Marsden v Ydalia Holdings (WA) Pty Ltd

[2006] WASCA 52

MARSDEN -v- YDALIA HOLDINGS (WA) PTY LTD [2006] WASCA 52

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 52
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:162/2004	Heard:	17 JANUARY 2006
Coram:	ROBERTS-SMITH JA MCLURE JA PULLIN JA	Delivered:	31/03/06
No of pages:	43	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	ANDREW GEORGE MARSDEN YDALIA HOLDINGS (WA) PTY LTD
Catchwords:	Tort Negligence Duty of care owed to plaintiff as member of a class Breach of duty Obviousness Relevant to breach of duty Cyclist injured by fall into river Whether contractor negligent
Legislation:	Nil
Case References:	Ainger v Coffs Harbour City Council [2005] NSWCA 424 Bennett v Minister for Community Welfare (1992) 176 CLR 408 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Commissioner of Main Roads v Jones (2005) 79 ALJR 1104 Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Rep 81-815 CSR Ltd v Della Maddalena [2006] HCA 1 Fox v Percy (2003) 214 CLR 118 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Jolly v Hutch [1960] WAR 172 Manley v Alexander (2005) 80 ALJR 413 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 Onetech Pty Ltd v Shaw [1999] WASCA 289 Rosenberg v Percival (2001) 205 CLR 434 Sansom v Sansom [1956] 1 WLR 945 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 Vairy v Wyong Shire Council (2005) 80 ALJR 1 Woods v Multi-sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40 Zhang v Minister for Immigration [2005] FCAFC 30 Abalos v Australian Postal Commission (1990) 171 CLR 167 Braund v Henning (1988) 62 ALJR 433 Brodie v Singleton Shire Council (2001) 206 CLR 512 Caterson v Commissioner for Railways (1973) 128 CLR 99 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 512 Devries v Australian National Railways Commission (1993) 177 CLR 472 Di Vincenzo v McKrill [2005] WASCA 222 Donohue v Stevenson [1932] AC 562 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Neindorf v Junkovic (2005) 80 ALJR 341 Perre v Apand (1999) 198 CLR 180 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Webb v South Australia (1982) 56 ALJR 912

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARSDEN -v- YDALIA HOLDINGS (WA) PTY LTD [2006] WASCA 52 CORAM : ROBERTS-SMITH JA

MCLURE JA
PULLIN JA

HEARD : 17 JANUARY 2006 DELIVERED : 31 MARCH 2006 FILE NO/S : FUL 162 of 2004 BETWEEN : ANDREW GEORGE MARSDEN

Appellant

AND

YDALIA HOLDINGS (WA) PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WILLIAMS DCJ

Citation : MARSDEN -v- YDALIA HOLDINGS (WA) PTY LTD [2004] WADC 190

File No : CIV 2109 of 2001

(Page 2)

Catchwords:

Tort - Negligence - Duty of care owed to plaintiff as member of a class - Breach of duty - Obviousness - Relevant to breach of duty - Cyclist injured by fall into river - Whether contractor negligent

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr G R Hancy
Respondent : Mr W S Martin QC & Mr R E Keen

Solicitors:

Appellant : Talbot & Olivier
Respondent : Srdarov Richards Burton

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

Ainger v Coffs Harbour City Council [2005] NSWCA 424
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Commissioner of Main Roads v Jones (2005) 79 ALJR 1104
Consolidated Broken Hill Ltd v Edwards (2005) Aust Torts Rep 81-815
CSR Ltd v Della Maddalena [2006] HCA 1
Fox v Percy (2003) 214 CLR 118
Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Jolly v Hutch [1960] WAR 172
Manley v Alexander (2005) 80 ALJR 413
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

(Page 3)

Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43
Onetech Pty Ltd v Shaw [1999] WASCA 289
Rosenberg v Percival (2001) 205 CLR 434
Sansom v Sansom [1956] 1 WLR 945
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234
Vairy v Wyong Shire Council (2005) 80 ALJR 1
Woods v Multi-sport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40
Zhang v Minister for Immigration [2005] FCAFC 30

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Braund v Henning (1988) 62 ALJR 433
Brodie v Singleton Shire Council (2001) 206 CLR 512
Caterson v Commissioner for Railways (1973) 128 CLR 99
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 512
Devries v Australian National Railways Commission (1993) 177 CLR 472
Di Vincenzo v McKrill [2005] WASCA 222
Donohue v Stevenson [1932] AC 562
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Neindorf v Junkovic (2005) 80 ALJR 341
Perre v Apand (1999) 198 CLR 180
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Webb v South Australia (1982) 56 ALJR 912

(Page 4)

1 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for decision of McLure and Pullin JJA. Subject to what follows, I agree with the reasons and conclusion of Pullin JA.

2 It is implicit in the reasons given by the trial Judge that he found the respondent owed a duty of care to the appellant as a member of a class, namely cyclists using the dual-use path. The duty was to take reasonable care to avoid foreseeable risk of injury. It is the reasonable person's perception of the (prospective) risk which conditions the response required by the duty. McLure JA takes the foreseeable risk to be of cyclists falling into the river as a result of dismounting, or attempting to dismount, after diverting from the dual-use path onto the soft sand. Pullin JA describes it as being the risk that if a cyclist attempted to continue their journey by riding off the dual-use path through the sand and via the river wall capping, they would fall into the river and be injured on the rocks below. In my opinion, both of those formulations are, with respect, too specific. I consider the relevant foreseeable risk being better stated as the risk a cyclist would attempt to ride off the dual-use path into the soft, rutted sand with rocks or debris in it, towards or onto the river wall capping, and fall into the river and onto the rocks below.

3 The question then is whether the sign placed there by the respondent was a sufficiently reasonable response to avoid the foreseeable risk of injury. The trial Judge was correct to find that it was. There was, therefore, no breach of duty.

4 Like McLure JA, I am satisfied that cyclists generally would be expected to be aware of the risks of riding in soft sand and attempting to dismount close to the river. The risk was obvious and it ought to have been appreciated by the appellant. Nonetheless, it is clear he was attempting to dismount in the sand. I agree with Pullin JA that the evidence established the appellant lost control of his bicycle because he "traversed the sand", something that was dangerous to do, albeit he did so because he found himself unable to dismount in the sand (which was his intention). On Mr Harwood's evidence the appellant was on the capping, still on his bicycle, attempting to remove his feet from the stirrups, and because he was doing that whilst almost stationary, overbalanced and fell off the capping into the river. That was the very risk which the sign warned against. That is what the trial Judge found.

5 I also agree with Pullin JA that the respondent did not create a "dismounting area" in the sand. The most obvious and logical thing for a cyclist to do in response to the sign and the circumstances of the ground,

(Page 5)

was to dismount on the path rather than in the sand, which was obviously unsafe and which the appellant knew to be unsafe. The trial Judge was correct to so find.

6 I agree with McLure JA that there was no evidence to support a finding that the appellant rode through the sand with the intention of dismounting on the river wall capping or with the intention of ignoring the sign and continuing to ride along the capping. I agree with her Honour that the evidence supports a finding that the appellant intended to dismount in the sand, but was unsuccessful in giving effect to that intention and that he was on, and fell from, the river wall capping because he could not remove his feet from the stirrups. It follows that ground 6.6 is made out, but as those findings of his Honour at [21] (f), (g) and (h) were in the alternative to (e) which is supported by the evidence, that finding must stand and is sufficient.

7 I otherwise agree with Pullin JA.

8 MCLURE JA: The appellant appeals from the decision of Williams DCJ dismissing his claim against the respondent for damages for negligence for personal injuries sustained when the appellant fell with his bicycle onto rocks at the base of the Swan River. The learned trial Judge found that the respondent's alleged negligence did not cause the accident and that, in any event, the respondent was not negligent.

9 The appellant was an experienced cyclist. The accident occurred on 22 February 2000 when he was riding to work from Crawley along a path adjacent to the Swan River. The respondent was a contractor engaged by the City of Perth to perform construction work from Hackett Drive, Crawley to Perth in the area between Mounts Bay Road and the Swan River. The work included, inter alia, rebuilding parts of the river wall, placing capping on the river wall and replacing an existing dual use (cyclists and pedestrians) path. At the time of the accident, the river wall capping was completed as was the new dual use path from Crawley to a point just west of the old Swan Brewery building ("Brewery"). The new dual use path (like the old path) was to run between the Brewery and the Swan River.

10 On the day of the accident, access to the old dual use path was closed off by the respondent placing an orange plastic mesh barrier across it. The mesh extended from the Brewery to the northern edge of the river wall capping. The respondent's intention was to divert cyclists and pedestrians using the dual use path onto the river wall capping whilst it

(Page 6)

was removing the old and constructing the new dual use path in front of the Brewery.

11 The new dual use path was 3 metres wide. The river wall capping was 1.5 metres wide. The distance between the southern edge of the dual use path and the northern edge of the river wall capping in the area in question, was 1.8 metres and contained sand and small amounts of rubble ("the sand section"). In this area, the river wall capping was about 140 mm lower than the dual use path, with the result that the sand section sloped down about 8 degrees. From the top of the river wall capping to the rocks and river below was 1.6 metres.

12 On the day of the accident, a person using the new dual use path and approaching the Brewery from Crawley would see the plastic mesh and, in front of the plastic mesh in the area between the dual use path and the river wall capping, a sign stating "CAUTION! CYCLISTS DISMOUNT & WALK" ("dismount sign"). In front of the plastic mesh was a chevron sign with arrow tips pointing to the right. The accident occurred before the dismount (and chevron) sign.

13 The grounds of appeal are set out in the judgment of Pullin JA and not repeated here. In broad terms, the appellant complains that in his consideration of duty of care and breach of duty the trial Judge erred in principle in focusing on the appellant, in particular, on his knowledge and conduct, rather than on the class of persons to whom the duty of care was owed and the steps the respondent ought reasonably to have taken to eliminate the risk of the harm that eventuated. The appellant also challenges the trial Judge's findings as to how the accident occurred, the appellant's knowledge of the risks and on causation. The appellant's evidence as to how the accident occurred differs from that of an eye witness, Mr Harwood.

14 The respondent filed a notice of contention that the decision of the trial Judge should be affirmed on the ground that the appellant voluntarily assumed the risk of dismounting in the sand. Alternatively, if breach is found, the respondent contends that the appellant was guilty of a high degree of contributory negligence.

The Trial Judge's reasons

15 The most significant of the appellant's challenges to the factual findings made by the trial Judge appear in italics in the extracts from the trial Judge's reasons to which I refer below.

(Page 7)

16 The trial Judge made his findings on causation before considering issues relating to duty of care and breach. On the cause of the accident he said as follows:

"21. It is my finding that:

(a) the warning sign was adequate to warn and inform and did warn and inform the [appellant] of the diversion; and

(b) the [appellant] 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 [appellant] [ground 6.5];

(d) the [appellant] 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 [appellant] 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;

(h) ignoring the sign and intending to continue riding in an easterly direction on the river wall [ground 6.6].


22. It is my finding that despite (on his own admission) observing the signs the [appellant] failed to dismount when it was safe to do so or at all, intending to ignore the same [ground 6.7]. On the basis of Harwood's evidence the [appellant'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

(Page 8)

[appellant] losing his balance while trying to remove his "enormous" feet (the [appellant's] description) from the stirrups, in a situation in which he plainly appreciated the dangers of the course he had chosen [ground 6.8]."

17 The appellant's pleaded particulars of negligence were that the respondent:

(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 appellant 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 the sealed tarmac at a distance from the barrier and not in the soft sand; and

(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.

18 After stating his findings relating to the cause of the accident, the trial Judge set out what he identified as the relevant legal principles. That involved a collection of statements on relevant issues including a statement of principle as to the duty of a person who creates a danger and when a duty of care exists; passages from a number of cases on the subject of foreseeability; and passages from a number of cases on the subject of the obviousness of the risk and a shift towards personal responsibility.

19 Applying the law as he had identified to the facts he continued:

"33. Such danger as may have been foreseen by diverting traffic onto the river wall was accommodated by the signage used [ground 6.9]. The steps taken by the [respondent] in response to the risk namely to provide warning and direction were adequate.

(Page 9)

34. The existence of the river wall and the lack of fencing adjacent to it was obvious and extended over several kilometres.

35. The steps taken by the [respondent] were practical measures to take traffic around the works.

36. The physical circumstances were obvious and being so obvious there was no requirement for further measures to be taken and the [appellant] acknowledged that there was no practical alternative route [ground 6.10]; ...

37. Despite counsel for the [appellant] opening on the basis that the sand constituted a trap there was no evidence to support that assertion and the [appellant'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 [appellant]), having regard to his own safety, could be expected to safely negotiate having regard to the directive to dismount which had been given [ground 6.11].

38. The [appellant'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 … 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 …

39. 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;"

20 The trial Judge does not make an express finding that the respondent owed to the appellant a duty of care or the scope of that duty. Although the reference to foreseeability in paragraph [39] is equivocal because foreseeability is a prerequisite for the existence of a duty of care and in establishing a breach of that duty (the former giving rise to a question of law and the latter a question of fact), it is apparent from the discussion as a whole that the trial Judge impliedly accepts that the injury to the
(Page 10)

appellant was reasonably foreseeable (albeit remote) and that the respondent owed the appellant a duty of care but had not breached that duty. This conclusion is consistent with the balance of the judgment in which the trial Judge deals with, and dismisses, each of the pleaded particulars of negligence. Foreseeability, in the sense of the risk being real not far fetched or fanciful, was not in issue in the appeal. I propose to start with how the accident occurred and what the appellant knew.

How accident happened/what appellant knew (grounds 5, 6.5, 6.6, 6.8, 6.10)

21 There was a conflict of evidence as to how the accident occurred. The appellant's evidence was that on the day of the accident he was riding his bicycle from Crawley towards Perth and began reducing his speed from about 26 kilometres per hour as soon as he saw the dismount sign some 80 metres in front of him. He said he rolled slowly onto the edge of the sand and after he had travelled into the sand for a distance of between nought and 0.8 metres he put his left foot down onto the sand. He then felt his handle bars twist to the left and he toppled to the right resulting in him falling over the river wall capping onto the rocks at the base of the river.

22 The eye witness, Mr Harwood, gave a different account. He was standing on the rocks at the edge of the river working to replace rocks around a pipe. He saw the appellant who was about 15 metres away from him. He said the appellant was sitting on his bicycle on the river wall capping with both feet on the pedals. The appellant gave Mr Harwood the impression that he was trying to remove one or both feet from the stirrups on the pedals. When he first saw the appellant his bike was wobbling and moving in several directions but there was no indication the appellant was trying to head off in one particular direction. At one stage Mr Harwood thought the appellant had recovered control of the bicycle and looked away but when he looked up seconds later he saw the appellant as he "somersaulted into the river". Mr Harwood went to assist the appellant who said to him "What a silly (or stupid) thing to do" and "I couldn't get my feet out. I couldn't get my feet out of the stirrups as I came down through the sand".

23 The trial Judge preferred the evidence of Mr Harwood to that of the appellant. I agree, for the reasons given by Pullin JA, that there were material conflicts in the evidence of the appellant and Mr Harwood and that it was clearly open to the trial Judge to prefer the evidence of Mr Harwood. However, that does not answer the question whether that

(Page 11)

required the trial Judge to reject all of the appellant's evidence and his claim (ground 5.4).

24 On Mr Harwood's evidence, the appellant admitted that when he came through the sand he was trying to remove his feet from the stirrups to dismount albeit without success, ending up on the river wall capping. This is consistent with the appellant's evidence that he intended to dismount in the sand section. Subparagraphs (f) - (h) of par 21 of the trial Judge's reasons are in the alternative to par (e). There is no evidence from Mr Harwood or otherwise to support a finding that the appellant rode through the sand with the intention of dismounting on the river wall capping or with the intention of ignoring the dismount sign and continuing to ride in an easterly direction on the river wall capping. The evidence supports a finding that the appellant intended to dismount on the sand section but was unsuccessful in giving effect to that intention. He was on, and fell from, the river wall capping because he could not remove his feet from the stirrups. I would uphold ground 6.6.

25 Ground 6.5, 6.7, 6.10 and 6.11 challenge findings concerning the appellant's knowledge of relevant matters. The appellant's evidence in chief was that the dismount sign did not indicate to him where he should dismount. Further, he said he could tell that the sand where he proposed to dismount from his bicycle was soft but he did not have an appreciation of how soft it was and that he thought he would be safe if he dribbled in and put his foot down in the sand to dismount. The appellant's evidence in cross-examination was that he saw the netting across the old dual use path from about 80 to 100 metres away. The cross-examination continued:

"So it was immediately clear to you, when you saw that, that you couldn't travel the route that you had previously travelled and were going to have to follow some new route, wasn't it?---Yes.

As you approached, you were able to see at least one sign, weren't you?---Yes.

The sign that you saw said, 'CAUTION: CYCLISTS DISMOUNT & WALK' didn't it?---Yes.

And you were able to read that sign clearly?---Yes.

In quite sufficient time to stop. That's right, isn't it?---Yes.

(Page 12)

When you read the sign, did you decide that you would obey the instruction?---Yes.

…

As you approached and decided that you would obey the instruction on the sign and dismount and walk, why was it that you decided you would dismount and walk?---Because I decided I wasn't absolutely confident in crossing the soft sand, just riding across it.

And a part of that decision was obviously your awareness that the river was immediately adjacent to you?---Yes.

Wasn't it? And so you could see the soft sand?---Yes.

And you could see and appreciate that it was soft, couldn't you?---Yes. It was rutted, as I remember.

So, from the ruts, it was clear to you that the sand was of a softness that would yield to the weight of the bicycle tyre?---Yes."

26 He was then asked why he did not dismount on the dual use path. He said:

"I thought I would be able to dismount just in the centrepiece there. I didn’t want to try and ride up onto the river capping. I thought I would be able to safely just roll along to that area there very slowly and get off."

27 Then there was the following exchange:

"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 the 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."

28 The topic was addressed in re-examination as follows:
(Page 13)

" … What again was the danger that you anticipated may arise if you did something other than what you did?---The danger of riding into the soft sand, if I'd rode in it at higher speed or tried to cross over at high speed.

The danger because - - -?---Of losing control in the sand and falling off.

Why was that a danger at that point?---Because I thought the sand was soft, which is why I slowed down to get off in it and slowed right down before I got there.

You were asked whether it was obvious the way of getting off was to do it in the dual use path, but at the time – that is, at the time when you executed the manoeuvre that you did – was it obvious to you that you should do that rather than what you did?---No, I thought it would be safe to get off in the sand. I thought it would be harder under the wheels.

Than it proved to be?---Than it proved to be, yes."

29 The appellant's evidence that he rolled very slowly and no more than 0.8 of a metre into the sand and fell conflicts with Mr Harwood's evidence and was rejected by the trial Judge. The rejection of the appellant's evidence of how the accident happened results in the rejection of his explanation that he fell as a result of his handlebars twisting in the soft sand. However, the case was conducted on the basis that the risk of cycling on soft sand was loss of control and falling over. On the appellant's evidence, he knew the sand was soft and a danger to cyclists who rode onto it (rather than dribbling towards and onto it) because of the risk of losing control and falling off. I am satisfied that the evidence supports the trial Judge's finding in par 21(c) that the surface in the sand section (and the other specified matters) was obvious to the appellant. I would dismiss ground 6.5. However, that finding is not a rejection of the appellant's evidence that he was mistaken as to the degree of softness of the sand. The trial Judge rejected the appellant's evidence only to the extent it conflicted with Mr Harwood's.

30 In any event, the risk of losing control in the soft sand and falling off the bicycle did not eventuate. Based on what the appellant told Mr Harwood at the time of the accident and confirmed by him at trial, the appellant rode onto the sand with the intention of removing his feet from the stirrups and dismounting in the sand section. On Mr Harwood's evidence, the accident happened because the appellant was unable to

(Page 14)

remove his feet from the stirrups. That is consistent with the trial Judge's finding. I infer from his reasons as a whole that he accepted that the surface of the sand section contributed to the appellant being unable to release his feet from the stirrups. If that is not so, the accident resulted from the appellant commencing his unsuccessful attempt to dismount in the sand section in close proximity to the river. I will consider the breach question from both perspectives.

Duty of care (ground 1)

31 The trial Judge made no express finding as to the existence or scope of any duty of care owed by the respondent. I have already concluded that it is implicit in the trial Judge's reasons that he found that the respondent owed a duty of care to the appellant. The appellant contends that the trial Judge should have found that the respondent owed to cyclists who used the dual use path a duty to exercise reasonable care not to create reasonably foreseeable risks of injury whilst making alterations to the dual use path.

32 As emerged more clearly during the course of oral submissions, the appellant's central contention was that the duty of care was owed to a class, namely cyclists who used the dual use path, rather than to the appellant. That does not accord with the conventional view which is to the effect that a defendant's duty of care is owed to an individual plaintiff, albeit that in the ordinary case, as here, the duty is owed to him as a member of a class: Vairy v Wyong Shire Council (2005) 80 ALJR 1 at [6] per Gleeson CJ and Kirby J; [122] per Hayne J; Jolly v Hutch [1960] WAR 172. See also, Fleming, The Law of Torts, 9th ed, p158 - 160. This view is consistent with the foreseeability test (a necessary, but not sufficient condition, for the existence of a duty of care) which is that the risk of injury to the plaintiff must be reasonably foreseeable. I will return to this question when considering breach.

33 On any view, the respondent owed to the appellant and other cyclists using the dual use path a duty to take reasonable care to avoid foreseeable risk of injury. This duty is stated at a high level of abstraction. Although it has the benefit of not foreclosing the second stage breach analysis, it is of little assistance in answering the ultimate question of whether the respondent was negligent. In those circumstances the content or scope of the duty is answered by reference to whether or not the pleaded particulars of negligence are a reasonable response to the particular risk (that is, whether or not they are within the scope of the duty).

(Page 15)

Whether a breach of duty (grounds 2, 6.7 - 6.11)

34 In deciding whether there has been a breach of a duty of care, the Court must first ask itself whether a reasonable person in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J. If the answer to that question is in the affirmative, it is for the Court to determine what a reasonable person would do by way of response to the risk. As stated by Mason J in Wyong (at 47 - 48):

"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."

35 It is apparent from pars [34] - [39] that the trial Judge's conclusion on breach was primarily based on his assessment of the obviousness of the risk. The risk was not expressly identified. It can be taken to be the risk of cyclists falling into the river as a result of dismounting, or attempting to dismount, after diverting from the dual use path onto soft sand.

36 The relevance of, and weight to be given to, the obviousness of the risk has been considered by the High Court on many occasions and most recently in Vairy (supra) and Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 which were heard together. See also Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234.

37 The High Court has consistently reaffirmed that the central question is whether a defendant's response to a foreseeable risk of injury is reasonable and that is determined by reference to the Shirt analysis. The factual judgment in each case of what is a reasonable response to a foreseeable risk depends on all the circumstances. The weight to be given to the obviousness of a risk and the closely related assumption or expectation that others will exercise reasonable care for their own safety, will vary according to the circumstances of the case. Obviousness of the risk is likely to be accorded greater weight when the only particular of negligence is a failure to warn of a relevant risk. That is because warnings only serve a purpose if they are likely to inform a person of something that the person does not already know or to draw attention to something that might be overlooked or forgotten (Vairy at [7] per

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Gleeson CJ and Kirby J). Further, in some circumstances a warning will only be a reasonable response if it is reasonable to assume that the persons to whom the duty is owed will exercise care for their own safety. These matters are best understood by reference to the High Court analysis in Thompson, Vairy and Mulligan. In Thompson, the appellant injured her back while attempting to manually move waste bins on premises occupied by the respondent in order to complete a delivery of bread she was making to the respondent. The appellant claimed that there was a systemic failure of the respondent to exercise reasonable care for her safety by failing to have in place procedures to ensure the safe removal of the bins. The primary Judge found that the respondent was negligent. By a majority, the Queensland Court of Appeal concluded that the respondent was not liable in negligence. The High Court held that the Court of Appeal was not justified in reversing the primary Judge's finding. There was no dispute as to the existence or general nature of the duty owed by the respondent to the appellant. The essential issue was whether there was a breach of duty.

38 The appellant did not complain of a failure to warn her of a risk of which she was unaware. Indeed, her evidence was that she knew of the risk of injury involved in her moving the bins. The respondent was also aware because the appellant had complained to the respondent on a number of occasions about having to move the bins. What was involved was not a risk to everybody, it was a risk to the appellant because of her stature. The High Court concluded it was foreseeable that there was a risk of injury to the appellant in moving the bins. On the subject of the obviousness of the risk and the expectation that others will exercise reasonable care for their own safety, the High Court said (at [36] - [37]):

"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. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The

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whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.

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 the 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."

39 The High Court held that there was no sufficient reason for the Court of Appeal to set aside the primary Judge's finding of negligence having regard to, inter alia, the fact that delivery drivers had no responsibility to design and no power to implement a proper delivery system on the respondent's premises, that the respondent knew delivery drivers would move the bins and that not all drivers were capable of doing so without risk of injury. The respondent's breach was in failing to establish and maintain a delivery system that did not expose people who made deliveries to unreasonable risk of physical injury.

40 Vairy and Mulligan are diving cases in which the primary allegation of breach was the failure to warn of the risk of injury. In both cases the respondent was the local government authority responsible for the area in which the accident occurred. In Vairy the appellant suffered severe injuries when he dived into the ocean from a rocky outcrop ("platform") at a beach and hit his head on a sandbank. The appellant did nothing to assess the depth of the water into which he dived but assumed it was safe as he had noticed other people jumping and diving off the platform without mishap. There was no sign prohibiting diving from the platform or warning of the danger. The primary Judge found that the Council was negligent in failing to warn of the danger. The New South Wales Court of Appeal concluded that the primary Judge had erred and set aside the finding of negligence. By a majority of 4:3 (Gleeson CJ, Kirby and McHugh JJ dissenting) the High Court dismissed the appeal, the majority concluding that the Council did not breach its duty of care as the duty did

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not extend to erecting a warning sign or signs or prohibiting entry into the water from the platform by a sign or otherwise.

41 All the Judges agreed that the relevant question was whether the Council had responded reasonably to the foreseeable risk that someone would be seriously injured if he or she dived from the platform into the sea. Gleeson CJ and Kirby J (in a joint judgment) concluded that there was no error in the primary Judge's reasoning leading to her conclusion that a reasonable response to the risk of injury was the erection of a warning sign. The primary Judge reached this conclusion on the basis of her findings that the platform was unusual both in its formation and its ready accessibility to members of the public and that the Council knew or ought to have known that there could be significant variations in the depth of the water, which information the appellant did not have. McHugh J also concluded that a warning sign was a reasonable response to the risk.

42 Hayne J's approach to the obviousness of the risk, with which Gummow J agreed, is different to that of the other members of the majority, Callinan and Heydon JJ. Hayne J said (at [162] - [163]):

"The conclusion that a reasonable council would not have warned of this danger does not depend upon what the Court of Appeal referred to as the obviousness of the risk. Reference to a risk being 'obvious' is apt to mislead and cannot be used as a concept determinative of questions of breach of duty. Not least is that because obviousness of risk may divert attention from what would have been the reasonable response to foreseeable risk to consideration of how someone other than the plaintiff could have avoided injury. Inquiries of this latter kind will be relevant when considering questions of contributory negligence. They are not useful, however, when considering breach of duty.

That is not to deny the importance of considering the probability of occurrence of the risk in question. The probability of occurrence of a risk that is not apparent on casual observation of a locality or of a set of circumstances may be higher than the probability of occurrence of a risk that is readily apparent to even the casual observer. But the focus of inquiry must remain upon the putative tortfeasor, not upon the person who has been injured, and not upon others who may avoid injury. And in looking at the reasonable response to a foreseeable risk it is necessary to recall that there will be times when others do not act carefully or prudently. That is why, as the Court of Appeal

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recognised, what it referred to as 'the obviousness factor' is not to be elevated into some doctrine or general rule of law." (footnotes omitted)

43 Hayne J makes the point that the inquiry as to whether a putative tortfeasor has responded reasonably to a foreseeable risk of injury is prospective not retrospective and accordingly it is wrong to focus exclusively upon the way in which the accident in question happened. When attempting to answer what response a reasonable person would have made to the risk, regard must be had to the variety of foreseeable risks confronting the Council. He concluded that a reasonable response did not require the erection of a warning sign because first, there was no justification for marking out the place or the particular form of danger as especially worthy of warning and secondly, there was nothing in the frequency with which the platform was used or its suitability for that use that sufficiently distinguished the platform from other places in which there was a risk of spinal injury of a person who dived or plunged into water that was too shallow. Hayne J continued (at [160] - [161]):

"When judged from the proper standpoint - looking forward at all forms of risk associated with all forms of recreation on or from land of which the council had the care, control and management - what would the response of a reasonable council have been to the foreseeable risk of a diving injury like the appellant suffered?

It was not reasonable to expect the council to warn of this particular danger. The council had done nothing to make the danger worse and had no knowledge of some feature of this particular area that was not readily discovered by someone contemplating diving or plunging into the water at this point."

44 Callinan and Heydon JJ (in a joint judgment) concluded that the duty of care did not include an obligation to erect a warning sign or prohibit entry into the water from the platform because (a) when adults voluntarily participate in sport they may be assumed to know the rules, and to have an appreciation of the risks; (b) the respondent could reasonably expect that a person of the appellant's age, knowledge and experience would not need a warning that to dive from the platform could be dangerous; (c) having regard to the area for which the Council was responsible and the variety of natural hazards to be expected in the area, the Council was not negligent in failing to single out the platform for a special warning or prohibition. They rejected a submission that too much weight was attached to the
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obviousness of the risk with the observation that it was a clear duty of the appellant, and one which a responsible authority would expect him to fulfil, to make soundings at least of depth before diving from the platform.

45 McHugh J is at the other end of the spectrum regarding the weight to be given to the obviousness of the risk. He stated that seldom would the obviousness of a risk created or permitted by a defendant who owes a duty of care require no action. According to McHugh J, the obviousness of a risk is relevant to the discharge of a defendant's duty only where the taking of precautions, other than giving a warning, is not a reasonably practicable alternative for a defendant.

46 Because breach involves a question of fact on which reasonable people may differ (or agree for different reasons) the reasoning in the various judgments is more significant than the individual (or joint) conclusions. In my assessment, the weight given by Callinan and Heydon JJ in Vairy to the obviousness of the risk is not on all fours with the other members of the Court.

47 In Mulligan, the appellant was very seriously injured as a result of diving from a standing position in a creek under the control and management of the respondent Council. The appellant had dived from a standing position in the creek six or seven times before the dive that resulted in the injury. It was claimed that the Council negligently failed to warn of the risks of diving in the creek. The primary Judge found that reasonableness did not require the Council to erect a warning sign, a decision which was unanimously upheld by both the New South Wales Court of Appeal and the High Court.

48 The risk was caused by the fact that the water in the creek was of variable depth, a natural physical condition which according to Gleeson CJ and Kirby JJ was not unusual and materialised at virtually every Australian beach and in most waterways. The obviousness of the risk and the reasonableness of an expectation that swimmers would take care for their safety were relevant factors in the outcome. But it would be wrong to take those considerations out of their factual context. In Vairy and Mulligan the source of the risk was a natural phenomenon that was not unusual; the risk was not created or exacerbated by the Council; it was one of many potential risks inherent in the natural environment and, it would be illogical to single out one hazard with the unreasonable consequence that warning signs would litter the landscape. A change in a relevant variable, such as the defendant creating or increasing the risk of

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harm, can materially alter the assessment of what is a reasonable response: Ainger v Coffs Harbour City Council [2005] NSWCA 424.

49 Of significance to the appellant's argument in this case is McHugh J's statement in Mulligan that the standard of care required of a public authority towards entrants on land under its control was determined by reference to the entrants as a class. He said at [18]:

" … it should now be accepted that the duty of care owed to entrants on public land is a duty owed to them as a class, and not to each of them as individuals. In so far as a public authority owes a duty to an individual entrant, it is correlative with the duty to the class and is not measured by reference to the personal characteristics of that individual member."

50 Thus, in Mulligan the appellant's knowledge of the risk of diving in the creek was not relevant to the breach analysis except insofar as his knowledge might indicate the knowledge of channel users generally. McHugh J concluded that swimmers generally were aware that there were widespread variations in the depths of creeks and rivers and in the circumstances reasonableness did not require a warning sign. There may be some support for McHugh J's position in those passages in the judgments of Hayne J in Vairy and Mulligan where he emphasises that the breach analysis is prospective, not retrospective by reference to what actually happened to the particular plaintiff. I am not persuaded that he was intending to address the same issue as McHugh J.

51 However, it is unnecessary to determine whether the proper course in determining the reasonableness of the response to a foreseeable risk in this case is to focus on the knowledge and personal attributes of the appellant or a reasonable person in the appellant's position (as Callinan and Heydon JJ did in Vairy) or on the range of attributes to be represented in the class (as McHugh J does in Mulligan). I am satisfied that cyclists generally would be expected to be aware of the risks of riding in soft sand and attempting to dismount close to the river.

52 Against that background, I go now to the substance of the appellant's case on breach. Grounds 6.7, 6.8, 6.9, 6.10 and 6.11 are related and raise the adequacy of the signage. The appellant's case was conducted, at trial and in the appeal, on the basis that it was necessary to first establish that the dismount and other signs were ambiguous. That is, the appellant accepted that a clear and unambiguous direction to cyclists to dismount from their bicycles on the dual use path would be an adequate and

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reasonable response to the risk created by the respondent. The appellant contended in the appeal that (a) the signage (the dismount sign and the chevron sign) did not direct or warn cyclists to dismount on the dual use path or, at least, did not unambiguously do so; (b) in assessing (a) and the obviousness of the risk, regard must be had to cyclists as a class not to the appellant in particular; (c) as the respondent created the risk, reasonableness required the cyclists to be directed or warned to dismount on the dual use path and not in the sand section; (d) that could have been achieved simply and without undue expense or inconvenience by an unambiguous sign directing or warning cyclists to dismount on the dual use path, or by an appropriately placed sign together with plastic mesh on the boundary between the dual use path and the sand section leading to a confined (and defined) area for crossing the sand section to the river wall; (e) alternatively the respondent should have sealed the sand section or erected a barrier on the southern side of the river wall capping to physically prevent cyclists from falling over the edge.

53 I start with the trial Judge's finding in par 33 of his reasons that "such danger" as may have been foreseen by diverting traffic to the river wall was accommodated by the signage used and the related finding in par 22 that the appellant intended to ignore the signs. As already noted, the risk is of cyclists falling into the river because of dismounting or attempting to dismount after leaving the dual use path.

54 I accept the appellant's contention that the content and placement of the signage (in the sand section in front of the plastic mesh barrier) would not convey to cyclists generally that they were directed or cautioned to dismount on the dual use path. The signs are silent on the question of where to dismount. The unambiguous purpose and effect of the signage is to put cyclists on notice of a diversion from the dual use path to the river wall and to direct cyclists to dismount at some unidentified place and walk on the river wall capping. In those circumstances, I see no justification for rejecting the appellant's evidence that the dismount sign did not indicate to him where he should dismount. Accordingly, to the extent that the challenged finding in par 33 is confined to signage, I would uphold ground 6.9 and so much of grounds 6.7, 6.8 and 6.10 that suggest the appellant intentionally ignored the dismount sign when he failed to dismount on the dual use path.

55 However, a contextual reading of pars 33 - 39 of the trial Judge's reasons suggest his conclusion on the reasonableness of the respondent's response to the risk was based on the signage together with the obviousness of the risk posed by not dismounting on the dual use path. It

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can be accepted that the risks associated with the sand section and the unguarded southern edge of the river wall were obvious to cyclists generally, including the appellant. However, the obviousness of the risk does not necessarily answer the question in issue which is whether the signage was a reasonable response. In my view it was not. The respondent diverted cyclists from the dual use path across the sloping sand section to the river wall and in that way created, or at least very significantly increased, the risk of the harm that eventuated. I accept that there were no safer or practical alternative routes or options short of closing this section of the cycle path for the period of the works. But on any view, the diversion area created significant safety risks for cyclists. In that factual context it is not, in my view, reasonable for the respondent to assume or expect that all cyclists would take reasonable care for themselves by dismounting on the dual use path. To the contrary, this is a situation where the prospect of cyclists commencing or attempting to dismount in the sand section was the very hazard that required the respondent to take proper precautions. The respondent, in creating the risk, should have anticipated that some cyclists would attempt to dismount after leaving the dual use path at the diversion area with the attendant risk of loss of control of the bicycle and falling from the edge of the river wall.

56 Further, I am not persuaded that the degree of the probability of the occurrence of the risk is correctly described as remote although the result would be the same even if that was the case. As it is not reasonable to assume or expect that all cyclists would act carefully or without inadvertence, that negates the weight which might otherwise attach to the obviousness of the risk. Further, having regard to the extent of the drop and the rocks at the base of the river, there was a risk of significant injury. The remaining question is the expense, difficulty and inconvenience of taking alleviating action. The appellant is confined to his particulars. I agree with the trial Judge for the reasons he gives that particulars (a), (b) and (f) were not practical or feasible alternatives. That leaves the failure to warn cyclists to dismount on the dual use path before crossing to the wall and the erection of a barrier fence in the vicinity of the diversion area.

57 The appellant relied on two practical ways of giving an effective warning to cyclists. The first was a clear and unambiguous sign appropriately positioned at or just before the diversion point directing cyclists to dismount on the dual use path before crossing to the river wall. The second was an unambiguous sign together with plastic meshing on the southern edge of the dual use path creating a practical barrier and controlling the cross-over point to the river wall capping. I accept these to

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be a reasonable response to alleviating the risk. Although "warning" becomes effectively a dismount direction, it is in my view within the scope of the particulars.

58 As to the erection of a partial barrier fence, the trial Judge concluded that such a fence would only be necessary if it was intended that cyclists ride on the concrete river capping. The respondent pleaded in its defence that such a barrier could not be securely fixed to the river wall and would or might encourage people to lean or climb on it in the belief that it was robust enough to withstand such use and further that it was unreasonable to expect a barrier having regard to the nature of the works, their costs and duration. The trial Judge did not expressly rule on these claims but they are implicitly rejected in the trial Judge's conclusion that it was unnecessary. There was no notice of contention that a barrier fence was unreasonable. Further, the evidence establishes that by 1 March 2000 a scaffold barrier was installed on the southern edge of the river wall capping in the diversion area. I am not persuaded that the cost or any difficulty or other inconvenience would render what I conclude is a prima facie reasonable response otherwise unreasonable. In summary, I am satisfied that the respondent breached its duty by failing to direct cyclists to dismount on the dual use path and in failing to erect a barrier fence on the river wall in the diversion area. I turn now to the question of causation.

Causation (ground 4)

59 There are difficulties in the trial Judge's approach of dealing with causation before determining the issues relating to duty of care and breach. For a defendant to be liable in negligence a claimant must establish first a duty of care owed to him or her; second, a breach of that duty; and third, a causal connection between the damage sustained and the breach of duty, which damage must not be too remote from the breach. Until the Court determines the nature and extent of a defendant's breaches (if any), the third question of causation cannot be determined. Further, the breach analysis requires the Court to focus on the putative tortfeasor's conduct, in particular whether his or her failure to eliminate the relevant risk of harm showed a want of reasonable care and the test is objective. On the other hand, the test of causation is subjective: Rosenberg v Percival (2001) 205 CLR 434 at [44] per McHugh J; [87] per Gummow J. Thus, in considering questions of causation, the appellant's knowledge and likely response will be relevant to the question of whether the breach of duty caused the accident. The appellant's knowledge is also relevant

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when considering matters relating to any contributory negligence and the defence of voluntary assumption of risk.

60 Addressing causation before determining the particulars of breach led the trial Judge into error. He combined questions of how the accident occurred with conclusions relating to breach and factual and legal causation and suggested that his finding that the appellant caused the accident foreclosed a finding that the respondent also caused it. That is wrong in principle. The appellant was required to establish that his injuries were caused or materially contributed to by the respondent's wrongful conduct: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 . A defendant's negligence can be a cause of a plaintiff's injury even though the immediate cause was the plaintiff's conduct.

61 I see no proper foundation in the evidence, the findings or the reasons for the trial Judge's conclusion in par 22 that "the pleaded negligence could not be causative of the fall", and in particular, why a failure to erect the barrier on the edge of the river wall capping at the diversion area did not materially contribute to the appellant's injuries. Having regard to the test of causation (see Bennett v Minister for Community Welfare (1992) 176 CLR 408 at 422 - 423 per Gaudron J), I am satisfied that the failure to fence the relevant area caused or contributed to the appellant's injuries.

62 The position in relation to the failure to direct (warn) cyclists to dismount on the dual use path raises different causation issues. In that case, the question of whether injury would have occurred but for the negligent conduct cannot be answered without asking the further question about what the appellant would have done but for the omission. As the trial Judge concluded that there was no duty to warn because a direction to dismount on the dual use path had been given and because of the obviousness of the risk, he did not make a finding as to what the appellant would have done if a direction or warning had been given. I have concluded that no such direction or warning was given. That is consistent with the appellant's evidence that he did not interpret the sign as a direction or warning to dismount on the dual use path and that he thought he was obeying the sign in dismounting in the sand section. This evidence is not inconsistent with Mr Harwood's evidence and thus was not rejected by the trial Judge. If accepted, it would support a finding of causation. In any event, I am satisfied that as a result of proving that the respondent breached its duty to warn cyclists to dismount on the dual use path and the risk of not doing so eventuated, the appellant made out a primafacie case of causation, which in the absence of evidence to the

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contrary, justifies a finding of causation: Bennett v Minister for Community Welfare(supra) at 420 - 421; Rosenberg v Percival (supra)at 461. I am satisfied that the trial Judge erred in failing to find that the respondent's breaches caused the injuries. I would uphold ground 4.

Voluntary Assumption of Risk and Contributory Negligence (Notice of contention)

63 The trial Judge did not deal with the respondent's defence of voluntary assumption of risk. The respondent was required to prove that the appellant (1) was aware of the facts constituting the danger, (2) fully appreciated the danger in the factual circumstances and (3) encountered or submitted to the danger freely and willingly. Negligence or a failure to exercise reasonable care by the appellant that would justify a finding of contributory negligence falls well short of the conduct required to establish a defence of volenti. On the appellant's evidence he did not have a full appreciation of the extent of the risks posed by the diversion to the river wall. Any conclusions by the trial Judge to the contrary are based on the findings that I have concluded were not reasonably open. The respondent failed to establish that the appellant, with full knowledge and appreciation of the nature and extent of the risks, freely, willingly and intentionally submitted himself to them. I would dismiss this ground. However, I am satisfied that the appellant was contributorily negligent. As the parties did not address the question of apportionment, I would remit that matter to the trial Judge for assessment together with the assessment of damages.

Conclusion

64 I would allow the appeal and set aside the judgment. I would dismiss ground 1 of the notice of contention. Otherwise I would remit to the trial Judge the question of the extent of the appellant's contributory negligence.

65 PULLIN JA: This is an appeal against the judgment of Williams DCJ, who dismissed the appellant's claim against the respondent for damages for personal injury.

66 The appellant was injured on 22 February 2000. He was riding his bicycle along the paved dual use path ("DUP") which runs alongside the Swan River. He fell off his bike and over the river wall and injured himself. He then sued the respondent.

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The nature of the appeal to this Court

67 Usually it is not necessary to set out the role of the Court of Appeal, but I will do so because of recent High Court decisions which stress the obligation of this Court, and other intermediate appeal courts, to conduct a thorough examination of the record and a real rehearing. In Commissioner of Main Roads v Jones (2005) 79 ALJR 1104 Callinan J, between [71] and [73], sets out the statutory and other law which governs an appeal to this Court from the District Court. His Honour explained that the right of appeal is conferred by s 79 of the District Court of Western Australia Act, jurisdiction of the Full Court (now the Court of Appeal) is conferred by s 58 of the Supreme Court Act and that the "ample" and "unconfined" powers of the Full Court were stated in O 63 r 10(2) of the Rules of the Supreme Court 1971 (WA) which read:

"(2) The Full Court shall have power to draw inferences of fact and to give any judgment, and make any order which ought to have been made, and to make such further or other order as the case may require."

68 By the Acts Amendment (Court of Appeal) Act 2004 the appeal, being one pending before the Full Court at the time that Act came into force, is taken to have been commenced and pending before the Court of Appeal. By r 4(2) of the Supreme Court (Court of Appeal) Rules 2005, the Rules of the Supreme Court, as they stood when the Act came into force, continue to apply. Order 63 r 10(2) therefore applies in this case.

69 Callinan J in Jones' case said that the provisions in this State are different from those regulating the Court of Appeal of New South Wales, but that they do not dictate any different approach to appeals from the latter which were considered by the Court in Fox v Percy (2003) 214 CLR 118. In Fox v Percy the Court said at [25]:

"Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] on inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'."

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70 In Manley v Alexander (2005) 80 ALJR 413, Gummow, Kirby and Hayne JJ confirmed that Callinan J had correctly set out the statutory provisions governing the task to be undertaken by this Court and that the principles governing the appeal were those stated by the High Court in Fox v Percy.

71 In CSR Ltd v Della Maddalena [2006] HCA 1, Kirby J (Gleeson CJ agreeing) said at [16] that the appellate court:

"is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. … Having conducted a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing … inferences and conclusions'."

72 Neither these comments, nor what the Court said in Fox v Percy, mean that once an appeal has been instituted the Court of Appeal is obliged to review the whole case without regard to the contentions of the parties. The appeal is part of the adversary process which results in a resolution of a dispute between parties. Once a judgment has been pronounced, it is authoritative until set aside. In Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [30] Allsop J (with whom Drummond and Mansfield JJ agreed) said that an appeal should succeed only when the views and conclusions of the Judge at first instance have been shown to have been wrong. His Honour said that the views and conclusions of the Judge at first instance "should not be laid to one side and a simple re-argument of the case take place". This was referred to with approval by Moore, Mansfield and Dowsett JJ in Zhang v Minister for Immigration [2005] FCAFC 30 at [17].

73 If no error is alleged and found to exist, then the Appeal Court cannot interfere with the judgment below. So much is clear from Fox v Percy, where Gleeson CJ, Gummow and Kirby JJ said, at [27], that if the Court concludes that an error has been shown, the Court is then (and in my opinion, only then) "authorised and obliged" to discharge appellate duties in accordance with the statute. Those appellate duties, are under

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O 63 r 10(2), to give judgment and make any order which ought to have been made or to make further or other order as the case may required.

74 In summary therefore, in deciding whether an error has been made, the Court of Appeal does not set out on its own to try and detect error. It is for the parties involved to allege error, and it is in the process of deciding whether or not the allegation can be borne out, that the Court is obliged "to conduct a thorough examination of the record and a real re-hearing."

The facts in this case

75 The appellant is a medical practitioner. He is an experienced bike rider. He often rode his bicycle to work. His wife would drive him from their home to the University of Western Australia. He would then ride his bike along the DUP to the Narrows Bridge and thence over the bridge to his office in Como.

76 The respondent was, at the time of the accident, carrying out work which involved pulling up of the existing DUP and the installing a new one, and repairing the river wall and the concrete capping on top of the river wall. The appellant was aware that this work was being carried out.

77 On 22 February 2000, the work was being carried out adjacent to the old Swan Brewery building. The DUP runs on the river side of the building. The DUP was 3 metres wide. On the river wall was the concrete capping which was 1.5 metres wide. The distance between the DUP and the concrete capping was about 1.8 metres. The river capping was 140 mm lower than the level of the DUP which meant that the area between sloped down about 8 degrees. From the top of the river wall to the river and the rocks below was about 1.6 metres. The area between the DUP and the concrete capping, some distance back from the old Swan Brewery building, was covered by lawn, but in a small area just before the point where the accident occurred, the lawn had been pulled up by the respondent. In its place was sand and small amounts of concrete rubble.

78 On 22 February 2000 the appellant was riding as usual from the University towards Perth. He saw ahead of him that work was being carried out on the DUP. He saw that there was a plastic mesh barrier across the DUP and just in front of the plastic mesh barrier was a sign erected on steel posts driven into the ground immediately alongside the DUP reading:

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"CAUTION!
CYCLISTS
DISMOUNT
& WALK"

The steel post holding the sign was driven into the section of land between the edge of the DUP and the river capping.

79 Even without the sign it was quite obvious that a person could not continue to ride on the DUP in the direction of Perth, not the least because of the mesh which formed the barrier. There were chevron signs indicating that a person wishing to pass the old Swan Brewery building would have to do so along the capping on the river wall.

80 The sign quoted above unambiguously requires caution to be exercised and unambiguously instructed cyclists to dismount and walk. It was criticised by the appellant. The appellant said that it did not say that it was necessary to dismount while still on the path and it did not say that a person should not ride off the DUP into the sand and then dismount. The appellant called a bicycle track design expert, a Mr Stallard, who expressed an opinion that:

"Its placement was vague in that it was located within the unsealed section of ground and so it may not be clear to a person approaching where they were intended to stop."

81 This was not a subject where expert opinion was necessary to assist the Court in reaching a conclusion. In my opinion, the adequacy of the sign and its location was a matter to be decided by the Court without any expert evidence. Even if the evidence be acceptable as expert evidence, it is the point on which the Court had to reach a conclusion. His Honour found, at [21], that the warning sign was adequate to "warn and inform and did warn and inform the plaintiff of the diversion", and held that the plaintiff observed the warning sign in plenty of time to "take the direction [sic] action (dismounted)". One of the particulars of negligence was that the respondent failed to warn the plaintiff to dismount on the sealed tarmac at a distance from the barrier and not in the soft sand. As to that, his Honour held at [51] and [52]:

"51 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.

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52 This particular of negligence fails."

82 In relation to particular (d) of negligence, which was a generalised allegation of failure to warn the plaintiff of the presence and danger of the soft sand, his Honour held:

"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."

83 This Court is in as good a position as the trial Judge to draw a conclusion about the adequacy of the sign in the circumstances which prevailed at the time. In my opinion the sign, which could be read at least 80 metres before it was reached by a cyclist, spoke to the cyclist while the cyclist was on the DUP. It gave a warning that caution was necessary and it gave an instruction to the cyclist who was on the DUP that he should dismount and walk. This would reinforce what would be obvious to any reasonable cyclist. A cyclist knows that, to stay balanced on the cycle, it is necessary to keep forward motion going. They would know that if they slowed almost to a stop there was a danger of falling off. Any person who had ridden a bike would know that turning off the DUP towards the nearby river wall, riding into sand, particularly sand containing rubble, and onto the river wall capping could be dangerous. Riding on the narrow capping carried the risk of falling over the river wall. The caution and the instruction on the sign therefore stated what any reasonable bike rider would perceive about the situation as he or she approached the works area.

84 In my opinion, it was unnecessary for the sign to say anything about not dismounting in the sand or to say that cyclists should dismount on the DUP. In my opinion the clear message conveyed by the sign was that cyclists should dismount and then walk from the DUP across the sand and along the river wall capping.

The disputed area of evidence

85 The only significant dispute on the evidence was about what the appellant did just before he fell into the river. The appellant freely acknowledged in his evidence that he knew that it would be dangerous to attempt to "traverse" the sand. A cyclist attempting to do that would have to turn to his or her right, off the DUP, and then ride towards the river edge through soft sand containing some rubble.

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86 He said that he did not traverse the sand. He began reducing his speed from about 26 kms per hour, at which he had been travelling in the earlier part of his journey, as soon as he saw the sign. This was 80 metres back from the sign. He said he merely rolled into the edge of the sand and after he had travelled into the sand for a distance between "nought" and ".8 metres", he had put his left foot down on the sand. He said he then felt his handle bars twist to the left and by some mechanism not made entirely clear, he said he toppled not to his left but to his right. Photographs showing a reconstruction of what happened show him leaning to the left rather than to the right. His evidence therefore was that he did not reach the capping. He denied he attempted to ride along it. He knew that it would be dangerous to do. He well-understood the sign to mean that he had to dismount and walk his cycle along the capping.

87 There was however a witness to the incident. A Mr Harwood was working on the river wall. He was standing on the rocks which were at the edge of the water and was working to replace rocks around a pipe which came out of the river wall. He said the river wall was about 1.66 metres in height where he was working. Something caught his eye and then he saw the appellant, who was about 15 metres to the west of him. He said that the appellant was on the capping on the river wall. He had both his feet on the pedals. He appeared to be pulling up and he was almost stationary. By looking down at his feet the appellant gave Mr Harwood the impression that he was trying to remove his feet from the stirrups on the pedals. For a moment he thought that there was a danger that the appellant would topple into the river, but he appeared to recover. He looked away for a space of "up to five seconds" (AB 225) and then he looked up again and saw the appellant as he "somersaulted into the river". Mr Harwood was cross-examined, but held to this account of what happened. Mr Harwood went to help. The appellant said to Mr Harwood "What a silly thing to do" or "What a stupid thing to do" and said "I couldn't get my feet out. I couldn't get my feet out of the stirrups as I came down through the sand."

88 This was an account which was different from that of the appellant. It was an important difference in the context because the appellant had conceded that he knew that the sign required him to dismount and walk along the capping on the river wall. He knew it would be dangerous to ride his bike and by that meant dangerous to ride his bike to traverse the sand. If Mr Harwood's account be accepted, then the appellant had traversed the sand on his bike, he had not dismounted and he was attempting to ride on the river wall capping in defiance of commonsense

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and in defiance of the instruction given by the sign he had read and understood.

89 Sometime after the accident, the appellant gave to Mr Stallard a written statement containing an account about what had happened in the accident. In this account he said that he had attempted to lift the front wheel of his bike from the unsealed section (that is where the sand was) onto the "river capping". Mr Stallard took a photograph of the appellant with the front wheel of his bike on the river capping. That was not consistent with the evidence that he gave at the trial which had him over-balancing after he had rolled only a short distance into the sand. Mr Harwood's evidence was consistent with a contemporaneous statement which he gave immediately after the accident and which he dated 23 February 2000.

90 The trial Judge very carefully considered all of this evidence. His Honour noted the discrepancy between the evidence about how the accident occurred and the version the appellant gave to Mr Stallard, and referred to the evidence of Mr Harwood. His Honour also referred to what he thought was the improbability of the accident occurring in the way in which the plaintiff described in his evidence. This was because it would seem to put the appellant too far from the river wall to fall over it if he over-balanced just after he had entered the sand section.

91 At [20] of his Honour's reasons for decision, his Honour said:

"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."

Ground 5

92 This conclusion is challenged in par 5 of the notice of appeal and it is logical that I deal with it first. Ground 5 reads:

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"The trial judge erred in fact in failing to find or in failing to assess the witness Harwood's evidence in reference to the following:

5.1 Harwood's statement dated 23 February 2000 corroborated the evidence of the appellant;

5.2 If Harwood's evidence at trial differed in material respects from the contents of the statement it was mistaken;

5.3 Harwood's evidence at trial did not explain the Appellant's (Plaintiff's) loss of control of his bicycle;

5.4 If there were differences between the evidence of Harwood at trial and the evidence of the Appellant (Plaintiff) then they did not require rejection of the Appellant's (Plaintiff's) evidence or that his case be dismissed."

93 As to 5.1, it is said that Mr Harwood's written statement corroborated the evidence of the appellant. In my opinion, Mr Harwood's statement did not do so. The statement by Mr Harwood dated 23 February 2000 read:

"At around 7.40am on Tuesday 22/2/00 I was working in the water at the base of the retaining wall at the western end of the Old Swan Brewery. I looked up in time to see a man on his cycle on the footpath 15 metres to the west of me. His foot or feet appeared to be caught in the stirrups of his pedals. He was almost stationary, but moving slightly towards the edge of the wall. After a brief moment of appearing to be heading over the edge he recovered his balance a little, but once again moved towards the edge of the concrete walkway, and still seated on his bike, tumbled head first into the river. I moved quickly to his aid, asking how I could help and where he was injured, at the same time supporting him in the water. Two other cyclists dragged the man up onto the wall. I stayed with him and phoned his wife and an ambulance. … The injured cyclist identified himself as Mr Andrew Marsden - a doctor. Mr Marsden confirmed to me the trouble had occurred because he could not free his feet as he came through the sand trying to dismount."

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94 The reference to the footpath was a reference to the capping on the river wall. His Honour did not "fail to assess" Mr Harwood's evidence by reference to that statement.

95 In relation to ground 5.2, the ground is premised by the word "if". It therefore reads that "if Harwood's evidence at trial differed" then it was a matter which the trial Judge had failed to take into account. In my opinion the evidence at trial given by Mr Harwood did not differ in material respects from the statement that he gave.

96 With respect to 5.3, Mr Harwood's evidence did indeed explain how the appellant lost control of his bicycle. Mr Harwood's evidence reveals that the appellant did not proceed only a short distance into the sand. Mr Harwood's evidence reveals that the appellant, knowing of the danger and being aware that the sign which instructed him to dismount and walk, ignored the instruction, ignored the obvious danger of traversing the sand on his bike and rode onto the capping. He could not extract his feet from the pedals when he was travelling very slowly (undoubtedly because he had turned right off the DUP and traversed the sand) and fell into the river. The appellant lost control of his bicycle because he "traversed the sand", something that was dangerous to do.

97 As to 5.4, the evidence of Mr Harwood did require the rejection of the appellant's evidence. The appellant's evidence was that he started to dismount from the bike, that he put his foot down in the sand, that he did not traverse the sand, and that he did not attempt to ride on the river wall capping. It is quite clear, on Mr Harwood's evidence, that he traversed the sand. This slowed him up to the point where he was in danger of over-balancing; he attempted to continue to ride along the capping, found that he could not extract his feet from the stirrups on the pedals and fell into the river.

98 I would therefore reject ground 5 of the notice of appeal. Once the findings are made about what the appellant did just before he fell, the facts are not in dispute. The measurements of the path, the capping, the height of the river wall and the distance between the capping and the DUP were matters which became uncontentious. There was a little contention about some other signs which were erected, but there is no dispute that the sign that I have referred to above was in place. There was no dispute that work was being carried out on the path. There was no dispute that there was a plastic mesh across the DUP and no dispute about the existence of sand between the DUP and the capping.

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The other grounds of appeal

99 The grounds of appeal are of excessive length. Including ground 5, which I have already dealt with, there are said to be six grounds of appeal, but in fact they break up into 36 separate grounds. This is surprising given the simple set of facts underlying this case.

100 Ground 1 raises a question of law about the correct statement of the duty owed by the respondent. Ground 2 and its subparagraphs contends that there should have been a finding of breach of duty. Ground 3 and its subparagraphs raise points which all depend upon the Court accepting the appellant's account of what happened just before the accident. Ground 4 is a complaint about causation. Ground 6 contains 15 paragraphs and one of the paragraphs contains three subparagraphs, each one making a complaint about a finding of fact which is said to be in error.

101 Grounds of appeal should be simply and shortly stated. See Sansom v Sansom [1956] 1 WLR 945. The grounds of appeal, and particularly those in ground 6, are badly organised, repetitive and at times contain assertions of error which cannot be supported other than by the assertion itself.

Ground 1

102 The first ground of appeal alleges that the trial Judge erred in law by "failing to find" that a duty of care was owed by the respondent to cyclists as a class and not just to the appellant. It is correct that, in stating the duty of care, it is necessary to state it by reference to the particular class of persons who may be affected. McHugh J, who at one stage considered the duty should be defined solely by reference to the particular plaintiff, finally accepted that this was not so. In acknowledging this, his Honour in Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 set out the relevant authorities on the point. See [15] - [18]. The duty owed to the particular plaintiff is ordinarily owed to him or her as a member of the public or class of the public. See Vairy v Wyong Shire Council (2005) 80 ALJR 1 at [6] per Gleeson CJ and Kirby J.

103 Ground 1 of the notice of appeal contends that the trial Judge failed to find that the respondent "owed to cyclists who used the dual use path a duty to exercise reasonable care not to create reasonably foreseeable risks of injury whilst making alterations to the dual use path." I do not agree that his Honour erred.

104 His Honour said at [23]:

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"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: …"

105 I read this as a fair statement of the law. It was not a statement that the duty was owed only to the appellant. There was a point raised during argument about the need to define the particular danger or risk of injury to be guarded against, but the particular risk to be guarded against seems not to have been in dispute either in this Court or in the Court below. It was clearly foreseeable that if a person riding a bicycle attempted to continue the journey by riding off the DUP through the sand and via the river wall capping, that they would be at risk of falling into the river and being injured on the rocks below. At [34] his Honour said:

"The existence of the river wall and the lack of fencing adjacent to it was obvious and extended over several kilometres."

106 Returning however, to ground 1 of the appeal, I am of the opinion that it has no merit because, in my opinion, his Honour did conclude that a duty of care was owed to "those" who might be exposed to the danger, ie to a class of persons, namely cyclists, using the path and not merely to the appellant.

Ground 2

107 I now turn to ground 2.1. This contends that the trial Judge should have found that there was a failure to exercise reasonable care to avoid injury by the respondent in circumstances where it had created a "dismounting area" that was a hazard for cyclists. This "dismounting area" was said to be the sand between the DUP and the capping. In my opinion that assertion has no merit. The sand was not a "dismounting area" and there was nothing to suggest that it was. The sign was placed so that it could be read on the DUP. It was clearly visible and understandable to a rider 80 metres away from it. It did not say, or even hint, that dismounting should take place in the sand alongside the DUP. On this basis, this ground must be dismissed.

108 There is a vague assertion in ground 2.2 that the respondent "could have avoided, but did not avoid, the hazard with little or no difficulty or expense". During the hearing it was suggested that a barrier fence could have been erected on the capping, but this may have encouraged people to try and continue to ride their bicycles along the capping, bringing with it the risk of collision with oncoming riders. In my opinion, if cyclists did what was obvious should be done, and if they complied with the warning,

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then there was no risk. There was no risk of injury if they walked along the capping rather than attempted to ride their bicycle. In my opinion, only a sign was required in order for the respondent to discharge its duty of care.

109 Ground 2.3 raises an issue about non-compliance with Austroads Part 14. This is a standard available for adoption in contracts or by statutory authorities, concerning the construction and maintenance of cycleways. It can be accepted that it represents "the consensus of professional opinion and practical experience as to the sensible safe precautions" in relation to the design of cycleways and in the maintenance of cycleways. See Onetech Pty Ltd v Shaw [1999] WASCA 289 at [17]. I agree with the trial Judge however, that this standard was directed to the safety of cyclists. The purpose of the sign erected by the respondent was to instruct cyclists to become pedestrians. The Austroads Part 14 has nothing to do with pedestrians and the sign, if complied with, would have converted cyclists into pedestrians. There was therefore no negligence in failing to comply with any of the provisions of Austroads Part 14. The trial Judge reached the same conclusion.

Ground 3

110 Ground 3 is drawn on the assumption that what happened before the appellant fell was in accordance with the appellant's evidence and not in accordance with Mr Harwood's evidence. The appellant's evidence on this point was not accepted. I have already concluded that there was no error by the trial Judge on that point and this ground must therefore be dismissed.

Ground 4

111 Ground 4 assumes that negligence is established, ie that there was a breach of the duty of care owed by the respondent to cyclists. The ground contends that the appellant's "fall into the river and his injury" were caused, or materially contributed to, by that negligence. In my opinion the learned trial Judge was correct in his conclusion that the appellant was not negligent. I have dismissed ground 2 which alleges error by his Honour in relation to negligence. As a result this ground must fail. The appellant fell over the river wall because he had slowed while traversing the sand and then attempted to ride on the capping. He was going too slowly, he wobbled, he tried to extract his feet from the stirrups on his pedals, failed to do so and consequently fell into the river. The accident was therefore not caused by any of the pleaded negligence and the trial Judge correctly so found.

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Ground 6

112 There are 18 complaints about findings of fact in ground 6. Some are immaterial in the sense that even if error is revealed, no miscarriage of justice is shown. Some are repetitive.

(a) 6.1

This ground asserts that the trial Judge erred in finding that the appellant "was not a cyclist" and that the standards in Austroads Part 14 were irrelevant. This ground is repetitive. The relevance of Austroads Part 14 was raised in ground 2.3 which I deal with above.

(b) 6.2

This ground alleges that the trial Judge erred in finding that the appellant advised Stallard that he was lifting, or had lifted the front wheel onto the capping. This finding was not erroneous. The appellant did advise Stallard that he was lifting, or had lifted the front wheel onto the capping.

(c) 6.3

This ground alleges the trial Judge erred in finding that there was a discrepancy between the appellant's evidence and the version he gave to Stallard. There was a discrepancy between the appellant's evidence and the version he gave to Stallard.

(d) 6.4

This ground alleges the trial Judge erred in finding that there was an obvious discrepancy between the appellant's description of how and where the accident occurred and the improbability or impossibility of it occurring in that way. This was not a material finding. It was merely an observation with which I agree.

(e) 6.5 and 6.10


Ground 6.5 alleges that the trial Judge erred in finding that the nature of the work, the surface and the area, the proximity of the river and the drop to the river below were all obvious to the appellant. This point is repeated in ground 6.10. It is alleged there that the trial Judge erred in finding that the physical circumstances were obvious and that, being obvious, there was no requirement for further measures to be taken.

I have concluded that the points referred to were all obvious to the appellant, but I should say more about the significance of

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"obviousness" in relation to a risk. It is clear that in carrying out the work on the DUP and the river wall, the respondent created conditions which exposed persons riding bicycles on the DUP to a potential and a foreseeable risk of injury. It was foreseeable that if cyclists continued riding their bikes they would have to travel off the DUP onto the capping on the river wall, and that many of them would do so by riding through the sand and rubble between the DUP and the river wall capping. The river wall capping is narrow and there was a real risk that a person riding a bicycle would fall into the river. Riding a bicycle over the sand and rubble towards the capping created its own special risks because of the fact that the cyclists would be partially facing the river and the fact that the sand created a sudden change of condition and contained some rubble. The risk of injury was not fanciful. See Wyong Shire Council v Shirt (1980) 146 CLR 40.

The question then is about what was required of the respondent as a reasonable response to the risk which was created and in discharge of its duty to take reasonable care to avoid the risk of injury. The appellant was not required under the contract to close off the area and prevent persons travelling to or from Perth. In any event, that would have in itself created its own hazards because it would have directed persons out towards Mounts Bay Road which runs the other side of the building. It would have been possible to erect guard rails along the river side of the river wall capping, but this may have encouraged cyclists to continue riding their bicycle on the river wall which would in turn have been unsafe because of the narrow width of the capping. The photographs suggest that it would be almost impossible for riders meeting each other to pass without collision.

In my opinion, it would have been obvious to any cyclists that the only safe course would be to dismount on the DUP and then walk to the river wall capping and to continue (past the work area) as a pedestrian and not as a cyclist. The sign instructed cyclists to do exactly that; to dismount and walk. Without the sign they may have been tempted to take that risk. However, the sign directed cyclists on the DUP to do what must have been obvious to them.

Obviousness is relevant when it comes to the question of whether there has been a breach of duty or not. See Vairy v Wyong Shire Council (supra) and Mulligan v Coffs Harbour City Council (supra) and the analysis of those cases by Ipp J in Consolidated

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Broken Hill Ltd v Edwards (2005) Aust Torts Rep 81-815. At [53] Ipp J concluded:

"Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care."

The question then is whether the erection of a warning sign was a sufficiently reasonable response in discharge of the respondent's duty. In Vairy v Wyong Shire Council (supra), Gleeson CJ and Kirby J said at [8]:

"It is impossible to state comprehensively, or by a single formula, the circumstances in which reasonableness requires a warning. … Often, the answer will be influenced by the obviousness of the danger, [and] the expectation that persons will take reasonable care for their own safety, …"

When considering the issue of "obviousness" in that case Hayne J, at [163], pointed out that the focus of the inquiry must remain upon the putative tortfeasor and not upon the person who has been injured and not upon others who may avoid injury. At [148] his Honour said that a warning sign seeks to convey information which an observer would not, or may not otherwise, have known, or seeks to remind the observer of something that otherwise would not, or may not, be considered. The sign in question here reminded cyclists of the need to avoid the obvious risk of injury by taking the precaution of dismounting and walking.

In my opinion, this was a reasonable response to that risk. It is necessary that warning signs be as simple as possible, lest readers become distracted by their length or ignore them. This sign was very simple. By it the respondent made a statement that caution should be exercised and instructed cyclists to deal with the obvious risk by dismounting and walking.

The appellant contended that the sign was inadequate because the respondent had created a "dismounting area" that was hazardous. I have already rejected the suggestion that the sand could have been perceived as a "dismounting area".

(f) 6.6, 6.7 and 6.8

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These grounds allege that the learned Judge erred in his findings about what happened in the few moments before the appellant fell into the river. These grounds assume ground 5 succeeds. Ground 5 did not succeed and so these grounds must be dismissed. In any event, if ground 5 had succeeded, these grounds would have been unnecessary.

(g) 6.9

This ground alleges that the learned trial Judge erred in finding that such dangers "as may have been foreseen by diverting traffic onto the river wall was accommodated by the signage used". In my opinion the sign was a sufficient discharge of the respondent's duty of care.

(h) 6.11

This ground alleges that the learned trial Judge erred in finding that the "sand was not a trap but was a usual and obvious boundary to the dual use path and one that any cyclist could be expected to safely negotiate having regard to the directive to dismount which had been given". This is not a material finding. But in any event I do not agree that the trial Judge erred.

(i) 6.12

This ground alleges that the learned trial Judge erred in finding that Exhibit 2 indicated that it was necessary to close the entire area off as the entire width was to be excavated and that the respondent adopted the only practical course open to it which was to instruct cyclists to dismount and walk. This raises an immaterial point. It does not matter whether Exhibit 2 "indicated that it was necessary to close off the entire area". The fact is that the area was closed off (whether it was necessary to do so or not) and in my opinion the sign was a sufficient discharge of the respondent's duty.

(j) 6.13

This ground alleges that the learned trial Judge erred in finding that 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 and that would make the situation more dangerous. I agree with his Honour's conclusion that if the area between the DUP and the river wall capping had been sealed, it may have encouraged cyclists to stay on their bicycles, and that would have created the risk that they would try and ride right

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along the river wall capping. In any event, this point is not material.

(k) 6.14

This ground alleges that the trial Judge erred in finding, in effect, that the sign told cyclists to dismount on, and only on, the dual use path. In my opinion the sign did speak to cyclists on the path. The subparagraphs to 6.14 are predicated on the appellant succeeding in its implied assertion that the sign was not understood as requiring cyclists to dismount on the DUP. In my view that was the meaning of the sign. The subparagraphs in 6.14 therefore do not have to be considered.

(l) 6.15

This ground alleges that the learned trial Judge erred in finding that the appellant's evidence was that he was well aware of the presence of the soft sand and its dangers. This ground once again assumes that ground 5 succeeds. Ground 5 did not succeed and so these grounds must be dismissed. In any event, if ground 5 had succeeded, this ground would have been unnecessary.

113 The appeal should therefore be dismissed.