evidence
The plaintiff gave evidence that he:
1. was an experienced cyclist;
2. had ridden this DUP throughout the renovation works and was used to different conditions on the tarmac, diversions and changes to the path and was keeping a lookout for the same in stage 1 and stage 2 was just a continuation of that;
3. was well aware of the works at the Brewery and knew that the old DUP would have to be closed and was curious as to where cyclists would be re-routed;
4. saw the changes at the Brewery area, the 'Dismount' sign and the netting across the old DUP some 80 to 100 metres before reaching it;
5. realised that he would have to cross the sand and go along the capping;
6. could see that the unsealed ground was soft sand and rutted and would yield to the weight of his bicycle;
7. knew it would be dangerous if he entered and rode in the sand in the immediate vicinity of the river;
8. knew of the proximity of the river and the height of the wall above the river to be 1 to 2 metres and that for most of the DUP it was obvious that there was no barrier;
The plaintiff acknowledged that;
1. it was blindingly obvious that the sand was soft with rock and rubble in it, and that he didn't need to be told of it, that it would be dangerous to traverse the sand and that it would be safer to dismount on the DUP;
2. there were no visibility problems…the weather was as depicted in the 'A' and 'B' series of photographs (Exh 2);
3 he could read the 'Dismount' sign clearly and had sufficient time to stop;
4. he appreciated that it was dangerous to ride through the sand and rode into it knowing that it was dangerous; and
5. the obvious way to get to the river wall capping was to get off the bicycle on the DUP and walk the bicycle through the "dangerous sand" and that he did not do so.
The plaintiff described the accident as following in examination-in-chief:
"On the day of the accident did you see any change in that area compared to what you saw there the day before?---Yes. As I was approaching from the university side I could see that there was some sort of plastic mesh barrier across the path.
Did you see, anything else?---To the right there was a sign which said, 'Caution: cyclists dismount and walk,' in the area between the path and the river capping.
That sign – was that new?---No. It has been there for some time.
Is it the case that on the day of the accident you were dropped off by your wife, at the university, as per the usual practice?---Yes.
You then rode along the new bicycle path towards the city?---Yes.
The state of the weather that day was what?---Clear, dry.
You were travelling in the usual direction towards the north-east?---Yes.
Approaching the Swan Brewery?---Yes.
Where were you when you first saw the change that you described, of the mesh barrier?---I would say about halfway along between the bend, which you come round, and the carpark – that's 2 or 3 hundred metres back. About halfway along from the bend down to where the mesh barrier was; a matter of 80 or 100 metres, something of that sort.
Apart from the mesh and also the sign that you've described, did you see any signs that told you, as a cyclist, what you should do?---No.
Did you see any signs that told you, as a cyclist, where to go?---No.
The area between the river wall capping and the new dual-use cycle path surface was in what condition – as you approached the mesh – from what you could see?---Some way back it was partially grassed and then it was sand, rutted sand.
And closer to the sign that you described, what was the condition?---Rutted sand with rocks or debris in it.
Did you form any conclusion about the way you had to go to proceed past the brewery building site?---Yes. I realised that I would have to go across the sand and it looked as though there was a need to go across the intermediate area and onto the capping and then along the capping.
Was it the case that the mesh barrier that you described, although it extended across the dual-use path, didn't extend all the way to the river edge?---No.
So that there was the gap for you to pass through?---Yes.
You said that there was the sign about cyclists dismounting and walking that you saw. Was there any sign that indicated to you on that occasion precisely where you should dismount?---No.
Was any workman present to tell you where you should dismount?---No.
Did you see any sign to indicate that you should not dismount, or attempt to dismount, in the unsealed area?---No.
Was there anyone there telling you not to do that?---No.
As you approached the sign, did you make any change to the way that you were riding your bicycle?---Yes.
How did you change?---I slowed right down.
You slowed down. Did you do anything else?---As I was coming down that area, I slowed really right down and started going towards the edge of the dual path in preparation for going across and onto the river capping.
Going across the unsealed surface - - - ?---The unsealed surface.
- - - by the river wall capping?---Yes.
Did you stop on the sealed tarmac; the new dual-use pathway?---Not absolutely, no.
Did you proceed into the unsealed area?---Yes.
As your bike, with you on it, moved into the unsealed area, did you make any other change to the way that you were riding your bicycle?---I was going really slowly into that area. I literally just rolled into the soft sand and started to get my left foot out of the clip and put my left foot down; just the toe down.
What direction was your bicycle facing as you were moving into the soft sand?---I would say it was at an angle – roughly in line with the sort of rutting that was there, that would be a line between going off a path and onto and out through a gate.
It was perpendicular between one path and the other - - -?---No. I didn't go perpendicular - - -
- - - at any angle?---No.
Before you went into the unsealed area, did you have any appreciation that it was particularly soft?---I could tell that it was soft sand. I didn't have an appreciation of how soft it was.
Did you have appreciation that it would in any way present a danger to you if you rode your bike into it?--- If I rode into it, yes, I knew that would be dangerous.
But did you have any appreciation that it would be dangerous for you doing what you were doing, going into it?---I thought I would be safe if I rode in – I mean, dribbled in and put my food down and go off in that sanded area.
You mentioned that you took your left foot out of the stirrup?---Yes.
After you did that, did anything happen with the way that you were riding or able to ride your bicycle?---Yes. The front handlebars dropped as the wheel went into the soft sand.
So the wheel dropped into the soft sand. Is that something you were expecting to happen?---No. I wasn't expecting it to be so soft.
Did anything happen to the bicycle after that?---Yes. As the front dropped into the soft sand, I had my toe down. I had just got into the soft sand and the bicycle went in and then kicked - the handlebars swivelled slightly.
Swivelled slightly in what direction, because you were making a motion - - -? ---With my left hand back and my right hand forward. As I was going across the bike path in the direction, it just kicked like that.
You are motioning that your handlebars moved as if they were turning to the left?---To the left, yes.
Is that something you did or - - -?---No.
- - - it just happened?---Happened, yes.
The wheel sank, the handlebars moved as if you were turning to the left?---Yes.
What effect, if any, did that have on your control of the bicycle?---I lost control.
What effect, if any, did that have on your balance?---I lost my balance and started falling to the right.
Where was your right foot - - -?---In the stirrup.
- - - when that happened?---In the stirrup.
When you were falling to the right?---In the stirrup, with the foot in the upright position, upright and forward.
Did you completely fall to your right?---Yes.
WILLIAMS DCJ: By upright and forward, you're meaning in a position - - -?---Push off, yes.
- - - where you're about to apply pressure with your right foot?---Yes, your Honour.
HANCY, MR: Did you have any opportunity to remove your right foot from the stirrup to put it down to prevent the fall?---No.
You fell to your right. Did you land on your right side?---Yes.
Where did your body o after you fell on the ground?---I fell forwards and to the right, to the right this way and my elbow was at the edge of the bike path, being a tall chap. The bike path was 1.5 metres or whatever.
Sorry, the bike path?---Sorry, the river capping. My elbow hit the ground, and I went over. I was – well, I was just too tall.
Your body went over what?---Over the capping and into the river.
And you began your motion – all of this is being recorded and it won't pick up any hand language – you went over the river wall capping to where?---I went over the river wall capping and then fell vertically down into the river, beyond the river wall capping, landing on my head.
You landed on your head?---Yes.
On a solid surface?---On a rock.
Where did your body go after your head hit the rock?---Well, the next thing I remember – I remember hitting the rock with a tremendous crack and then I was in the water. The next thing I knew I was in the water but I had obviously rolled over because I was facing out into the river.
Do you recall ending up in the water?---I do.
How much water?---Well, deep water, enough for me to go under. I went right under and I had to hold my breath.
You mentioned a crack. Where did you experience the crack?---The crack sound?. As my head hit the – vertically hit the rocks.
Did you have any sensation that indicated to you what it was that was making the crack sound?---Yes, my neck.
Were you wearing a helmet - - -?---Yes.
- - - at the time?---Yes, I was.
After you realised that you were in water, how did your neck feel?---Very painful.
Did you do anything when you were in the water?---Yes I got to the surface so that I could breathe and then I managed to move myself back very slightly and ended up about chest height, sort of half sitting on rocks with my body in the water.
At any point from when you fell through to the point that you have just described, of being in the water up to chest height, did you have any appreciation of where your bicycle was?---Yes, I had hold of it in my right hand still. I was still holding onto the bike and my right foot was still in the stirrup and the bicycle was underneath me.
When you were in the water up to chest height, were you sitting?---Roughly sitting, yes.
Where was your bicycle then?---Underneath me and forward of me but with my food still in the stirrup, so at an angle in front of me to the right, but right under water.
Did you try to get your foot out of the stirrup?---Yes.
Was that easy?---No, it wasn't. It was very difficult."
The plaintiff described the accident as follows in cross-examination:
"Let's go back 100 metres. How fast were you going 100 metres back?---My normal speed is about 26 K's on a little computer thing that I've got and coming up to the 100 metres or so beforehand I started slowing right down. I would have been moving very slowly by the time – I really did just roll off onto that sand.
Just rolled off? No real impetus at all?---No.
You tell us you took your left foot out of the bike. Is that right?---Yes.
Why did you do that?---Because I was getting off.
Where then did your left foot go? At what part of the unsealed section did your left foot go to ground?---Just within it.
When you say 'just within it', which side?---Well, it would be to the left hand side of my bike and about a metre or so in.
Right. So it would be – if we take the unsealed section to be, say, 1.8 metres wide, would that accord with your recollection?---Yes.
Are you telling us that your left foot went to ground somewhere between naught and 0.8 of a metre from the dual-use pathway into the unsealed section?---About that sort of position, yes.
So on the northern half of the unsealed section?---Yes.
At this time you were rolling very slowly indeed---Yes.
Barely moving. Is that right?---Yes.
And then your evidence is that the front wheel went down into the sand. Is that right?---Yes
You were, of course, expecting the bike to sink into the sand to some extent, weren't you?---I was.
Because you'd seen the ruts?---And that's why I was going slowly.
But are you saying that the front wheel sank more than you were expecting?---Yes.
And it was the apprehension of the bike sinking into the sand that caused you to realise that it would be dangerous to ride through this sand, wasn't it?---No, I knew it would be dangerous to ride through, beforehand.
But you did ride into it?---Yes.
Knowing that it was dangerous?---I rode into it.
Knowing it was dangerous?---Yes.
Then you tell us that the straight handlebar moved of its own motion towards your left-hand side. Is that right?---Yes.
So that your left hand, which was on the handlebar, came close to your body and your right hand went further away from your body?---Yes.
And then you tipped over to your right. Is that right?---Yes.
How did that come about? Why did you tip over to your right?---That's when I was riding. I came down. I put my left foot down. As I said, it tipped, it twisted and that action is one which throws-threw me to my right.
I am having trouble understanding, I must admit, doctor, and it may be my fault. If your left foot is down, your body would, by definition, be leaning to the left, wouldn't it?---Yes, but the - - -
Just stop there. Your body would be leaning to the left. That's right, isn't it?---Very slightly to the left, yes. I haven’t got really long legs and it was just a tip down. I didn't have my foot flat down on a solid surface.
But to the extent that the body is leaning at all, it's leaning to the left?---Yes.
The handlebars then move to the left so that the wheel is then pushing the bike in a left-hand direction?---Yes.
Everything then surely was pushing in a left-hand direction, was it not?---No. It threw me to the right.
How could it possibly do that if the wheel is moving to the left and you were leaning slightly to the left?---Because the wheel goes to the left and the bicycle tended to dip down and go to the left, and that threw my weight more to the right over the centre of whatever gravity that was there.
Have you ever ridden a motorbike, doctor?---Yes.
When you are turning to the left, you lean into the turn on a motorbike, don't you?---But I wasn't leaning anything like that far to the left.
And when you're on a motorbike, for example, or a bike riding fast, you lean into the turn, don't you?---Yes, but if you're on a motorcycle and you hit something with your front wheel and it turns in, you go over the front right.
Your experience and mine must differ there then. You told us how tall you are. You told us you are a tall person. How tall are you, exactly?---Six foot two.
Six foot two?---189 centimetres.
You then tell us that you were falling over to the right?---Yes.
At this stage did you try and remove your right foot from the pedal?---Yes.
You did?---As far as I remember. It would have been a reaction.
But you couldn't get it out?---Not quickly, no.
Because of the strap; because of the stirrup arrangement you described?---No, because I was falling. By then I was already falling.
You wouldn't have been falling very quickly if you were just barely moving at all, would you, doctor?---I think once I had started to fall after that twist, I think it – I fell quite quickly. I had the feeling I was falling quickly.
The fall wouldn't have been accelerated by your forward impetus, would it?---No, because I wasn't - - -
Because you didn't have any forward impetus, on your evidence, did you?---No.
If you didn't have any forward impetus, I'm struggling to see why it is that you were falling to the right. Can you shed any more light on that?---That's what happened. The wheel twisted.
You were pushed to the right by the mere fact of the wheel twisting. Is that your evidence?---Dropping down and throwing me sideways, yes.
The wheel, turning to the left, threw you sideways,?---Yes, it turned slightly to the left and down.
Unassisted by any impetus from forward motion?---Well, maybe some impetus from forward motion. I mean, there was still some forward motion from going into the sand in that area, but, I mean, it wasn't a ride through or an attempt to ride through.
And the fall was so fast as a result of the handlebar twisting, that you didn't have time to remove your right foot. Is that right?---No, I just went. I just hit and rolled.
It must have been difficult t get your right foot out then, must it not?---When I was in the water it was difficult, because by then the bike was on its side and I was sitting on top of it.
But it was difficult while you were in the unsealed section to get your right foot out, wasn't it?---Yes.
Otherwise, if you're not moving at any speed, I suggest to you, unless your right foot was stuck in that stirrup, there would have been no difficulty at all in getting your right foot out to stop you falling over?---I think by the time I started falling – and this all happened very, very quickly. By the time I started to fall - - - "
At the time of the accident Maxwell Harwood was doing casual labouring work for the defendant. His evidence was that:-
1. he was in a position where he could see the plaintiff;
2. he was reasonably close to the plaintiff – about 15 metres;
3. he saw the plaintiff on his bike on the river wall capping and could see his full body, feet and pedals;
4. the plaintiff was facing him with both wheels on the capping and parallel to the river and almost stationary;
5. the plaintiff appeared to be pre-occupied with his feet, was hunched over looking down at his feet (giving Harwood the impression that the plaintiff was trying to get his foot out of the stirrup), was wobbling very close to the edge and Harwood thought the plaintiff might go over the edge;
6. the plaintiff appeared to steer to the left and regain composure and Harwood looked away for up to 5 seconds;
7. he looked up again and saw the front wheel of the bicycle pointing toward the river and the plaintiff was still looking down; and
8. the plaintiff, still on his bicycle with his feet on the pedals somersaulted into the river.
9. at no time did he see the plaintiff's feet on the ground but always on the pedals.
It was Harwood's evidence that he assisted the plaintiff and spoke to him after the accident and the plaintiff said words to the effect that he couldn't get his feet out of the stirrups as he came through the sand and that it was a silly or stupid thing to do.
In the statement of claim, the plaintiff alleges that as he approached the netting and the sign he commenced to dismount from his bicycle and while endeavouring to dismount the front wheel dug deep into the sand causing him to lose balance and control of his bicycle and fall over the river wall.
In his reconstruction and explanation to his expert (Mr Stallard) the plaintiff demonstrated the sequence of events which was recorded in the 'D' series of photographs in (Exh 2) and (Exh 13).
In 'D2' he is seen well into the unsealed area not just on the north edge as if he had just rolled off the DUP into the soft sand with no real impetus;
In (Exh 13) he is seen stopped with his front wheel on the concrete capping and he has almost completely traversed the sand section. He advised Stallard in words to the effect that he was lifting or had lifted the front wheel onto the capping. In evidence he accepted that that version was inconsistent with his evidence at trial.
Other than that evidence and the actual observations made by Stallard the remainder of his (Stallard's) evidence is irrelevant. The Standards to which he refers and Austroads 14 in particular relates to a cyclist as defined in the Glossary. The plaintiff was, on his own version, dismounting and becoming a pedestrian.
There is an obvious discrepancy between:
·the plaintiff's evidence of how the accident occurred and the version that he gave to Stallard particularly as to photograph (Exh 13);
·his description of how and where the accident occurred and the improbability or impossibility of it occurring in that way; and
·the evidence of Max Harwood which is consistent with the evidence that the plaintiff had his foot caught in the stirrup. In cross-examination the plaintiff acknowledged that he had his right foot caught in the stirrup.
In my view the evidence of Harwood should be accepted. In all essential respects and on material matters it was unshaken in lengthy cross-examination and was consistent with the statement made by him the day after the accident and tendered by the plaintiff as part of his case (Exh 14). It is a plausible and coherent explanation as to how the plaintiff came to fall into the river and hit his head. Although working as a casual labourer at the time Harwood had spent 25 years as a journalist in the television industry and in my view was a most impressive witness.
The cause of the accident
It is my finding that:
(a) the warning sign was adequate to warn and inform and did warn and inform the plaintiff of the diversion; and
(b) the plaintiff observed the warning sign in plenty of time to take the direction action (dismounted); and
(c) the nature of the works, the surface in the area, the proximity of the river and the drop to the river below were all obvious to the plaintiff;
(d) the plaintiff failed to dismount on the DUP when he had the opportunity to do so and walk through the sand onto the river wall;
(e) the plaintiff attempted to dismount while in the sand without first releasing his feet from the stirrups when he knew that it might be difficult to remove at least his right foot; or
(f) attempted to ride through the sand with the intention of;
(g) dismounting on the river wall in close proximity to the river edge; or
(h) ignoring the sign and intending to continue riding in an easterly direction on the river wall.
It is my finding that despite (on his own admission) observing the signs the plaintiff failed to dismount when it was safe to do so or at all, intending to ignore the same. On the basis of Harwood's evidence the plaintiff's case fails, as the pleaded negligence could not have been causative of the fall, which on Harwood's description was essentially due to the plaintiff losing his balance while trying to remove his "enormous" feet (the plaintiff's description) from the stirrups, in a situation in which he plainly appreciated the dangers of the course he had chosen.
The law
A person who creates a danger (in the sense of a reasonable foreseeable risk of injury) owes a duty of care to those who might be exposed to the danger: Donoghue v Stevenson [1932] AC 562; Webb v South Australia (1982) 56 ALJR 912, 913; Sutherland Shire Council v Heyman (1985) 157 CLR 424, 459-460; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 35; Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512, 539-540. The plaintiff contends that the defendant created a hazard by its changes to the dual use path and re-direction of cyclists and owed him a duty of care.
The test for whether a duty of care exists is to ask whether a reasonable person in the defendant's position could have avoided damage by exercising reasonable care and ought to have acted so as to have avoided it; Graham Barclay Oysters Pty Ltd v Ryan [2002] 211 CLR 540.
In Tame v New South Wales; Annetts v Australian [2002] 211 CLR 317 Gleeson CJ at [12] said as follows:
"A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed. More than 150 years ago Pollock CB (38) said that a person "is not … expected to anticipate and guard against that which no reasonable man would expect to occur". Foreseeability may be relevant to questions of the existence and scope of a duty of care, breach of duty, or remoteness of damage. The present cases are concerned with the first topic. The subject of foreseeability was discussed by this Court in Wyong Shire Council v Shirt (39), which was concerned with the second topic. (The duty of care was conceded (40).) Reference was there made to the rather tendentious description of the requirement of foreseeability as 'undemanding' (41); a description that may be more or less accurate depending upon the context. It is important that "reasonable foreseeability" should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated."
In Francis v Lewis [2003] NSWCA 152 (at [40]) the Court of Appeal note that:
"Foreseeability of risk of injury is not determinative of breach of duty of care. …The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiff's are themselves expected to act reasonably and take care for their own safety when determining what is reasonable."
The point was also made by Hayne J in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (supra) where his Honour observed (at [318]):
"As I have said, however, the search for some unifying principle or principles which will explain why an analogy has been drawn with previous authority in some cases but not others has so far proved unsuccessful. All that emerges is that foresight of harm, and capacity to avoid it, has been said not to be enough. 'Something more' must be found. If, however, the expansion of duty of care continues on its current path, foresight of harm and capacity to avoid it will become the only criteria which underpin the imposition of a duty of care. In that event, duty of care would serve no purpose in identifying the cases in which liability is to be found. The only questions would be whether a defendant in fact acted without reasonable care, or failed to act when it would be reasonable to do so, and whether that act or omission was a cause of the plaintiff's loss or damage."
The duty does not extend to guarding against every conceivable risk however remote or fanciful; Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291 at 301.
In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (supra) at 163 the court noted that (in relation to pedestrians but relevant to the present circumstances):
"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…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, as Jordan CJ put it, 'of a kind calling for some protection or warning'. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety'."
In Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247 (at [157]) (now being the subject of an application for special leave to appeal) the Court of Appeal noted that the shift towards personal responsibility for one's conduct, especially in the context of sporting and recreational pursuits where the risk of injury is obvious, accords with current expectations of the community. See also Waverley Municipal Council v Swain [2003] NSWCA 61 at 114 (on appeal to the High Court) that greater weight is being given to the proposition that people will take reasonable care for their own safety.
In Wyong (at [161]) Tobias JA adopted the following definition of obvious risk:
"Obvious' means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence, and judgment."
Such definition and approach is consistent with that given by Heydon JA (as he then was) in Van der Sluice v Display Craft Ltd [2002] NSWCA 204 at [74] when he said.
"A primary difficulty in the plaintiff's position goes beyond the fact that he ought to have perceived the dangers in working very high on the ladder because of his experience in that type of work and on the very site of his injury, and beyond the fact that it would have been reasonable for the defendant to assume that he, as a skilled and experienced contractor in that line of work, would have perceived and guarded against those dangers. The fact that the higher up the ladder one moves the more care one must take for one's own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risk in those areas is for the judgment of each normal adult in the light of the particular adult's capacity. Mr Smink felt that for him it was risky to climb the ladder. The plaintiff did not. But Mr Smink was a backpacker from Holland working in Australia, not a skilled and experienced specialist. In view of the interposition of the judgment of the workmen between the task which the defendant had engaged them for and any risk of injury, the risk of injury was not reasonably foreseeable."
Application of fact to law
Such danger as may have been foreseen by diverting traffic onto the river wall was accommodated by the signage used. The steps taken by the defendant in response to the risk namely to provide warning and direction were adequate.
The existence of the river wall and the lack of fencing adjacent to it was obvious and extended over several kilometres.
The steps taken by the defendant were practical measures to take traffic around the works.
The physical circumstances were obvious and being so obvious there was no requirement for further measures to be taken and the plaintiff acknowledged that there was no practical alternative route; see also photograph B 7 (Exh 2) which demonstrates this.
Despite counsel for the plaintiff opening on the basis that the sand constituted a trap there was no evidence to support that assertion and the plaintiff's evidence suggests otherwise. The sand was not a trap and was a usual and obvious boundary to the DUP and one which any cyclist (and particularly this plaintiff), having regard to his own safety, could be expected to safely negotiate having regard to the directive to dismount which had been given.
The plaintiff's evidence as to obviousness puts the case significantly with in the class of cases such as Wyong v Vairy. There is a direct analogy to the surfing cases where the risk is the one posed by the unknown depth and in this case the risk is the one posed by the soft sand (Prast v Town of Cottesloe (2000) 22 WAR 474 and Uzabeaga v Town of Cottesloe [2004] WASCA 56) where the danger is inherent and known and may or may not eventuate and also those cases where the courts have affirmed the need for personal responsibility for one's conduct (Van der Sluice v Display Craft Ltd; Wyong Shire Council v Vairy).
Having provided the appropriate warnings and the sand and the danger of an exposed river wall being so obvious the risk to a cyclist was remote especially to a cyclist displaying rudimentary care for himself; cf Saidden v Drummoyne Municipal Council [2002] NSWCA 42.
Particulars of negligence
(a) Failed to construct a temporary sealed path to the north of the river wall capping.
This is a proposition that there should have been a temporary path so that cyclists could remain on their bicycles and negotiate that path.
The plaintiff accepted in evidence that there was no cycle route to the north of the Swan Brewery so the proposition is on the basis that the temporary path should have been constructed between the Old Swan Brewery and the Swan River. Exh 2, being the photographs indicate that it was necessary to close the entire area off as the entire width was to be excavated. In my view the defendant adopted the only practical course open to it. That was to instruct cyclists to dismount and walk. The plaintiff appreciated that this was what was required and intended to follow the instruction. The concrete river capping was the only practical route.
This particular of negligence fails.
(b) Failed to ensure that the area where the plaintiff dismounted from his bicycle was and remained sealed or compacted.
There was nothing to stop the plaintiff dismounting on the duel use path which he knew to be safe as opposed to the sand which he knew to be unsafe. If the area between the dual use path and the concrete river capping had been sealed it may have encouraged cyclists to stay on their bicycles. That would in fact make the situation more dangerous.
Mr Stallard made reference to the Austroads Standards Australia (Pt 14) which states that temporary paths should be sealed. However, he accepted that was referring to persons who were riding bicycles. Here the clear instruction was to dismount.
This particular of negligence fails.
(c) Failed to erect a partial barrier fence along the edge of the river.
Mr Stallard made reference to the fact that Austroads Standards Australia (Pt 14) state that a full barrier fence would be appropriate where a vertical fall to water occurs within 5 metres of a path. He accepted that this was a reference to persons riding bicycles on paths. Here cyclists are required to dismount.
Mr Stallard accepted that for significant sections of the DUP there are no barriers. He was aware when he went to the site in April 2002 that it did not comply with Austroads Standards Australia (Pt 14). He did not do anything about it as he considered that it was beyond his capacity to report.
In my view a barrier fence would only be necessary if it was intended that cyclists ride on the concrete river capping. Here the instruction was to dismount and walk.
This particular of negligence fails.
(d) Failed to warn the plaintiff of the presence and danger of the soft sand.
The plaintiff's evidence was to the effect that he was well aware of the presence of the soft sand and its dangers.
This particular of negligence fails.
(e) Failed to warn the plaintiff to dismount on sealed tarmac at a distance from the barrier and not in the soft sand.
It was unnecessary to have a sign directing cyclists to dismount on the DUP. That in my view is merely stating the obvious. As I have stated in (d) above the plaintiff was well aware of the dangers of the soft sand.
This particular of negligence fails.
(f) By the barrier and sign directed cyclists to proceed to and use the river wall capping which was not designed as and was not a pathway.
On his own evidence the plaintiff had no intention of cycling along the river wall capping. He was intending to obey the sign and walk.
This particular of negligence fails.
Late admission
Late in the trial and in order to obviate the need to call witnesses counsel for the defendant without conceding its relevance formally admitted that the closure of the old DUP and the direction of cyclists onto the concrete river capping was put in place in the day prior to the accident and that at point in time prior to that there was a plan to carryout the work by up grading the old path half at a time, that is to say by working on one half, leaving the other half open and then opening the new half and working on the remaining old half.
In my view this latter fact is not relevant. The real question is what the situation was on 22 February 2000 and whether the defendant was negligent with respect to that situation.
Contributory negligence/volenti
In view of my findings it becomes unnecessary to consider these aspects.
Conclusion
It follows that the plaintiff's claim must be dismissed.
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